SCOTUS: Dissenting Opinion Wins, Majority Opinion Fails, In My Opinion

Upon reading NATIONAL FEDERATION OF INDEPENDENT BUSINESS ET AL. v. SEBELIUS, SECRETARY OF
HEALTH AND HUMAN SERVICES, ET AL., it became evident early on that double talk was part of  Justice Thomas’ legal scholarship found in this case.  Immediately one question became apparent, which was how can the Government and the Majority Opinion argue that The Requirement to Maintain Minimal Essential Coverage, also known as § 5000A, is not a tax but a penalty in order to comply with the Anti-Injunction Act, but is a tax in order to be found constitutional?  Ironically, later in the brief, found in the dissenting opinion, the very question is asked, “The Government and those who support its position on this point make the remarkable argument that   §5000A is not a tax for purposes of the Anti-injunction Act, see Brief for Petitioners in No. 11-398 (Anti-Injunction Act), but is a tax for constitutional purposes, see Petitioner’s Minimum coverage Brief 52-62.” (Scalia, Kennedy, Thomas, and Alito, JJ., dissenting).   How does the Court decide to hear the case based on the argument that this is not regarding a tax, but rather a penalty, and how then does it decide that the Congress meant  a tax when it specifically used the term “penalty” eighteen times in § 5000?  The Majority Opinion minced the meaning of these words in order to uphold the Constitutionality of the Affordable Healthcare Act, while using the opposite term in order to find merit in hearing the case. Evidence of this is found in J. Roberts’ briefing on page 2 of the syllabus,

“But Congress did not intend the payment to be treated as a “tax” for purposes of the Anti-Injunction Act. The Affordable Care Act describes the payment as a “penalty,” not a “tax.” That label cannot control whether the payment is a tax for purposes of the Constitution, but it does determine the application of the Anti-Injunction Act. The Anti-Injunction Act therefore does not bar this suit. Pp. 11–15.

The dissent responded to this issue in these terms:

“What the Government would have us believe in these cases is that the very same textual indications that show this is not a tax under the Anti-Injunction Act show that it is a tax under the Constitution. That carries verbal wizardry too far, deep into the forbidden land of the sophists.” pg.27-28 of J. Scalia, J.Kennedy, J. Thomas and J. Alito’s dissenting.

A penalty implies that a law has been broken and justice must be served in the form of said penalty.  The Government argued that this is no longer a penalty but a tax for choosing not to spend income on the mandated health insurance requirement.  The Dissent argued that the Court has made a clear line between a tax and a penalty saying, “‘…a penalty…is an exaction imposed by statue as punishment for an unlawful act.'” (United States v. Reorganized CF&I Fabricators of Utah, Inc.).  The language that Congress used was specific to a mandated requirement and it attached a punishment in the form of a penalty to said requirement, not a tax.  The Court decided to rewrite the legislation, over reaching it’s powers, by changing the terminology from penalty, as prescribed by Congress, to tax, in order to find constitutional the Government’s petition that because Congress has the power to tax and  The Requirement to Maintain Minimal Essential Coverage is indeed constitutional.

Again Scalia in dissent states:

The values that should have determined our course today are caution, minimalism, and the understanding that the Federal Government is one of limited powers. But the Court’s ruling undermines those values at every turn. In the name of restraint, it overreaches. In the name of constitutional avoidance, it creates new constitutional questions. In the name of cooperative federalism, it undermines state sovereignty.

Justice Thomas and the majority became part of the Legislative Branch in their opinion.  Instead of letting  Congress correct the issues at hand, keeping it close to the people, and therefore allowing the people to have a voice and the ability to throw out of office those who do not listen to their concerns regarding this issue, the Court became sovereign in this matter by upholding the constitutionality of a section that affects the individual, as well as the State and the Nation as a whole.  Judicial activism joined hands with a Congress bent on pushing through a flawed legislation while ignoring the majority its citizens who voiced its disapproval of this bill. The Court has again changed the face of this Nation leaving “We the People” gagged and bound on this issue that most would like to see repealed.

