Abuse of Power

The nice thing about being in power is that you always win. A court can write a decision how it wants. It can slant the facts to suit the outcome it wants. Consider this: A court posts on its website that you should contact the court clerk if you have any questions.  Good idea. After all, the court clerk is paid by taxpayer money and filing fees. So a lawyer contacts the court clerk as recommended and receives no response. The lawyer is in the dark.

Then the court can chew out the lawyer for not filing a motion and for contacting the court clerk. The court can say that the court clerk need not respond to the lawyer’s communication. Never mind that the court itself on its own website says to contact the court clerk. Never mind that filing fees and taxes pay the court clerk’s salary and benefits. The court is right; the lawyer is wrong. The court can slant the facts as it pleases. Power prevails.

Or say you want to lie, cheat and steal to push through a bill, say, a health care bill, because you want socialized medicine in a country. You and your associates make all sort of promises that you do not intend to keep. This gets you the votes you need from the legislature. The bill says that citizens who do not purchase a certain product will have to pay thousands of dollars. You tell everybody that this requirement is a “penalty” and not a tax. (You also tell everybody that the bill must pass so that the lowly taxpaying citizen can then read what is in it. How big of you.)

A high court upholds most of your bill, but calls the “penalty” a “tax.” Never mind that the court that gave you the victory called it a “tax.” You tell the major media that it is a “penalty,” so that you will never admit you have pushed through the highest tax in the nation’s history.

Silly citizens who expect fairness and integrity from government may say all that they want, but the power-wielders won’t change. If they got what they want, they stick to it.

Those with power, win. Too bad, little guy. Just be sure you keep paying your taxes.


6 Big Ideas to Replace ObamaCare Once It is Repealed


By: Cathy Taylor
6/29/2012 04:56 PM
House Republicans soon will vote to repeal the heath care law that the Supreme Court just upheld. The November election may bring a new president and a Senate majority that will carry out the mission to replace the Affordable Care Act, known as Obamacare. Democrats charge that those who oppose Obamacare have no ideas or alternative plans, but that is simply not true.

There is not only a different way to deliver health care, there is a better way to achieve better outcomes. Americans want less government in their health care decisions, not more. They seek the kinds of reforms that wrench the system away from government control and toward free markets, flexibility for states to address their particular concerns, choice for patients, competition among providers and toward structures that put decision making in the hands of those closest to the condition—doctors and patients. And, they want effective ways to control costs.

The Editors of Human Events did not have to look far to find free market health care concepts that are already in place and succeeding in various states and among private companies. Some initiatives are as modest as a private exchange in Utah serving a few thousand people, or as large as Medicaid reform in Florida. Thirty-five states have launched high risk pools, with varying degrees of accomplishment, but with plenty of track record to learn from.

The point is, Republicans have a lot to recommend, and they should pursue “repeal and embrace,” as one of our Special Focus: Health Care writers put it, in the Legislature. The Republican Study Committee last week released a 27-page document that lists more than 200 pieces of health care-related legislation introduced by members of the committee in the last 18 months.

For this Special Focus, we identified health care initiatives that are already succeeding and we asked people involved in those initiatives to write about them. Here’s what they had to say.

No. 1: A ‘defined contribution’ model is a key building block for free market plans
by Grace-Marie Turner
There are structural elements common to virtually all market-oriented health reform proposals to give consumers in both public and private plans more control and ownership over health care arrangements.

No. 2: How to save Medicare
Exclusive Q&A with House Budget Committee Chairman Rep. Paul Ryan of Wisconsin.

No. 3: Florida’s pro-taxpayer cure for Medicaid
by Tarren Bragdon
States seeking to improve patient health and save taxpayer dollars should look at Florida’s Medicaid Cure program.

No. 4: Exchange expanded coverage to small businesses in Utah
by Cheryl Smith
The Utah Health Exchange is not a regulatory entity, did not result in the establishment of a new state agency, and did not require any new mandates or taxes.

No. 5: ‘Account-based’ plans are bending the health care cost curve down
by Roy Ramthun
These insurance plans come with higher deductibles than most traditional plans and are paired with tax-preferred accounts, such as a health savings account or a health reimbursement account.

No. 6: High risk pools are workable alternative to costly pre-existing condition mandate
by Merrill Matthews
High risk pools, which charge a higher premium to those with pre-existing conditions, keep private health insurance pools large and more affordable.

