Posts Tagged ‘Wickard vs. Filburn’

“Ghost Gun” Ban Headed To Supreme Court

Monday, April 22nd, 2024

Another ill-conceived bit of DOJ gun regulation is now headed to the Supreme Court.

After the U.S. Department of Justice (DOJ) promulgated a rule to regulate home-built firearm kits, or what the Biden administration calls “ghost guns,” two Texas residents filed a lawsuit challenging the legality of the rule that will now be heard by the Supreme Court of the United States (SCOTUS).

The Biden Administration and other gun-grabbing Democrats call them “ghost guns” because they are literally, by law, not guns. They’re unfinished 80% receiver kits, or build kids that you must finish at home on a milling machine, 3D printer, etc. American citizens building their own guns without the approval of the federal government (which has only occurred since, oh, about 1873) promises to thwart their plans of complete civilian disarmament, hence “ghost gun” regulations.

Represented by the Firearms Policy Coalition (FPC), the lawsuit from plaintiffs Jennifer VanDerStok and Michael Andren contends the Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF) exceeded the boundaries of federal law by implementing the new rules, which treat unfinished firearm kits as finished firearms and requires all firearms to possess a serial number.

The DOJ argued it simply wants to make sure the unfinished parts kits are treated like any other firearm and says implementation of the rule will not prevent anyone who is lawfully allowed to possess a gun from obtaining one. Those wanting to buy one would need to undergo the regular process to purchase any firearm, which includes a background check.

The plaintiffs disagree, writing in their SCOTUS brief that they believe the federal government’s goal in implementing the rule isn’t to simply regulate the firearm kit industry, but to get rid of it.

“The expected result of ATF’s Rule was not simply to regulate this industry but to destroy it,” the FPC wrote, pointing to a communication from the ATF to the FBI regarding the rule’s effect.

“The ATF informed the FBI that the Rule should not be expected to significantly impact the background check system because “many parts kit manufacturers and dealers will go out of business,” the brief continued.

Both a federal judge in North Texas and subsequently the U.S. 5th Circuit Court of Appeals sided with the plaintiffs in challenging the rule, prompting the DOJ to file an appeal with SCOTUS.

On Monday, SCOTUS granted a review of the case for its fall term, setting up a final legal showdown between the gun rights groups and the federal government on the issue.

In previous Supreme Court cases on the legality of various firearms sale and registration acts, the Commerce Clause of the United States Constitution has typically done a lot of heavy lifting. However, someone producing a gun in their own workshop for personal use and not to sell in another state, would not seem to fall under the purvey of federal regulation were it not for the radical expansion of federal power to stick it’s nose into every possible affair of private citizens afford by such post-New Deal decisions as Wickard vs. Filburn.

Maybe the Supreme Court will finally use this opportunity to reign in the federal government’s unlegislated regulatory powers based on vague, unenumerated Commerce Clause rationales.

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Posted in Guns, Regulation, Supreme Court, Texas | 6 Comments »

Texas Constitutional Amendment Voting Started Today (With Recommendations)

Monday, October 23rd, 2023

Another Constitutional Election Ballot (crappy formatting there, Ballotpedia is upon us, and early voting starts today.

Here’s Texas Scorecard’s roundup, with input from Texans for Fiscal Responsibility, True Texas Project, and the Huffines Liberty Foundation and links to Texas Legislative Council Analysis of the amendments. The Texan also has a roundup.

Here’s my quick and dirty list of propositions and recommendations.