According to Rassmussen, on Monday, June 25, 2012, the latest Rasmussen Reports national telephone survey shows that 54% of Likely U.S. Voters at least somewhat favor repeal of the health care bill, while 39% are at least somewhat opposed.  The report stated that most voters feel the same as they did when Congress passed the bill in March 2012, and that the desire for repeal has been steady for years.  The turn over in Congress after the bill passed, as well of the fight, and subsequent lawsuit demonstrates the voice of the people, and yet, the Court has found a way, through verbal shenanigans, to reword the Congressional bill, while ignoring the vast over reach of power that will ultimately hurt the very citizens for which the represent.

Ironically, the very people the Government says it desires to help, it hurts by strong arming the States to follow suit or look like the bad guy by refusing to go along with the new Medicaid expansion.  Once again this Administration passes the buck of responsibility for its policies onto others, only claiming victory when something positive happens.  The Court states that “Congress may not cross the ‘point at which pressure turns into compulsion, and ceases to be inducement.” (Steward Machine, 301 U.S., at 590. Accord, College Savings Bank, supra, at 687; Metropolitan Washington Airports Authority v. Citizens for Abatement of Aircraft Noise, Inc.). If this applies to States when they refuse to accept grants and money from the Government, how is it that the citizens that make up the States do not achieve the same meaning when they choose to not buy mandated insurance?  How is it coercion at the State level, but constitutionally acceptable at an individual citizen level?

The Administration ignores the very concept of balance of power put in place through Federalism by attempting to force the States hand into accepting the Medicaid Expansion.  J. Kennedy dissenting in Davis, states, “Coercing States to accept conditions risks the destruction of the “unique role of the States in our system.” Again, as stated in Printz, and presented in the dissent, “it may be state officials who will bear the brunt of pubic disapproval, while the federal officials who devised the regulatory program may remain insulated from the electoral ramifications of their decision.”

This is precisely what has happened to the individuals who make up the States and this very Nation.  The Federal Government that has ignored the voice of its electorate regarding this issue and by placing it in the hands of the Supreme Court, has taken away the built in electoral ramification and blocked its ears ignoring the people.  The Court itself has violated the citizen of the United States by disregarding this very argument when the individual is concerned. The ability to “un-elect” the Supreme Court Justices makes this ruling all the more grievous as it makes it all the more difficult to undo foolish policy.

When a State chooses not to accept the Medicaid Expansion, the Court finds the penalty as coercion and therefore unconstitutional;  but the Court finds, at the individual citizen level, the coercion of taxation for not accepting the Individual Mandate as constitutional.  The tax is not a tax, but a penalty, that becomes a tax and again and the citizens are hurt by the very people who are elected to be our servants.

All is not lost, but the fight for liberty has again been highlighted by a Government that has grown too big for its britches and a Court that continues to rewrite the Constitution that belongs to the People of the United States. We have the election, we can decisively fight back, but we cannot lay down, until the Government heeds the voice of its constituents and this failed legislation is repealed.

A final thought,

“The peculiar circumstances of the moment may render a measure more or less wise, but cannot render it more or less constitutional.” Chief Justice John Marshall, A Friend of the Constitution No. V, Alexandria Gazette, July5, 1819, in John Marshall’s Defense of McCulloch v. Maryland 190–191 (G. Gunther ed. 1969).

This ruling is less wise, it is unconstitutional and therefore we must fight back in the coming election.

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GOP Debate, The First of Many Interviews for a Leader

It’s back… the day of campaigning is upon us, with the kick off being the first GOP debate for presidential hopefuls.  The discussion has begun asking who is “Presidential Material” and of those who participated in the debate, who won. Conversations on talk radio run the gamut from  “Who can defeat Obama in 2012?” to “Who is the fiscal conservative?”  If the goal of the Republican  party is merely to soundly defeat Mr. Obama, then no one at this point seems to fit the bill; YET.

It is early, but each individual has been living a lifetime, and that lifetime represents whether he or she possesses the qualities that make for a strong, honest, courageous and Presidential character.

After searching the internet for thoughts on leadership and what makes  a good leader, I ran across this video.  The qualities found in leaders who have affected the world for the good can be summed up in what these young men describe as leadership.  Great leaders recognize their role as servants.  Great Presidents recognize their role as a servant of the people.

Numerous books and websites discuss what characteristics make a man or woman a leader.  These five leadership traits/leadership qualities  seem to resonate with those in the leadership business.