John Eastman’s Commentary on the U.S. Supreme Court’s ObamaCare Ruling



Hard to know where to begin. As I said in my preliminary assessment
yesterday, the opinion by Chief Justice Roberts upholding the Affordable
Care Act (aka Obamacare) as a valid exercise of Congress’s taxing power
is a sell-out of constitutional principle of the first magnitude. (And
yes, for those that caught that typo in the original post, I do know the
difference between principal and principle–but it appears that the
Chief, in his role as “principal” of the judicial system, may have
forgotten his primary role is to uphold constitutional “principle”!).

It is also fundamentally wrong on constitutional law; the doctrine of
separation of powers; the meaning of a direct tax; and the idea of
limited government and enumerated powers.

It also appears that the Chief may have switched his vote after the
original conference and circulation of opinions. Rather than repeat all
the evidence for that claim that others have noted, I’ll just point you
to the more insightful of the commentaries on this point. Short version:
the joint dissenting opinion by Justices Scalia, Kennedy, Thomas and
Alito refers to Justice Ginsburg’s concurring opinion as a “dissent,” is
written as though it were the majority opinion, and says that if the
individual mandate were really a tax, they’d have to address the close
constitutional question of whether it was a direct tax–something they
don’t address even though, as the case was ultimately decided, the issue
was squarely presented.

See in particular Professor Paul Campos’ commentary [5] on this at
Salon, Ed Whelan’s commentary [6] over at National Review, and Lawrence
Solum’s commentary [7] at Legal Theory Blog.

If that is indeed what happened, and the Chief’s motive was to prevent
the Court from being “politicized” and therefore having its legitimacy
undermined (in the eyes of elite opinion, that is), he has done just the
opposite, both for the Court and his own here-to-for stellar reputation.
Indeed, if that is what happened, the Chief should resign; he would not
be fit to continue in office. As the great Chief Justice, John Marshall,
recognized more than two centuries ago in _Marbury v. Madison_, it is
“the very essence of judicial duty,” the reason a “judge swear[s an
oath] to discharge his duties agreeably to the constitution,” that the
judge must find “that a law repugnant to the constitution is void.” Then
again, in _McCulloch v. Maryland_, he added: “should Congress, under the
pretext of executing its powers, pass laws for the accomplishment of
objects not entrusted to the government, it would become the painful
duty of this tribunal . . . to say that such an act was not the law of
the land.”

We have a judiciary independent of the political process precisely so
that can withstand such political attacks and uphold the Constitution.
(And oddly, it should be even easier to do so when the political opinion
of the majority of the American people is so strongly opposed to the

But let us for the time being give the Chief the benefit of the doubt.
What, then, of his constitutional arguments.

The law is unconstitutional as an exercise of Congress’s power to
regulate commerce among the states, he tells us (and on this point he is
joined by Justices Scalia, Kennedy, Thomas and Alito), because Congress
cannot force people into commerce in order to gain authority to

These were the grounds on which Congress passed this bill, deliberately
choosing not to raise taxes as a way to fund the massive expansion in
health care entitlements. The Chief’s Commerce Clause holding should
therefore have been the end of the matter.

Instead, the Chief manipulated the law to treat it as a tax, and then
held that the taxing power is broad enough to uphold this law.

There are several problems with that. First, the President and leaders
in Congress argued vociferously that the individual mandate was not a
tax. Second, Congress did not impose a tax; It imposed a penalty for
failure to comply with a regulatory mandate. Third, if it is a tax, the
Anti-Injunction Act deprives the Court to even here the case. Fourth,
the so-called “tax” did not originate in the House of Representatives,
as Article I, Section 7 of the Constitution requires. It originated in
the Senate. (Yes, I know. Technically the Senate stripped down a House
bill that was languishing there, and then used that bill number as the
vehicle for the Obamacare legislation. To say that the bill therefore
“originated” in the House is a fraud). Fifth, the power to tax is to
provide for the “general welfare,” not effectuate massive transfers of
wealth from one group of citizens to another. And sixth, if it were a
“tax,” it would be a direct tax, but one that is not apportioned
according to population, as required by Article I, Section 9, clause 4
of the Constitution.