  1. Proposition 1 (HJR 126): Protecting the right to engage in farming, ranching, timber production, horticulture, and wildlife management. This is the “right to farm” bill, which provides a bulwark against local, state and federal interference in food-growing activities, such as were messed with by some states during the 2020 Flu-Manchu panic (such as Michigan’s Democratic governor Gretchen Whitmer banning seed sales. And remember, such interference in people growing food on their own land was blessed by the Supreme Court in Wickard vs. Flburn. Recommendation: Vote FOR Proposition 1.
  2. Proposition 2 (SJR 64): Authorizing a local option exemption from ad valorem taxation by a county or municipality of all or part of the appraised value of real property used to operate a child-care facility. Another subsidy for a favored industry. Recommendation: Vote AGAINST Proposition 2.
  3. Proposition 3 (HJR 132): Prohibiting the imposition of an individual wealth or net worth tax, including a tax on the difference between the assets and liabilities of an individual or family. A wealth tax is total commie bullshit. Recommendation: Vote FOR Proposition 3.
  4. Proposition 4 (HJR 2 from the second special session): Authorizing the legislature to establish a temporary limit on the maximum appraised value of real property other than a residence homestead for ad valorem tax purposes; to increase the amount of the exemption from ad valorem taxation by a school district applicable to residence homesteads from $40,000 to $100,000; to adjust the amount of the limitation on school district ad valorem taxes imposed on the residence homesteads of the elderly or disabled to reflect increases in certain exemption amounts; to except certain appropriations to pay for ad valorem tax relief from the constitutional limitation on the rate of growth of appropriations; and to authorize the legislature to provide for a four-year term of office for a member of the board of directors of certain appraisal districts. Well, that’s a mouthful. I don’t care for the little unrelated special interest payoff shoved in at the end, but do appreciate the tax relief, temporary though it may be. Recommendation: Vote FOR Proposition 4.
  5. Proposition 5 (HJR 3): Relating to the Texas University Fund, which provides funding to certain institutions of higher education to achieve national prominence as major research universities and drive the state economy. Our social justice-infected universities need less money, not more, and if they’re not willing to give up being factories for radical leftwing indoctrination, they need hard reboots. Recommendation: Vote AGAINST Proposition 5.
  6. Proposition 6 (SJR 75): Creating the Texas water fund to assist in financing water projects in this state. While there’s a need for various water projects around the state, “creating fund X administered by agency Y for the benefit of entity Z” type schemes always offer the opportunity of abuse, and the principle of subsidiarity demands that local entities pay for their own damn water projects, not rely on off-general budget slush funds. Recommendation: Vote AGAINST Proposition 6.
  7. Proposition 7 (SJR 93): Providing for the creation of the Texas energy fund to support the construction, maintenance, modernization, and operation of electric generating facilities. While Texas needs more reliable grid, I see nothing about this proposition that would prevent the fund from being used to subsidize more of the unreliable “green” energy lawmakers already seem to love subsidizing. To quote the Huffines Foundation: “Proposition 7 would increase the cost of electricity without improving the reliability of the electric grid. It would also accelerate the trend toward ending market competition and putting Texas politicians and bureaucrats in control of the Texas electricity market. Texans should reject more subsidies for electric generators and let politicians know that grid reliability should be increased by ending renewable energy subsidies.” Recommendation: Vote AGAINST Proposition 7.
  8. Proposition 8 (HJR 125): Creating the broadband infrastructure fund to expand high-speed broadband access and assist in the financing of connectivity projects. More corporate welfare for things the state shouldn’t be subsidizing. Recommendation: Vote AGAINST Proposition 8.
  9. Proposition 9 (HJR 2 from the regular session): Authorizing the 88th Legislature to provide a cost-of-living adjustment to certain annuitants of the Teacher Retirement System of Texas. TFR and TTP came out as neutral. While not philosophically opposed, I suggest voting against until there’s an outside audit to confirm that none of this money is being siphoned off into ESG investing. Recommendation: Vote AGAINST Proposition 9.
  10. Proposition 10 (SJR 87): Authorizing the legislature to exempt from ad valorem taxation equipment or inventory held by a manufacturer of medical or biomedical products to protect the Texas healthcare network and strengthen our medical supply chain. More special interests carveouts. Vote AGAINST Proposition 10.
  11. Proposition 11 (SJR 32): Authorizing the legislature to permit conservation and reclamation districts in El Paso County to issue bonds supported by ad valorem taxes to fund the development and maintenance of parks and recreational facilities. El Paso should pay for it’s parks out of general funds, not bonds, since parks don’t generate revenue to pay back bonds. Vote AGAINST Proposition 10.
  12. Proposition 12 (HJR 134): Providing for the abolition of the office of county treasurer in Galveston County. Normally, I’d be for anything that eliminates a government official. But there’s this from TTP: “AGAINST –The current Treasurer campaigned on a promise to eliminate his position, which prompted this legislative action. Since one less government position means less government, we initially supported this amendment. However, we then heard from many conservative activists in the Galveston area who said they don’t want the position to be dissolved because there will be no more accountability to the office and it will be handed to cronies.” I sort of believe this, since my late uncle (who ran a restaurant there) said Galveston was corrupt from top to bottom. No recommendation.
  13. Proposition 13 (HJR 107): Increasing the mandatory age of retirement for state justices and judges. AGAINST. Turnover at least offers the opportunity of breaking up entrenched power.
  14. Proposition 14 (SJR 74): Providing for the creation of the centennial parks conservation fund to be used for the creation and improvement of state parks. More off-budget shenanigans. Vote AGAINST Proposition 12.

