News that doesn't receive the necessary attention.

Sunday, February 14, 2016

Karl Denninger: Trump was right that Ted Cruz pushed hard for John Roberts' Supreme Court confirmation in 2005. Cruz wrote op-ed in National Review strongly supporting Roberts' confirmation. GOP debate moderators didn't question Cruz about the death of his alleged claim of prescience in the matter of Supreme Court nominees, perhaps distracted by the frat house audience and 'enhanced' sound effects from the control room

"Nor has Cruz said one word about how Obamacare was upheld and that it is black-letter unconstitutional irrespective of anyone else's claims otherwise."... 
2/14/16, "Are You Done Yet, Republicans?" Karl Denninger, Market Ticker 

"There is much digital ink being spewed this morning about Trump being "out of control" at the debate last night.

Well, guess what--there's a point where righteous anger reaches its boiling point, and perhaps Trump got there last evening. It wasn't just stacked audiences and "enhanced" audio sound effects. It was also the other candidates, including Cruz in particular, who flat-out lied about his position when it came to Chief Justice Roberts.

He (Cruz) said he'd "never nominate him", but in point of fact he wrote an op-ed strongly supporting and praising him for a magazine of national circulation, National Review, when Roberts was up for confirmation!

I'll just quote the punchline:
"But, as a jurist, Judge Roberts’s approach will be that of his entire career: carefully, faithfully applying the Constitution and legal precedent.
He is a mainstream judge, respected across the ideological spectrum. Thus, he’s earned praise from liberal icons such as Harvard Law Professor Larry Tribe, and Chicago Law Professor Cass Sunstein, as well as from Clinton Solicitors General Walter Dellinger and Seth Waxman, and Carter and Clinton Counsel Lloyd Cutler, the latter two of whom both described Roberts as a man of “unquestioned integrity and fair-mindedness.”
As Professor Tribe observed Tuesday night, “It is clear that in the absence of some serious objection that is not now visible . . . he is very likely to be confirmed.”
The Senate should confirm him swiftly."
"Ted Cruz is the solicitor general of Texas."
Of course said "careful, faithful application of the Constitution and legal precedent" then led Justice Roberts to rewrite Obamacare from the bench not once but twice, and further, he re-wrote it the first time into a blatantly-unconstitutional direct tax as it was the only way for him to reach the decision he desired.

Bluntly, "Justice" Roberts not only ignored his oath of office he ignored the very existence of The Constitution in penning that decision.  His decision is factually void irrespective of any further lawsuit because, as the Supreme Court itself ruled (and has never been overturned):
While acts of a de facto incumbent of an office lawfully created by law and existing are often held to be binding from reasons of public policy, the acts of a person assuming to fill and perform the duties of an office which does not exist de jure can have no validity whatever in law.
An unconstitutional act is not a law; it confers no rights; it imposes no duties; it affords no protection; it creates no office; it is in legal contemplation as inoperative as though it had never been passed.
Roberts' original Obamacare decision said, in part:
3. CHIEF JUSTICE ROBERTS concluded in Part III–B that the individual mandate must be construed as imposing a tax on those who do not have health insurance
if such a construction is reasonable. The most straightforward reading of the individual mandate is that it commands individuals to purchase insurance. But, for the reasons explained, the Commerce Clause does not give Congress that power. It is therefore necessary to turn to the Government’s alternative argument: that the mandate may be upheld as within Congress’s power to “lay and collect Taxes.”
Note: The individual mandate must be construed as imposing a tax on those (that is, persons) who do not have health insurance. That is the definition of a direct tax.

But The Constitution says (Article 1 Section 2, emphasis mine):
Representatives and direct taxes shall be apportioned among the several States which may be included within this Union, according to their respective Numbers, which shall be determined by adding to the whole Number of free Persons, including those bound to Service for a Term of Years, and excluding Indians not taxed, three fifths of all other Persons.
In other words The United States Government is prohibited from laying a tax on persons except in direct proportion to their population among the states. That is, the government could impose a tax of $20 per person and that's constitutional. But the government cannot vary the amount of tax levied on a person from one person to another; it cannot advantage some and disadvantage others.

There is no such restriction on an excise, that is, a tax levied on an act. But as the court found inaction is not actionin fact it is the polar opposite and thus that attempt was unconstitutional, thus forcing the court to consider the "alternative argument."

But the Constitution leaves no wiggle room for this sort of malarkey; just to make damn sure nobody tried to twist the wording in Section 2 we find Article 1 Section 9 that further amplifies the statement above and leaves no wiggle room for any such "interpretation" (again, emphasis mine):
No Capitation, or other direct Tax shall be laid, unless in Proportion to the Census or enumeration herein before directed to be taken.
Amendment 16 (Income tax) was passed because several other attempts to lay a direct tax on persons of varying amounts (predicated on how much they made) were found unconstitutional. Therefore, post Amendment 16's passage Congress may lay a tax predicated on one's income, and has.

But Obamacare's "penalty", rewritten as a tax, is not levied on income, it is levied on people and their actions other than income and that is black-letter unconstitutional. 