Why does this matter? Aren’t these all a bunch of constitutional
niceties that really don’t mean much? Actually, no, if the idea of
limited government envisioned by our nation’s founders is to continue to
have any force.

Even assuming Congress has the power to accomplish such broad and
otherwise unconstitutional regulatory purposes by way of the taxing
authority — a dubious proposition — the constitutional process for
raising taxes is critically important. In insures that our lawmakers are
accountable to the people for their actions (heck, the unaccountability
of the King and Parliament for imposing taxes on the colonists was the
principal reason we had a revolution!). The requirement that tax
measures originate in the House was designed because the House is most
directly accountability to the people. At the time of the founding,
members of the Senate were not even elected directly by the people; that
came about only after the 17th Amendment was adopted in 1913. Even
today, every single member of the House has to face the voters every two
years (rather than every six, as in the Senate), a pretty serious
political check on raising taxes.

And the prohibition on un-apportioned direct taxes was designed to
prevent the use of the taxing power to redistribute wealth. If Congress
can impose a direct tax on some while exempting others, there would be a
serious risk of majority tyranny — that is, the prospect that 51% of
the population could simply tax the other 49%. That can’t happen with a
direct tax that can only be imposed if apportioned based on population.
(Note: This is also the problem with a steeply progressive income tax,
which allows for the same kind of majority tyranny mischief, but that’s
a discussion for another day). But a direct tax with exemptions? Look

How does Chief Justice Roberts address this problem? Well, he ducks it.
In a great bit of circular reasoning, he contends that the tax is not a
direct tax because it doesn’t apply to everyone. But that says nothing
about whether it is a direct tax or not; it merely admits that if this
is a direct tax, it is unconstitutional. So why is it a direct tax, in
my view? Well, for starters, because it is not any of the other kinds of
taxes authorized by the Constitution. It is not an excise (such as a tax
on liquor or cigarettes); it is not an impost or duty (such as tariffs
on imported goods); it is not an income tax, because it is not triggered
by your income (although the size of the penalty can be effected by the
amount of your income). It is a tax imposed for _not _doing something.
That is the very definition of a direct tax. A good analysis of this
point was published by my friend, Rob Natelson [8], over at Independence
Institute. His analysis is spot on. Maybe if the Chief had had the
benefit of briefing on this subject, he might not have made such a
sophomoric error. But methinks he knew exactly how disingenuous this
argument was, and he made it anyway.

What of the second part of the opinion, holding (by a vote of 7-2) that
the threatened loss of a State’s entire Medicaid funding if it declined
to accept the massive expansion in Medicaid mandated by the Obamacare
law was unconstitutional. Many conservative commentators over the past
24 hours, desperate to find a silver lining somewhere in the decision,
have focused on this. True, this is the first time that the Court has
ever held a federal spending grant to states to be so large as to be
unconstitutionally coercive. The Chief called this, quite correctly, “a
gun to the head” of the States, “economic dragooning that leaves the
States with no real option but to acquiesce in the Medicaid expansion.”
But that aspect of the Chief’s holding is immediately rendered largely
meaningless. If a State refuses to expand its Medicaid program, as
Congress desired, it cannot lose existing Medicaid funding. But its
citizens will still be taxed to pay for the Medicaid expansion
everywhere else. Few, if any, of the States will be able to reject entry
into the new program as a result. The choice will be: Pay for it, and
get some money back in return to cover some of the costs of expansion;
or Pay for it, and send all your money to other states to pay for the
costs of their expansion. That’s every bit as much a “gun to the head”
(albeit a six-shooter rather than a bazooka), yet the Chief does not
even discuss that coercive aspect of the Medicaid expansion, much less
find it to be unconstitutional.

Justices Scalia, Kennedy, Thomas, and Alito authored a joint dissent.
That itself is rare; normally dissents are authored by a single justice
and then joined by others. As noted above, the dissent reads as though
it was written as the majority opinion. We will learn whether that is
true or not in the fullness of time, but likely not until one of the
current justices retires, passes on, leaves their papers to a library
archives, and then we get to the day those papers are unsealed and made
available for public inspection. Then, we will see the initial votes of
the justices that were cast on the last Friday in March, two days after
the conclusion of oral argument in this case.