    15. Williamson County early voting locations can be found here. Travis County early voting locations can be found here.

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Posted in Elections, Regulation, Texas, Waste and Fraud, Welfare State | 9 Comments »

Who Had “Rick Perry, Psychedelic Warrior” on Their 2023 Bingo Card?

Monday, September 25th, 2023

To the surprise of many, Rick Perry has come out for legalization of psychedelic drugs to treat PTSD.

Republican Rick Perry served as governor of Texas from 2000 to 2015 and then did a stint as secretary of energy from 2017 to 2019. He describes himself as a small-government conservative. He’s not in favor of legalizing all drugs, but in the last five years he has warmed up to the idea that psychedelics could be a valuable and legitimate treatment for trauma.

Reason’s Nick Gillespie sat down with Rick Perry in June at the Psychedelic Science 2023 conference to discuss how poorly the U.S. deals with those suffering from post-traumatic stress disorder (PTSD) and how he believes that psychedelic-assisted therapy can help.

Q: How have you changed your mind about psychedelics?

A: When I got introduced to this approximately five years ago, it was through a young man [Morgan Luttrell] who worked with me at the Department of Energy.

I was the secretary of energy and he was seeing some of his colleagues in the special operations world—this is a former Navy SEAL, who, interestingly enough, today is a United States congressman. He’s the one that started getting me comfortable with “Rick Perry” and “psychedelics” in the same sentence. His twin brother, Marcus Luttrell, lived with us at the governor’s mansion as my wife and I were learning about post-traumatic stress disorder and how poorly our government was dealing with this. And we were trying to find solutions to help heal this young man.

Q: Can psychedelics help individuals struggling with PTSD?

A: I’ve educated myself about the history of this and why psychedelics got taken away from the research world, from the citizens at large. These are medicines that were taken away for political purposes back in the early ’70s that we need to reintegrate. The potential here is stunningly positive.

I’ll give you one example: Rachel Yehuda, Ph.D., who’s working at [Veterans Affairs] in New York. She has two studies in phase three that are showing just amazing results. They have classic symptoms—anxiety, depression, sleeplessness, suicidal thoughts, one or all of those. Seventy-five percent of those individuals who are treated have zero symptoms after six months. Those are stunning numbers.

Q: Do you think people in your political tribe will be able to grasp this message about psychedelics treating trauma?

A: This is an education process and the short answer is yes, I do. Because I’m not for legalization of all drugs. We need to go a little more pedestrian here. Government has fouled this up substantially in the past. Let’s not give them a reason to mess this up, again. Let’s go thoughtfully at an appropriate pace as fast as we can.

Government needs to be limited. It needs to be restrained at almost every opportunity that you can. We haven’t been very successful with that in our country.

This isn’t the first time “Rick Perry” and “drugs” have appeared in a post here, as there was a significant possibility that Perry was hopped up on goofballs following back surgery in his 2012 presidential run flameout. But Perry is very far indeed from a liberal squish. Maybe the time has arrived for Republicans to give serious thought to rethinking current drug policy.

The United States Constitution is silent on the issue of drug regulation, which, under the 10th Amendment, should make drug policy the provenance of the states for anything not involving interstate commerce. Federal marijuana prohibition rests on the deeply un-conservative New Deal expansion of federal powers enshrined in Wickard vs. Filburn, which allowed the federal government to regulate what people grow on their own land for their own consumption. And our current drug prohibition policies aren’t keeping illegal drugs flowing into the country from Mexico and China.

