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The Wall Street Journal <http://s.wsj.net/img/wsj_print.gif> BEST OF THE WEB TODAY FEBRUARY 1, 2011 Never Say Sever Why Judge Vinson struck down ObamaCare's whole kaboodle. * By JAMES TARANTO Roger Vinson wasn't the first federal judge to rule that ObamaCare's "individual mandate" was unconstitutional, and there's a good chance he won't be the last. If the Supreme Court were to uphold ObamaCare, it would mark a radical expansion of congressional power. The court would have to find that Congress's authority "to regulate Commerce . . . among the several States" is so vast as to permit the enactment of laws forcing individuals to transact business with private companies. [botwt020111] <http://si.wsj.net/public/resources/images/OB-MF864_botwt0_C_20110201135925.jpg> Associated Press Where this is headed The court has expanded congressional power before, of course, most notably in upholding various New Deal programs. It has also expanded individual rights in constitutionally dubious ways. But in almost all such cases, it was, or at least seemed to be, going with the political grain. Even <http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?court=us&vol=410&invol=113> Roe v. Wade, the most controversial decision of the 20th century, was consistent with the then-extant trend toward liberalization of state abortion laws. By contrast, in upholding ObamaCare, the Supreme Court would be validating an unprecedented congressional power grab while upholding a law so at odds with the popular will that, to borrow the words of The New Republic's <http://www.tnr.com/blog/jonathan-cohn/82545/vinson-ruling-affordable-care-act-mandate> Jonathan Cohn, "there was something fundamentally illegitimate about the process that produced it." The foregoing is not a prediction as to how the high court will rule. Think of it instead as an explanation, offered in advance, for the justices' actions if they do the right thing. Where Vinson did break new ground in his ruling yesterday in <http://dl.dropbox.com/u/3174287/Opinion%20-%202.pdf> Florida v. HHS was in holding that the entire kaboodle, every word of ObamaCare's thousands of pages, cannot withstand constitutional scrutiny because the individual mandate is unconstitutional. This has to do with a somewhat technical legal question known as severability. Vinson's ruling discusses it at length, but here's a brief primer. The version of ObamaCare that became law did not include a "severability clause"--language directing that if one part of the law is struck down in court, the rest of it remains law. The absence of such a clause does not necessarily mean that the entire law is void if a part of it is; it is up to judges to work that out. <http://m.wsj.net/video/20110201/020111opinionjournal/020111opinionjournal_512x288.jpg> Rep. Marsha Blackburn on the health-care ruling. Assuming a judge finds the individual mandate unconstitutional, there are three approaches he could take: First, he could strike down the entire law, as Vinson did. Second, he could treat the unconstitutional provision as severable, as Judge Henry Hudson did last month in the Virginia case, striking down the mandate, allowing the rest of the law to stand, and leaving it to the political branches of government to sort out the implications. The trouble with the Hudson approach, Vinson argues, is that "the defendants"--that is, the federal government, as represented by the Obama administration--"have conceded that the Act's health insurance reforms cannot survive without the individual mandate, which is extremely significant because the various insurance provisions, in turn, are the very heart of the Act itself." The third approach would be a sort of middle ground: striking down the individual mandate and the provisions of the law that depend on it--such as the requirement that insurance companies sell policies to individuals with "pre-existing conditions"--while leaving intact those portions of the law that can stand on their own. Perhaps the most powerful passage in Vinson's ruling is his explanation of why he regards the third approach as unworkable: In the final analysis, this Act has been