The dissent is a powerful defense of our Constitution’s system of
checks and balances, of federalism, and of the notion that our federal
government is one of limited, enumerated powers, not one with unlimited
power to compel action by its citizens as it sees fit. My one point of
disagreement is that the joint dissent concedes too quickly that
Obamacare would be valid if Congress had actually chosen to enact it as
a tax. In my view, the Tax and Spend power also has limits. The
signature accomplishment of the Rehnquist Court was to restore the
foundational idea that the Commerce power had limits, but it has been
clear for some that that accomplishment is meaningless if Congress can
simply shift to the Tax and Spend power to accomplish the same
unconstitutional ends.

This, then, is the greatest disappointment of yesterday’s ruling. When
given the opportunity to restore limits on the Tax and Spend Power,
comparable to the limits his predecessor was able to restore on the
Commerce Power, Chief Justice John Roberts appears to have blinked in
the face of political pressure. He apparently found the exercise of the
“painful duty” to tell Congress it had exceeded its authority too
painful to actually exercise. Chief Justice Rehnquist had the
constitutional fortitude to do his duty. A Chief Justice Mike Luttig
would undoubtedly have exercised that same constitutional fortitude had
he been appointed to the position instead. Those who pushed hard for his
nomination, greatly concerned that John Roberts had not been tested in
the fire of a landmark decision, have been vindicated. Small
consolation, though, given the damage that has been done to the
constitutional principle of limited government.

Is there a silver lining? Yes. But it is not simply that this issue now
becomes a rallying cry for those who would seek, following the next
election, to repeal Obamacare. No; it must be more than that. It must be
a repudiation so strong that the Court’s decision itself is repudiated.
In 1798, Congress passed the Alien & Sedition Acts, making it a crime to
criticize the government. There was a huge outcry against the Acts, but
the lower courts upheld them as constitutional. Thomas Jefferson waged
his campaign for President in the Election of 1800 largely on
repudiating those Acts. He was successful, but the Acts were not just
repealed (or more accurately, left to expire). They were repudiated.
Jefferson pardoned every one of the conscientious objectors who had been
convicted under the Acts, and the judgment of history has been that the
Court decisions holding the Acts constitutional were profoundly wrong.
That is the exercise of true power by a truly sovereign people. That is
the metal of which free men and women must be made if they are to remain
free. That is now our charge, and our moment to take our place in the
pantheon of American patriots, defenders of freedom, is now. Will we
prove ourselves worthy of the task?

John C. Eastman

P.S. Donations to help support our litigation efforts are always
welcome. Donations to Claremont Institute, the non-profit organization
which sponsors our constitutional litigation center, are tax deductible.
John Eastman’s Commentary | 3553 Atlantic Ave. | # 362 | Long Beach |
CA | 90807

Elements of Claims and Defenses in Nevada

My ready-reference book, Elements of Claims and Defenses in Nevada, is available on amazon for kindle and even has a paperback edition. It should help the Nevada lawyer, and even if no Nevada lawyers buy it, I’ll have it for myself to give me an advantage. It does expedite matters when I draft a pleading to have the elements of each claim readily available.

I do of course want Nevada lawyers, and even other legal professionals, to buy the book. I believe it meets a need for many lawyers.


Iran threatens Israel

Iran threatens Israel; new EU sanctions take force


Iran vows to confront “malicious” embargo

By Yeganeh Torbati
DUBAI | Sun Jul 1, 2012 2:58pm EDT
(Reuters) – Iran announced missile tests on Sunday and threatened to wipe Israel “off the face of the earth” if the Jewish state attacked it, brandishing some of its starkest threats on the day Europe began enforcing an oil embargo and harsh new sanctions.
The European sanctions – including a ban on imports of Iranian oil by EU states and measures that make it difficult for other countries to trade with Iran – were enacted earlier this year but mainly came into effect on July 1.

They are designed to break Iran’s economy and force it to curb nuclear work that Western countries say is aimed at producing an atomic weapon. Reporting by Reuters has shown in recent months that the sanctions have already had a significant effect on Iran’s economy.

Israel says it could attack Iran if diplomacy fails to force Tehran to abandon its nuclear aims. The United States also says military force is on the table as a last resort, but U.S. officials have repeatedly encouraged the Israelis to be patient while new sanctions take effect.

