NCAA Tourney Predictions

D-U-K-E. 'Nuff said. What do you think?

Mellow Yellow on SOTU

Creating Jobs: The President proposed a small business tax credit with the goal of encouraging businesses to hire workers or raise wages. However, business tax credits are apt for fraudulent uses. In this case, I could see instances where firms would fire a worker with a handshake agreement that they would be hired back after a period of time in order for the firm to obtain the tax credit. In my myopic opinion, if the President wants to create jobs while saying he’s fighting for the middle class, he can propose a payroll tax cut for populations he deems “middle class.” He could also leave the tax rates on capital gains to remain in place beyond 2010 to encourage business planning and investment and not just temporary fixes. Those are two ideas I’m still waiting to hear from the President.

Taxes: the claim that the President has cut taxes on 95 percent of Americans is hard to measure. Do we take the $400 payroll tax cut per worker than many had to pay back as a tax cut? Do we take the one dollar increase cigarette tax (a tax that disproportionately affects the poor) to pay for the expansion of child health care as a tax cut? Do we take the increases that businesses have to pay (400 percent increase for the Golden Inn in WI) in their unemployment taxes due to state unemployment fund deficits around the country as cutting taxes? I don’t know where the President’s figure comes from, but I have a hard time believing it.

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Deficit: I will say that the President has a point in stating that the last Administration added trillions of dollars to the debt via expanding entitlement programs, waging two wars and not controlling the budget to hold down spending (yes, I know the President blames the tax cuts). But to say that a spending freeze on non-entitlement, non-defense spending after increasing such spending by over a trillion dollars in one year with a Democratic Congress is something hard to believe is seriously meant to control the deficit. Perhaps some concrete reforms on reforming entitlements, taxes (yes, I said it) and discretionary spending would greatly help the President’s credibility on the issue of controlling deficits.

- Mellow Yellow

Obama and SCOTUS

President Obama's comment about Citizens United v. FEC in his State of the Union Address was way out of line: its was completely unprofessional, at least disingenuous — if not a lie — and directed toward a national audience that could not possibly appreciate the subtleties of the Court's decision.

First, as Georgetown professor Randy Barnett notes, "[n]o one could reasonably believe in their heart that this was respectful behavior." Surely, as Barnett says, "[t]his is not to deny that the Supreme Court may be criticized. . . . But not when the justices are in attendance as a courtesy to him, seated as a captive audience on national television, while surrounded by hundreds of his political partisans." His comment was unprofessional, and as Barnett notes later in his piece, comparable to Rep. Joe Wilson's "You lie!" outburst a few months back: "No one denied the right of a congressman to criticize the accuracy of the president's remarks. The objection was to the rudeness and disrespect shown the president." Obama's criticism of the Supreme Court is analogous to the South Carolina congressman's disrespectful cry.

Second, as Barnett also notes, Obama's claim was patently untrue. Normally, I might be inclined to give him the benefit of the doubt: maybe he misread the opinion. But here, I cannot: President Obama is a Harvard Law graduate and a former "Senior Lecturer" on Constitutional Law at Chicago. The legal question addressed in Citizens United was enormous. Yet, as Barnett writes,

. . . the substance of [Obama's] remark itself . . . . was factually wrong. The Court's ruling in Citizens United concerned the right of labor unions and domestic corporations, including nonprofits, to express their views about candidates in media such as books, films and TV within 60 days of an election. In short, it concerned freedom of speech; in particular, an independent film critical of Hillary Clinton funded by a nonprofit corporation. While the Court reversed a 1990 decision allowing such a ban, it left standing current restrictions on foreign nationals and "entities." Also untouched was a 100-year-old ban on domestic corporate contributions to political campaigns to which the president was presumably referring erroneously.

How could Obama not recognize this plain truth? Thus, what else could his error be but a lie?

Finally, Obama's comments were purely for political gain, because he directed them at a national audience that could not possibly understand the subtleties of the Court's Citizens United decision. Any law student will tell you that before actually reading cases and analyzing judicial reasoning (and even after a brutal 1st semester workload!), it is very difficult to parse a judicial opinion to determine its meaning. President Obama must have that ability (I hope, for Harvard's sake), but the TV audience he spoke to does not. Obama misled the average viewer by distorting the Court's reasoning to score political points with a populist appeal.

I can only "hope" that the "change" America wanted in the 2008 election was not blatant disrespect for the judicial branch and the separation of powers provided for by our Constitution — that separation of powers which, by the way, he flippantly cast aside to begin his commentary.

Who Is This Coakley, Anyway?

Over the past week, I have read news that the special election to fill out the remainder of MA Senator’s Ted Kennedy’s term has suddenly become a competitive race. Apparently Republican Scott Brown has made great strides in both fundraising and the polls against Democrat Martha Coakley. What intrigues me about this race is that Brown has been able to make these strides by arguing a conservative platform of limited government, tax cuts and tough on terror in a state where registered Democrats outnumber registered Republicans 3-1. But what really has helped Brown in this race is the incompetence of the Coakley campaign. Over the past week it seems like one potential head slapper comes from each day. Whether stating in a public debate that there are no more terrorists in Afghanistan, Catholic doctors shouldn’t be in the emergency room or Curt Schilling was a Yankee fan, Coakley’s statements make Sen. John McCain’s presidential rallies look professional (yes, I did endorse him, you can stop chuckling now). But what really concern me about Coakley are some judgment calls she has made as an elected attorney, particularly the case of the Amiraults. I still think she has a 60-40 chance of winning this Tuesday, but to think that Brown even has a realistic shot of winning this race is befuddling to me.