  1. Honest
  2. Forward-Looking
  3. Competent
  4. Inspiring
  5. Intelligent

It is good to see that honesty tops the list, as it is imperative for a leader to be trusted by others with power and decision making: yet humility is lacking in this list.  Humility allows a leader to lead by example. It is the trait that taught him to respect, serve,  and submit to the leaders in his life.  As stated by Aristotle,   “He who has never learned to obey cannot be a good commander.”

“Without vision, the people will perish,” according to the book of Proverbs.  A leader looks to the future, plans for the future, yet learns from the past.

Leaders must be competent.  In other words, they must have the needed skill, knowledge and ability to do what their job demands of them.  An individual running for President will not have all the working knowledge needed for such a powerful position, but one will be surrounding oneself with those who do have expertise in a given area. Competent leaders recognize that they need a support system to fill in those areas in which they are weakest.

Leaders are inspiring.  President John Quincy Adams said, “If your actions inspire others to dream more, learn more, do more and become more, you are a leader.”  A rousing speech may temporarily inspire, but it is what one does with one’s life that has lasting affects on others.  Inspiration is more than being charismatic, rather it is living a life worthy of emulation.

Leaders are intelligent.  They are not however found only in Ivy League Universities.  It seems that our culture has defined intelligence as being educated in the most prestigious halls of learning.  Merriam/Webster defines it as: “the ability to learn or understand or to deal with new or trying situations : reasonalso : the skilled use of reason(2) : the ability to apply knowledge to manipulate one’s environment or to think abstractly as measured by objective criteria (as tests).”  According to this definition, understanding and reason are foundational to intelligence.  One may have a gilded frame holding a parchment diploma from Yale or Harvard and yet be lacking in the area of intelligence.

The GOP must not choose a man or woman to serve as a presidential candidate because they are the best shoe in for victory over Obama.  We the people must be actively engaged in this interview process for the next President of the United States.  The leader of the free world works for us and we get to read the resumes and interview the candidates over the next few months to determine who is the correct man or woman for the job.  Our due diligence is mandatory in finding the leader who is humble, honest, forward looking, competent, inspiring and intelligent.  Of the 307,006,550 people living in the United States, someone must be exactly right for the job.



A Conversation About Home Schooling

Sixteen years of my life, thus far, have been dedicated to the education of my children.  I have home schooled all four and can proudly say, that it continues to pay in eternal dividends.  My first graduate is now a junior at Biola University studying journalism and effectively navigating the world of higher education.  My younger three are in high school and junior high, and they get to expand their home schooling horizons through the Biola STAR Academics program, where they take core classes, while enjoying the benefit found only in home schooling.  It has been a road less traveled and many times exhausting, but it has been worth all the late night preparations of essays and tears of “just not getting it” when faced with an algebraic equation.  The dividends that are gained through the diligent side by side work with my children, not just in their academic life, but as a family are priceless and something that could not be recreated if an institution had my children for 8 to 10 hours a day.  It is the best school choice we as a family ever made.

My co-worker at STAR Academics and I were discussing the following parent-teacher conference film in light of education in general. Having home schooled for so long and having been actively involved with the teaching of other home schooled students, I have found that most home schooling families have counted the cost of sending their children to the local assembly line of education and have made the choice to swim against the status quo. Those who come from the public schools, are usually shocked by the vigorous program we offer two days a week at STAR Academics, and the time and dedication that is demanded of the parents themselves. There is also the surprise that the “A” easily gained at the public school may not be as easily achieved in our home schooling program. The kinds of conversations that many times take place are, “How come Jimmy is not excelling like he was at his old high school? Why is he only getting a “B-“, when he used to get all “A”s in his A.P. classes?” To this type of question, my site administrator explains that, colleges will ultimately look at the scores of SAT or ACT tests as these compare apples to apples, and that different grading standards of the various schools in the valley, be it private, public or home schooling will be measured in that standardized test.

She gave the example of a school that takes remedial students, just trying to prepare them for the California High School Exit Exam, who end up getting “A”s as seniors while passing an eighth grade level math course. Their GPA may look good, but the comparison of strenuous academic criteria and standards found at the neighboring Christian school makes the “A” student from the remdial school not even compare to a “B” student at the private school. Therefore a standardized test for universities to weigh the student’s academic aptitude is necessary.