Why Obamacare Must Fall

Thomas Jefferson — “Rebellion to Tyranny is Obedience to God.”
An Unjust Law is No Law at All: Why Obamacare Must Fall
– Kelly OConnell Sunday, July 1, 2012

When Obamacare was recently affirmed, many Americans assumed bad law was established as constitutional—that wrong had trumped right. In fact, as heirs to the constitutional history of Europe connecting back to the earliest Greek and Roman thinkers and biblical writers, there is no compelling reason to accept an evil law. It is the Western concept that claims a set of precepts exists above all human law which is used to model and judge our own temporary laws. In fact, one can argue persuasively that without the notion of good law above used to fight against evil laws, the West as we know it would have never evolved.
Specifically, the Western Natural Law tradition is predicated upon the notion that Nature or God so ordered the universe that a set of rules exists beyond human laws which then are there available to inform humans of the manner of proper conduct and legislation. The greatest thinkers in Western history agree on this, including Cicero, Augustine, Aquinas, John Locke and many others. It is the duty of all free men and women to rise up and fight against unjust laws because all bad rules are an attack against liberty. Further, if we do not do this now, the opportunity to establish freedom may be lost for all future generations.

I. Western Legal Foundation: Natural Law

The legal story of the West has a rich history. Heinrich A. Rommen in The Natural Law: A Study in Legal and Social History and Philosophy, describes Natural Law by using the great Hugo Grotius’ definition:

The law of nature [ius naturale] is a dictate of right reason which points out that an act, according as it is or is not in conformity with rational [and social] nature, has in it a quality of moral baseness or moral necessity; and that, in consequence, such an act is either forbidden or enjoined by the author of nature, God.

The best research traces the ideas behind modern Natural Law and rights to William of Ockham, according to Brian Tierney in The Idea of Natural Rights. Modern rights language can be traced to a debate which occurred between Pope John XXII and the Franciscan Order. According to Tierney, the intrinsic implications for liberty within the Bible for Natural Law became externalized at some point. Ockham provided the language which helped form the tradition.

What Natural Law represents more than any other idea is the notion of a true set of precepts existing above any human laws which can be used to model and correct human law. And bad laws were not considered morally binding. Augustine in On Free Choice Of The Will, Book 1, § 5, says on this: “An unjust law is no law at all.”

II. Greek & Roman Natural Law Foundations: Stoics & Cicero

The notion there is a natural order and logic to good law is not unique to biblical theory but is also found in the thinking of early Greek philosophers like the Stoics who influenced later writers. Cicero was perhaps Rome’s greatest lawyer, a famed speaker and its greatest legal writer. Russell Kirk in Roots Of American Order describes the pagan Cicero’s Stoic-influenced theory of law:

Human laws are only copies of eternal laws. Those eternal laws are peculiar to man, for only man, on earth, is a rational being. The test of validity for the state’s laws is their conformity to reason. This reason, when firmly fixed and fully developed in the human mind, is Law. And so they believe that Law is intelligence, whose natural function it is to command right conduct and forbid wrongdoing. Thus, natural law forms the basis in creation for our intuitions of right and wrong, and is the context for our ability to reason.

Cicero himself discusses the universal existance of natural law across the world:

True law is right reason in agreement with Nature…it is of universal application, unchanging and everlasting… we need not look outside ourselves for an expounder or interpreter of it. And there will not be different laws at Rome and at Athens, or different laws now and in the future, but one eternal and unchangeable law will be valid for all nations and for all times, and there will be one master and one ruler, that is, God, over us all, for He is the author of this law, its promulgator, and its enforcing judge. Whoever is disobedient is fleeing from himself and denying his human nature, and by reason of this very fact he will suffer the worst penalties, even if he escapes what is commonly considered punishment.

III. Obamacare as Denial of Rights to Life, Liberty & Property

The Declaration & US Constitution protect Life, Liberty & Property. Yet many believe that Obamacare is a serious threat to all of these. Consider the following commentator’s thoughts:

Mark Levin excoriated the Supreme Court and Chief Justice John Roberts, saying:

This decision I would go as far to say is lawless. Absolutely lawless! Just because five lawyers in black robes, one of whom was purported to be a conservative, a man I knew a long time ago, issue a decision of the sort that they issued doesn’t make it proper. As a matter of fact, this decision I would go as far to say is lawless. Absolutely lawless. That’s why people are stunned.