analogized to a finely crafted watch, and that seems to fit. It has approximately 450 separate pieces, but one essential piece (the individual mandate) is defective and must be removed. It cannot function as originally designed. There are simply too many moving parts in the Act and too many provisions dependent (directly and indirectly) on the individual mandate and other health insurance provisions--which, as noted, were the chief engines that drove the entire legislative effort--for me to try and dissect out the proper from the improper, and the able-to-stand-alone from the unable-to-stand-alone. Such a quasi-legislative undertaking would be particularly inappropriate in light of the fact that any statute that might conceivably be left over after this analysis is complete would plainly not serve Congress' main purpose and primary objective in passing the Act. The statute is, after all, called "The Patient Protection and Affordable Care Act," not "The Abstinence Education and Bone Marrow Density Testing Act." The Act, like a defectively designed watch, needs to be redesigned and reconstructed by the watchmaker. Congressional Democrats insisted that their "reform" was "comprehensive," and Judge Vinson's ruling respects both that intention and the Constitution's limits on congressional power. ObamaCare defenders will call him a judicial activist. That is bunk. His ruling is the very model of judicial restraint. <http://missoulian.com/news/local/article_3db24de6-2dcc-11e0-8037-001cc4c002e0.html> 'Oh Man, We Made a Mistake' The Missoulian, daily newspaper of Montana's second city, weighs in this morning with a story on the Missoula Community Theater story, which we brought to national attention in our <http://bit.ly/eyyl3T> Friday column. The paper very kindly acknowledges our role in the story, noting that "political bloggers around the country quickly followed Taranto's lead," though reporter Joe Nickell makes an error at our expense: "Taranto argued that the Palin reference was an example--though he did not name others--of widespread hate speech in the arts world." In fact, we did name others. The Missoulian has some background on the operetta and the creative process that led to the inclusion of the offending lyrics: The onslaught left [director] Curt Olds deeply shaken on Monday. The Butte native and University of Montana graduate said he never anticipated that the Palin reference would spark anything more than laughter. "It's pretty much required that you update those lyrics, and so that's what we did--as I've done every time I've done this show in the past," said Olds, who has performed the role of Ko-Ko in more than a dozen professional productions around the country. "It's part of doing 'The Mikado,' that you make those references relevant to modern times." Also included in Olds' amended list of targets for execution, as sung in the Missoula production: people who drink expensive frappuccinos from Starbucks; Missoula drivers who don't understand how to navigate roundabouts; members of the audience; and the oboist in the orchestra. Palin was the only modern person mentioned by name in the song. . . . "Sarah Palin was in there because she goes beyond politics; she's one of the most well-known human beings in this country," said Olds. "I have no ill feelings about her at all; I included her because she's a well-known celebrity, and that's in keeping with the spirit of the song. . . . I've never heard a word of complaint or any type of letter coming out of including her in the song (in the past)." The paper also quotes Michael McGill, executive director of the theater's parent corporation; "In retrospect, we made a mistake," he said. "Anybody that gets singled out in such a way as that, whether it might be (President Barack) Obama or Palin or whomever [sic], it's inappropriate. I take full responsibility for that." McGill's quotation points to the double standard that is the real problem here: Can anyone imagine that Curt Olds, or just about any other theater director, would find it funny or appropriate to include a reference to the beheading of President Obama? <http://bit.ly/gUgeqF> Leland Yee: Cry-Baby or Real Victim? Several readers