On the flip side of that coin, deep blue locales like San Francisco and Seattle have amply demonstrated how not to legalize drugs, refusing to enforce basic law and order and letting mentally ill transients shoplift at will and shit in the streets, destroying the quality of life for law-abiding citizens. Clearly de facto legalization doesn’t work if government refuses their fundamental duty of ensuring ordered liberty.

There’s a vast range of policy options between “throwing teenagers into prison for years for smoking a joint” and “let drug addicted transients shit in the streets.” San Francisco and Seattle show how Democrats run things if left to act on their instincts of hating the police and farming homeless populations for graft. That means Republicans will have to come up with policy options for slow, careful, phased drug legalization policies on their own.

State legalization of marijuana has been a very mixed bag, with vast illegal grow operations popping up in states with even partial/medical legalization, and it hasn’t been nearly the economic boon that the legal pot lobby had forecast. More careful experimentation and data gathering is required.

For psychedelics, the literature seems to indicate that addiction rates are very low, but there are obviously people who have seriously damaged their mind by tripping to much.

But ultimately, the purpose of government is not to protect citizens from themselves. Drug prohibition cuts against fundamental American principles. A lot of modern drug addiction has it roots in the culture of despair, lawlessness, family breakup, social decline and general failure Democrat-run cities have cultivated in their poorest citizens. Starting to fix those problems would do far more to fix the problems of addiction than current drug prohibition policies.

Obviously Joe Rogan needs to interview Rick Perry so they can talk about psychedelic drugs..

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Posted in Republicans, Texas | 13 Comments »

Borepatch on the Failure of the War on Drugs

Saturday, January 5th, 2019

Borepatch and co-blogger ASM826 have been trading off talking about the massive pile of failure that is the War on Drugs.

Start with Borepatch’s piece on the similarities between gun control and the war on drugs:

Let me take a stab at providing answers to these questions from the “we should declare victory in the War on Drugs and go home” perspective. The proposal is that most or perhaps all drugs be decriminalized, offered for sale, and taxed.

Rule #1. Can the person proposing the law state what they think the law will accomplish? This is intended to accomplish five specific things:

  1. Remove the perceived need to militarization of the police forces, no-knock raids, asset forfeiture, controls on how much you can deposit at your bank, etc. It’s caustic for the Republic and it costs us a lot of money. It’s an anti-tyranny goal.
  2. Improve the purity of the drugs on the market which will reduce overdose deaths. Food and Drug purity laws would apply and so the heroin that Joe Junkie buys at the local Alcohol Beverage and Drug Emporium wouldn’t be the equivalent of bathtub gin. His gin isn’t adulterated (like it was during the Prohibition days) and his smack shouldn’t be either.
  3. Lower the price of drugs, by eliminating the risk premium that must exist to cover expected loss from seizure, arrest, etc.
  4. Eliminate the massive profits that are flowing to drug cartels, which fund a bunch (admittedly not all) of the violence associated with illegal drug use.
  5. Generate a tax revenue stream that can be targeted towards providing detox centers for drug users who want to fight their addiction.

Laws about theft, driving under the influence, etc would fully apply to junkies who commit these crimes, just as they do today. Peter, Aesop, and Bill are entirely correct that today these are not “victimless” crimes.

Rule #2. Can the person proposing the law state how likely the law is to accomplish the goal from Rule #1? Let’s break these down by the five points above.

  1. No doubt some agencies will resist this – police unions, prison guard unions, the DEA, etc will rightly see the reduction of public funding as a threat to them. However, this is more of a hinderance to getting decriminalization passed in Congress than in implementation. In any case, I don’t see any fundamental disagreement between the two camps in this as a goal.
  2. This seems a no-brainer, as the illegal drug market is replaced by a legal one. It will be safer for both sellers and users, and legalization will probably attract big corporations who know how to mass produce pure products. I’m not sure you’ll see Superbowl advertisements for “The Champagne of heroin” but I don’t think you need to for success here.
  3. This seems like an absolute no-brainer. You are eliminating some very costly parts of the supply chain (machine guns, private armies, etc). Not sure how big this is but it sure isn’t zero.
  4. We saw this with the end of Prohibition. Today’s Al Capones are drug king pins.
  5. Tax money is notoriously fungible and is often diverted by politicians, but we see tax revenue streams from legal pot in places where it was legalized (e.g. Colorado).