Rand Paul also commented on the Court’s decision:

Today the Supreme Court—the ruling body that our Founding Fathers created to protect citizens from tyranny—decided to uphold Obamacare and thus stripped Americans of their personal liberties and freedoms. We have heard the Court’s opinion loud and clear, but now it’s time for them to hear us. It is up to us to reclaim our constitutional rights. It is up to the American people to end President Obama’s political agenda. Obamacare is wrong for Americans and it will destroy our health-care system. This now means that we must fight every hour, every day until November to elect a new president and a new Senate to repeal Obamacare.

IV. Unjust Law As No Law At All

A number of famed legal expositers have stated explicitely that a bad law is not binding. Consider Thomas Aquinas, considered history’s greatest authority on natural law, on just and unjust laws:

Laws framed by man are either just or unjust. If they be just, they have the power of binding in conscience, from the eternal law whence they are derived, according to Prov. 8:15: “By Me kings reign, and lawgivers decree just things.”

On the other hand laws may be unjust in two ways: first, by being contrary to human good… The like are acts of violence rather than laws; because, as Augustine says (De Lib. Arb. i, 5), “a law that is not just, seems to be no law at all.”

Secondly, laws may be unjust through being opposed to the Divine good: such are the laws of tyrants inducing to idolatry, or to anything else contrary to the Divine law: and laws of this kind must nowise be observed, because, as stated in Acts 5:29, “we ought to obey God rather than man.”

V. Do Americans Have a Right to Rebel Against Unjust Laws?

Probably no American is more celebrated for his views of law, tyranny and the right to engage in civil dissobedience than Dr. Martin Luther King, Jr. In his “Letter from a Birmingham Jail” Martin Luther King, Jr. said,

You express a great deal of anxiety over our willingness to break laws. This is certainly a legitimate concern. One may well ask: “How can you advocate breaking some laws and obeying others?” The answer lies in the fact that there are two types of laws: just and unjust. I would be the first to advocate obeying just laws. One has not only a legal but a moral responsibility to obey just laws. Conversely, one has a moral responsibility to disobey unjust laws. I would agree with St. Augustine that “an unjust law is no law at all.”

Now, what is the difference between the two? How does one determine whether a law is just or unjust? A just law is a man made code that squares with the moral law or the law of God. An unjust law is a code that is out of harmony with the moral law. To put it in the terms of St. Thomas Aquinas: An unjust law is a human law that is not rooted in eternal law and natural law. Any law that uplifts human personality is just. Any law that degrades human personality is unjust.

There is nothing new about civil disobedience. It was evidenced sublimely in the refusal of Shadrach, Meshach and Abednego to obey the laws of Nebuchadnezzar, on the ground that a higher moral law was at stake. It was practiced superbly by the early Christians, who were willing to face hungry lions and the excruciating pain of chopping blocks rather than submit to certain unjust laws of the Roman Empire. To a degree, academic freedom is a reality today because Socrates practiced civil disobedience. In our own nation, the Boston Tea Party represented a massive act of civil disobedience.

Conclusion—John Locke’s Thoughts on Bad Government

John Locke, the Founders’ model for much American legal and government theory says the following about unjust government:

“Whenever the power that is put in any hands for the government of the people, and the protection of our properties, is applied to other ends, and made use of to impoverish, harass or subdue them to the arbitrary and irregular commands of those that have it; there it presently becomes tyranny, whether those that thus use it are one or many”. (Second Treatise, Chapter 18).


Kelly OConnell

Kelly O’Connell hosts American Anthem on CFP Radio Sundays at 4 pm (EST).

Kelly O’Connell is an author and attorney. He was born on the West Coast, raised in Las Vegas, and matriculated from the University of Oregon. After laboring for the Reformed Church in Galway, Ireland, he returned to America and attended law school in Virginia, where he earned a JD and a Master’s degree in Government. He spent a stint working as a researcher and writer of academic articles at a Miami law school, focusing on ancient law and society. He has also been employed as a university Speech & Debate professor. He then returned West and worked as an assistant district attorney. Kelly is now is a private practitioner with a small law practice in New Mexico. Kelly is now host of a daily, Monday to Friday talk show at AM KOBE called AM Las Cruces w/Kelly O’Connell