took exception to our endorsement of a crank-caller's description of Leland Yee, a California state senator, as a cry-baby. The call was described in an <http://apnews.myway.com/article/20110128/D9L1B1SO0.html> Associated Press story which also reported, with no further details, that "Yee said he received racist death threats." Now we have some further details. Don't ask why, but we tuned into MSNBC's "The Mr. Ed Show" last night, and horse Ed Schultz played a recording of what he described as a "threat" that had been left on the voice mail of one of Yee's offices. Here is the transcript that appeared on the screen (redactions are MSNBC's): I saw on the news that you want people to boycott Rush Limbaugh because he made a joke or something about a Chinaman or something. That president or whatever that deal's name is from China, you know that Chinese president that was here, can go f--- himself, he should go burn in hell, I hope he has a heart attack, that g------ Chinaman. "Chinaman" is a slur, so we will allow that this message is racist. But it is not a threat. There is a difference between saying "I am going to kill you" and "I hope you die." More important, the caller's insults and ill wishes are directed not at Yee but at Hu Jintao, the ruler of communist China. Yee construes this message as a threat against him? It's as if a man told a woman, "I hope Kate Middleton gets married," and the woman replied, "Yes, I'll marry you." And Homer nods: Contrary to our item yesterday (since corrected), Yee was not born in America. According to his <http://dist08.casen.govoffice.com/vertical/Sites/%7bBF15804D-042F-4DCF-8803-86441E95CD9F%7d/uploads/%7bC78BEE43-BC8E-47FE-BDA2-CA40756AC86D%7d.PDF> state legislative bio, he is a native of China and immigrated to the U.S. at age 3. <http://on.wsj.com/hrCtjY> Treksters Dissent Several readers took issue with our reference to M5 in a headline yesterday and argued that we should have referred to Nomad instead. Both are out-of-control computers in original "Star Trek" episodes: M5 is from " <http://memory-alpha.org/wiki/The_Ultimate_Computer_(episode)> The Ultimate Computer" and Nomad from " <http://memory-alpha.org/wiki/The_Changeling_(episode)> The Changeling." It sounds as though our readers are right that Nomad fits the bill better. The out-of-control computer was a recurring theme in the original "Star Trek," which is amusing, since computers don't actually behave this way, though rigid-minded people sometimes do. Anyway, we guess we're just not enough of a Trekster to get this stuff right always. Out on a Limb * "Omar Sharif Says Egypt's Future Is a Concern"--headline, <http://news.yahoo.com/s/ap/20110131/ap_en_ot/egypt_sharif> Associated Press, Jan. 31 * "Local Egyptians Say Their Native Country's Future Is Uncertain"--headline, <http://www.wkyc.com/news/local/news_article.aspx?storyid=172785&catid=3> WKYC-TV website (Cleveland), Jan. 31 * "U.S. Aid to Egypt Depends on Events"--headline, <http://www.voanews.com/english/news/US-Aid-to-Egypt-Depends-on-Events--114983219.html> Voice of America website, Jan. 31 <http://www.tradingmarkets.com/news/press-release/zzbpr_new-chairlift-completes-ski-bowl-gore-connection-1457607.html> We Blame Global Warming "New Chairlift Completes Ski Bowl, Gore Connection"--headline, McClatchy-Tribune Information Services, Jan. 30 <http://voices.washingtonpost.com/right-turn/2011/01/left_unreasoned_and_unprepared.html> The Latest Installment in the 'Left Behind' Series "Left Unprepared for ObamaCare Ruling"--headline, Washington Post website, Jan. 31 <http://www.foxnews.com/us/2011/02/01/michigan-school-district-allows-sikh-students-wear-religious-dagger-school/> Somebody Alert Chuck Schumer "Michigan School District Allows Sikh Students to Wear Religious Dagger to School"--headline, FoxNews.com, Feb. 1 <http://pryordailytimes.com/sports/x135632953/Pirates-can-t-get-overtime-benefit> They're Appealing to the NL Argh B "Pirates Can't Get Overtime Benefit"--headline, Pryor (Okla.) Daily Times, Jan. 31 Questions Nobody Is Asking * "Jon Huntsman Quits Ambassador Post; Is He Mulling Presidential Run?"