It is thus, absent a further Constitutional Amendment, void irrespective of what Justice Roberts (or anyone else) says.
Trump had every reason to be off-the-charts*****ed at Cruz attempting to claim that which was blatantly false, especially in the wake of Justice Scalia passing away. That unfortunate event thew the Supreme Court into the center of the debate. Even I remember the OpEd that Cruz wrote back in 2005.

The real outrage is that the moderators didn't immediately stomp on Cruz's neck in this regard. It is one thing to say you changed your mind (ok, the people can judge whether you will again and whether the reason was valid) or even to "misremember." But you don't write an OpEd for a major national publication like National Review and forget about having done so.

Nor has Cruz said one word about how Obamacare was upheld and that it is black-letter unconstitutional irrespective of anyone else's claims otherwise.

Note that there are options available to the Executive. The Executive takes the same oath of office to the Constitution as does the rest of the Federal Government and it could refuse to enforce a black-letter unconstitutional act.

Such a decision is most-certainly not one to take lightly, as it has the potential to rip the nation apart. Nonetheless when one's oath of office is in direct conflict with the actions of a different branch of the government you eventually have to make a decision -- if you have the balls to do so."


Second citation: Trump was right: Ted Cruz while Texas Solicitor General strongly supported Roberts, called him “the best Supreme Court litigator in the nation:

2/13/16, "Trump’s Not Wrong: Cruz Loved The Justice The Right Hates,"

"Ted Cruz has claimed a special skill at judging would-be Supreme Court nominees—but his praise of Justice Roberts in 2005 might call his judgment into question as the debate on who will replace Justice Antonin Scalia begins."

And though Cruz argued tonight that only he will have the special prescience necessary to pick SCOTUS nominees that will keep conservatives happy, his history of loving Roberts belies that. Roberts, of course, was the deciding vote in a 2012 Supreme Court case that upheld the Affordable Care Act’s individual mandate—essentially ending the debate about the constitutionality of Obamacare.

In an internal email disseminated throughout his office in 2005 and since obtained by The Daily Beast, Cruz spoke glowingly of Roberts, encouraging his staff to keep a close eye on his Supreme Court confirmation hearings before the Senate. At the time, Cruz was Texas’s solicitor general.

“What made John so good at the podium was the way he could, eschewing rhetoric, calmly and coolly answer each and every difficult question that came his way,” Cruz emailed his staff during Roberts’s 2005 confirmation hearings. 

“His balanced, reasonable tone commanded enormous respect at the Court, and, over the years, he earned unparalleled credibility before the Justices.”

Cruz went on to call Roberts “one of the very best advocates ever,” who exemplified “how to try to carry out our craft with the highest level of skill and integrity.”
“I’ve worked with John and seen him argue numerous cases, and, to my mind, there’s not another appellate advocate who’s even close,” he said. 
Cruz made no secret of his admiration for Roberts. In July of 2005, he wrote an op-ed for National Review calling him “brilliant.” In that article, Cruz explained that he had been part of the team that assembled lawyers to litigate Bush v. Gore, the case that decided the 2000 presidential election. Cruz wrote that he called Roberts and asked him to help with the team, and Roberts immediately hopped on a plane to Florida.

“As an individual, John Roberts is undoubtedly a principled conservative, as is the president who appointed him,” Cruz wrote in that op-ed. 
Cruz has since said that he goofed a little on Roberts—and he’s been trying to compensate for it ever since. Since announcing his candidacy, Cruz has had very different things to say about Roberts than he did back in the day.

Last September, The Washington Post reported that Cruz suggested Bush erred by nominating Roberts.

“In 2005, in one room was John Roberts, and in another room was my former boss, Mike Luttig, a rock-ribbed conservative jurist on the Fourth Circuit Court of Appeals—and George W. Bush picked John Roberts,” Cruz said in a speech at a conference hosted by Phyllis Schlafly’s group.

And in the debate tonight, Trump hit him over the inconsistency—and hit him hard. The mogul initially directed his criticism at Jeb Bush, dinging him for his brother’s appointment of Roberts. But he mentioned Cruz in that breath, so Cruz jumped in.

“I did not nominate John Roberts,” he said. “I would not have nominated John Roberts.”
“You pushed him, you pushed him!” Trump retorted. 
“Donald, Donald—” Cruz replied.
“Why do you lie?” Trump shot back. 
“Donald, adults learn not to interrupt each other,” he said. 
“Yeah, yeah, I know, you’re an adult,” Trump said, voice dripping with contempt. “You’re an adult.” 
“I did not nominate him,” Cruz insisted again.
Of course, it’s completely correct that Cruz didn’t nominate Roberts; Cruz was not president of the United States in 2005 [as everyone knows]. But, as Cruz’s own email and op-ed make abundantly clear, he was a vocal and adoring booster of Roberts during his confirmation hearing process.  
After news of Scalia’s death broke, Cruz tweeted that the next president should nominate the next Supreme Court justice....

Senate Majority Leader Mitch McConnell has said the same thing. If that’s how this shakes out, and if Cruz just so happens to be the next president, the email we’ve reported here suggest he may not have the special SCOTUS prescience that he claims."



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I'm the daughter of an Eagle Scout (fan of the Brooklyn Dodgers and Mets) and a Beauty Queen.