The goal of most home schooling families I have been privileged to work with goes deeper than just academics and involves the educating and nurturing of the whole child: body, soul and spirit. Because the parent is the teacher, he or she recognizes the areas of strength and weakness in the individual student and can make adjustments to meet those needs. Remaining diligent to the call, finding outside help when needed and realizing that the goal should be to instill a love of learning, will help when the daily grind gets rough.

Whether one chooses Private, Charter, Public or Home Schooling for their children, ultimately the training of the child rests solely on the parents and their involvement in the process. One can not enter a parent teacher conference and place all the blame on the teacher, as the closest teacher a child will ever have is the parent. Too many times, the following video, is the scene in a parent teacher conference. Watch and learn how not to be like this mother portrayed in this telling scenario.


The State of the Union

Listening to the State of the Union while driving home, without the benefit of seeing the President give his speech, allowed me to hear his words and digest them without television bias. The thing that I came away with is that nothing he said had a kernel of truth in it, as it is redundant with past promises that have not been kept.

President Obama reminds me of the boy who called wolf and America is onto him,  his words mean nothing.  He spoke of reaching out to the Republicans in various areas of policy and legislation, and yet, where was this in the past two years? Where was it when the Republicans had ideas to offer in the health care debate? They were willing to play, but the Democrats forced them to sit on the sideline. Why now is he willing to work with the Republicans?

America has called Obama’s bluff, and like a bully who has been caught in the school yard and reprimanded, he is now trying to win the trust of the people by tickling their ears with niceties. Our President is a good speech maker and he promises pie in the sky; but the American people are hungry, for he has not delivered on anything that he has said that he will do.

This year is a crucial time in America history to radically do what must be done.  Like a cancer, and this debt and deficit are just that; must be cut out, radiated, and chemo-ed. These treatments hurt, but they save lives.  America’s life needs to be surgically saved and tough cuts must be made.

Are we the people willing to go through the treatment that will revive the health of this country?  Let us hold our representatives to their word and get the job done this time!


National School Choice Week: What’s My Role?

A full house, at the Nixon Library,  greeted nationally syndicated talk show host Hugh Hewitt and Dick Morris, author and political commentator, jointly hosting an evening dedicated to School Choice Week.  The Education Revolution Tour:  Restoring America’s Pride is touring America to offer a bright hope for the future of America’s kids.

We should be leading the world in education, yet our 15-year-olds rank 35th out of 57 countries in literacy and math; we are behind most industrial nations!

According to the Third International Mathematics and Science Study (TIMSS) involving a half-million students in 41 countries,  U.S. fourth-graders are performing poorly, middle school students worse, and high school students are unable to compete. By the same criteria used to say we were “average” in elementary school, “we appear to be “near the bottom” at the high school level.”

What is school choice?  Dick Morris answered saying that a “revolution is happening this year in the United States.”  He shared that only 15% of American kids attend Private or Parochial schools and “the rest go to the only remnant of socialism in the United States = Public School.  This is the only area in a parent’s life that they don’t have a choice.”

In 1990, per student spending was $7,300  and today, $10,000: resulting in 0% improvement in reading and 4/10% in math.  More money has not improved our students, but it has paid for more bureaucracy and teacher’ unions who push for teacher tenure and seniority pay.

“We have to let the kids, who are trapped (in bad schools), find a way to excellency,” said Hewitt. “School choice isn’t just a tool, it is a higher calling.  Academic performance of students to other kids internationally is down because we gave up on doing difficult things. There is too little return for the hard work.”

“One size doesn’t fit all.  Kids are unique and should have the option to find a school that fits their needs.  If we empower the parents, we will reform education,” stated Morris.

So what is the answer? School Choice.

“Our message is simple: we need a K-12 education system that provides a wide array of options. We need an effective education system that has the flexibility to personalize and motivate students and allow parents to choose the school that is best for their child.”  National School Choice Week

Not all schools are in bad shape and do in fact produce quality students exceptionally educated, but this is the exception. Most are following in the footsteps of Detroit, “where a report from the Detroit News Monday suggested that without government aid, the city of Detroit will be forced to close down nearly half of the city’s public schools in the next two years. Additionally, the paper warns that average high school class sizes will swell to 62 students by the following year.”