--headline, <http://www.politicsdaily.com/2011/01/31/jon-huntsman-quits-ambassador-post-is-he-mulling-presidential/> PoliticsDaily.com, Jan. 31 * "Egypt Protests: Did Jimmy Carter Just Throw Obama Under the Bus?"--headline, <http://www.csmonitor.com/USA/Foreign-Policy/2011/0131/Egypt-protests-Did-Jimmy-Carter-just-throw-Obama-under-the-bus> Christian Science Monitor, Jan. 31 * "Corvino: Are Those Gay Doritos Ads Funny?"--headline, <http://www.365gay.com/news/corvino-are-those-gay-doritos-ads-funny/> 365gay.com, Jan. 28 <http://www.nypost.com/p/news/international/chef_ramsay_jumps_shark_8PPlGrFWsbInbhFm4M8P6M> Shark Jumps Chef--Now That Would Be News "Chef Ramsay Jumps Shark"--headline, New York Post, Jan. 31 <http://www.washingtontimes.com/news/2011/feb/1/egyptians-hate-us/> We Hate the Egyptians--Now That Would Be an Editorial "EDITORIAL: The Egyptians Hate Us"--headline, Washington Times, Feb. 1 Everything Seemingly Is Spinning Out of Control * "Organic Panic: Obama Administration Green Lights Mutant Alfalfa"--headline, <http://abcnews.go.com/Politics/organic-farmers-alarmed-obama-deregulation-mutant-alfalfa/story?id=12786580> ABCNews.com, Jan. 31 * "The Patent Process Run Amok"--headline, <http://www.hoover.org/publications/defining-ideas/article/64956> Defining Ideas, Feb. 1 News of the Tautological * "Autopsy: Man Pulled From Tempe Lake Likely Drowned"--headline, <http://www.azfamily.com/news/local/Autopsy-reveals-man-pulled-from-Tempe-Town-Lake-likely-drowned-114967784.html> KTVK-TV website (Phoenix), Jan. 31 * "Beer Goggles Really DO Make the Opposite Sex More Attractive"--headline, <http://www.dailymail.co.uk/sciencetech/article-1351685/Beer-goggles-really-DO-make-opposite-sex-attractive.html> Daily Mail (London), Jan. 31 * "Illegal Immigrants: Here to Stay"--headline, <http://voices.washingtonpost.com/postpartisan/2011/02/illegal_immigrants_here_to_sta.html> Washington Post website, Feb. 1 <http://www.powerlineblog.com/archives/2011/01/028254.php> News You Can Use "How Not to Think About Egypt"--headline, PowerLineBlog.com, Jan. 31 Bottom Stories of the Day * "Romney Still Undecided on Presidential 2012 Race"--headline, <http://news.yahoo.com/s/ap/20110201/ap_on_el_ge/us_romney2012> Associated Press, Feb. 1 * "Microsoft Warning Over Browser Security Flaw"--headline, <http://www.bbc.co.uk/news/technology-12325139> BBC website, Jan. 31 * "Rep. Wasserman Schultz to Write a Book"--headline, <http://washingtonscene.thehill.com/in-the-know/36-news/8071-rep-wasserman-schultz-scores-a-book-deal> TheHill.com, Jan. 31 <http://townhall.com/columnists/DennisPrager/2011/02/01/put_left-wing_speech_control_in_the_cross_hairs/page/full/> First Amendment Remedies Columnist Dennis Prager issues a stirring call to arms against logophobic left-liberals: If you love liberty, you must target the left and put its totalitarian tendencies in your cross hairs. We must shoot down political correctness and wage a crusade for truth and liberty. All those ladies and gentlemen who cherish personal and societal freedom must fight like great Indian chiefs, braving secondhand smoke if need be, in affirming a masculinity that has been under relentless attack. And yes, we must even endure the taunts of our foes and, at the appropriate time of the year, wish fellow Americans a "Merry Christmas." Then, and only then, will we be able to vanquish lies, defeat the foes of liberty, and once again be able to proudly sing a national anthem that affirms that "the bombs bursting in air gave proof through the night that our flag was still there." Let us wage this battle with determination and resolve, so that we may prevail in the war without having to resort to Second Amendment remedies. [Non-text portions of this message have been removed] ------------------------------------ -------------------------- Want to discuss this topic? Head on over to our discussion list, [email protected]. -------------------------- Brooks Isoldi, editor [email protected] http://www.intellnet.org Post message: [email protected] Subscribe: [email protected] Unsubscribe: [email protected] *** FAIR USE NOTICE. This message contains copyrighted material whose use has not been specifically authorized by the copyright owner. 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