- Mellow Yellow (Mellow Yellow is a new contributor who writes his own blog. Mellow has given me permission to re-post his comments.)

Abortion v. First Amendment

"You can have religious freedom," [Martha] Coakley says, but "you probably shouldn't work in an emergency room." Source

Ms. Coakley's indifferent approach to religious freedom is somewhat frightening.

Perhaps Ms. Coakley also thinks that if you believe in creationism you shouldn't be a science teacher in a state whose curriculum teaches evolution only? I think Ms. Coakley's opinion is just the tip of the iceberg in this issue.

It goes much deeper: should we foreclose a market to qualified workers because they have a moral disagreement with an obligation that the State wants to impose on them? Or, does it make more sense to protect a person's religious freedom and re-evaluate the policy that threatens that fundamental right, guaranteed by the U.S. Constitution? Does federal law that funds abortions in a way that forces pro-life hospital workers to aid in the performance of abortion violate the First Amendment?

See Doe v. Bolton; Maureen Kramlich, The Abortion Debate Thirty Years Later: From Choice to Coercion, 31 Fordham Urb. L.J. 783, 797-98 (2003-2004) (discussing the Court's holding in Doe, that government may pass laws protecting the conscience rights of health care workers).

Get There Fast, Then Take It Slow

In his December 29 article, "Unhealthy Arrogance," Thomas Sowell asks a great question: "Why [rush to pass a health care bill] especially since the legislation would not take effect until years from now?" Truly, if passing a health bill is so vital for the American people, why are Congress' proposals, that absolutely had to be rushed through Congress, designed to basically do nothing until after 2012?

Charles Krauthammer recently pointed out a similar issue with the health bills: they claim to reduce our deficit, premised on faulty assumptions and the fact that the major portion of their spending doesn't kick in until 2014! When you take a realistic look at the numbers, the health care bill doesn't do what Democrats claim, but exactly what its critics contend: it explodes our future deficits.

Why do this? Why ram an unpopular health care reform bill down the throats of your constituents, while tailoring the bill to not take effect until after the 2012 elections, when voter turnout is largest? Politics. I can't think of any other plausible explanation. I suppose you could say this is "politics as usual," but I think Congress' behavior is despicable.

How Should We Treat Terror Suspects?

Dick Cheney and Republicans have been quite critical of the Obama Administration and its treatment of terrorists since the attempted Christmas Day bombing (1). Their criticism focuses on the president's "soft" treatment of terror suspects, which considers them basically common criminals instead of unlawful enemy combatants, the path the Bush Administration chose to follow in this regard.

Which path is the right path? The Obama Administration's proposals are definitely in line with the rules created by the Third Geneva Convention — which defines detained enemy combatants as prisoners of war, guaranteed certain rights in their treatment as detainees, if they follow certain guidelines for their conduct in war — and the Fourth Geneva Convention — which defines detained civilians and their rights as detainees.

Additionally, the Commentary to the Fourth Geneva Convention says:

"every person in enemy hands must have some status under international law: he is either a prisoner of war and, as such, covered by the Third Convention, a civilian covered by the Fourth Convention, or again, a member of the medical personnel of the armed forces who is covered by the First Convention. ' There is no ' intermediate status; nobody in enemy hands can be outside the law." (2-last ¶)

But, it does not seem that the type of person detained after trying to blow himself up on Christmas falls into either category provided by the Conventions. The Commentary attempts to close the gap created by the Conventions, but it does so in a rather obtuse, overbroad fashion — labeling all detainees as either/or. It is clearly outdated, given the new challenges governments face in protecting their homelands against a terrorist menace.

While it might seem that the result of following the Commentary's suggestion — that is, doling out constitutional liberties to terrorists — is reasonable because it supposedly errs on the side of "human rights," is it really? Is it really reasonable to afford constitutional protections to non-citizens who are clearly perpetrating (or attempting to perpetrate) acts of war on innocent Americans?

I think the Obama Administration unnecessarily gives constitutional protections to people who have not played by the rules in international warfare. If the Geneva Convention was designed to guarantee the rights of U.S. citizens to those who intend to destroy our free, democratic republic, then that intention is completely unclear in its construction. If that is the case, though, then perhaps U.S. lawmakers should reconsider our commitment to a document that would therefore be more interested in protecting the rights of terrorists than the lives of law-abiding, freedom-loving Americans. Is that really a "humanitarian" approach to international law?

References: (1) Dick Cheney: Barack Obama 'trying to pretend'

(2) Commentary to the Fourth Geneva Convention

(3) Third Geneva Convention (see Article IV(2))