Detroit is an example of what ultimately happens when teacher pensions and union contracts continue to grow as the economy slumps.  The students and the community suffer when learning comes to a stand still at the hand of unions and bureaucrats.

This is a-political, it is about American children everywhere, who need an exceptional education and deserve to have the best schooling  provided in the greatest nation on earth.  We can do this and we must demand that it gets done. Choice is the answer through vouchers, tax credits and scholarships; as well as providing creative educational experiences utilizing virtual learning, specialized schools with paths to various vocations and careers and outcome based standards so the tax dollars won’t be wasted.  Charter schools, home schools, private and public should all play a unique part in the educational landscape of America.

Get involved.  Become active as School Choice advocate.  Attend an event and hear the exciting ways  schools will see the light at the end of this dark age, in 2011.

“The modern issue of school integration is school choice,” Morris said.  It is THAT important.


Leadership Material: Sarah Palin

An animated conversation ensued around the lunch table, as Sarah Palin, her leadership and potential as a Presidential candidate was heatedly discussed.  The women, all home schooling moms and conservative Christians from various backgrounds, passionately voiced opinions that ranged from a high level of respect for Governor Palin, to a concern for her family, if she runs for President.

One mom held the conviction that women should not be in positions of leadership over men.  I respect her opinions, though I do not agree with them.  I decided to do some Biblical digging to see what women in the Bible were leaders and what qualities they possessed.  The woman that immediately came to mind was Deborah, the Judge of Israel around 1200 B.C. found in the book of Judges chapters 4 and 5.  One commentary stated the following:

Deborah was unique among the women and men of  Bible history in that she was a prophetess, a judge and a military leader all in one – a powerful triple combination of authority and responsibility held by only two other Israelites, Moses and Samuel.
She was referred to as the “mother of Israel” because of her leadership in the battle against Canaanite oppression.

Biblically, women have been raised up “for such a time as these“, and have been mighty leaders, used to serve God in various capacities. Deborah is an inspirational woman who not only led in a judicial and legislative role, but also led in a victorious military role as well.  The Bible says that under her leadership Israel enjoyed peace for forty years.

Many women throughout history have demonstrated an exceptional ability to lead.  Sarah Palin is such a woman, and perhaps this is what has caused intense fear in those who oppose her point of view.  She is, in fact, a threat, because she stands against everything women on the left have put forward as leaders.  Her point of view reflects that of millions of American women; where as the feminist voice that has had the bully pulpit for so long, has finally been muffled by one that rings truer to most.

Is Sarah Palin the next President?  Maybe.  Is Sarah Palin a leader that speaks of a reality that millions of Americans live and adhere to everyday?  Absolutely!  Perhaps she has also been raised up for such a time as these.


Whistling and Cheering at a Memorial Service?

I have attended many memorial services. Some have been healing, some have left me with nostalgic tears flowing because of wonderful memories, and most have been a celebration the life of the deceased; but I have never been to a service where those in attendance cheer, whistle and shout during the eulogy. What was experienced during the Tuscon Memorial Service was extremely irreverent.

I kept wondering what the families were thinking as their loved one’s honor was being over shadowed by the cheers for President Obama. I don’t believe he thought it was appropriate to outshine those he came to honor. I almost think he should have told the crowd to be respectful, like a father would to a disruptive child in the same situation. I wonder greatly what this says about society and this generation?

The words shared by the President were poignant as he reflected on the lives of those who had died; and I am sure it was an honor to have the President part of this momentous event for the victim’s families; but I just can’t help being saddened by the raucous crowd who attended for reasons that elude me. Was there a true desire to uplift these families in their time of distress, or was it a once in a lifetime chance to be at an event where the President was? The behavior was juvenile at best. Decorum and respect for the dead was lacking in the whistling and cheering crowds. I kept wondering who raised these individuals and where were their manners.

Yet, in spite of the rudeness factor, beautiful thoughts were shared and honor was bestowed on the six victims. I pray that each family and friend can begin their journey to healing tonight.