I endorse this line of thinking. I cannot, however, endorse Borepatch’s heinous use of two spaces after periods in the computer era…

See also his bit on how the war on drugs has made things much worse for people in chronic pain.

My own two cents (familiar to regular readers) is that federal drug prohibition is unconstitutional on Ninth and Tenth Amendment grounds, being neither necessary nor proper for the federal government to enforce, and thus should be left to the states. This is especially true of federal prohibition of growing marijuana for personal use, as only the warped, grossly expansive interpretation of the commerce clause endorsed in Wickard vs. Filburn would give the federal government standing to determine what can and can’t be grown on a person’s private property for their personal consumption. Elimination of federal prohibition would allow states to experiment with the right mix of policies for narcotics. Let Utah try total prohibition, Portland complete legalization and deregulation, Maryland decriminalization and drug treatment, and Pennsylvania state owned drug dispensaries, and see which aspects of which approaches work best. That’s what federalism and subsidiarity are for.

Anyway, there’s a lot more over there, and a lot of links to all sides of the debate, that are worth pursuing.

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Posted in Crime, Regulation | 3 Comments »

A Bad American Thinker Piece on Marijuana

Wednesday, April 26th, 2017

Paul Ingrassia makes “The Case against Legalizing Marijuana.” It’s a bad piece because it asks the wrong questions, and thus comes to the wrong conclusions. It approaches the question from a harm/benefit analysis angle, without ever pausing to ask: Why is this the government’s concern?

The question it doesn’t ask is: Is it the federal government’s job to continue federal marijuana prohibition?

Missing from this piece: Any mention of the Constitution. Where in the Constitution did the founding fathers list control of what people might grow in their own ground as an enumerated power of the federal government?

Nowhere.

The statutory standing of the federal government to do so rests on a tendentiously expansive reading to the commerce clause in Wickard vs. Filburn, which radically expands the power and scope of the federal government. Absent interstate commerce, federal marijuana regulation is neither necessary nor proper.

The question of benefit or harm of marijuana is irrelevant to the question of whether the federal government has the enumerated constitutional power to regulate marijuana if it is not being sold across state lines. It does not. Therefore, under the Tenth Amendment, federal marijuana prohibition should be ended and the power of non-interstate commerce regulation on marijuana should devolve to the states, to regulate or not as voting citizens and their representatives see fit.

Further nits:

  • “Additionally, with legalization follows an implicit societal acknowledgment that marijuana use is benign or even advantageous.” No it doesn’t. Ingrassia makes the erroneous assumption that it is government’s job to decide what’s “good” or “bad” for people. Spending all your time drinking and watching reality TV is unquestionably bad for you, but it’s not government’s job (much less the federal government’s job) to regulate such behavior.
  • “Libertarians likewise should take a guarded outlook when evaluating Colorado, their magnum opus. Indeed, tax revenues are up – but at what cost? Is the inevitable uptick in pot users an opportunity cost worth having for such revenues? Given its novelty, the wider societal implications are not fully explored, and the economics of the issue is far from definitive.” This makes the erroneous assumption that Libertarians believe that all that is not permitted should be forbidden rather than the reverse.

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    Posted in Crime, Regulation | 2 Comments »

    TPPF Sues Over Wilco Cave Spider

    Monday, December 21st, 2015

    Here’s something on the surface that seems like a small local story, but it’s one that could potentially have huge national implications.

    The Texas Public Policy Foundation (TPPF)’s Center for the American Future representing Williamson County resident John Yearwood and Williamson County, Texas today filed suit to intervene into the pending lawsuit seeking delisting of the Bone-Cave Harvestman from the Endangered Species Act. Mr. Yearwood and Williamson County, Texas challenge the authority of the federal government to use the Interstate Commerce Clause to regulate non-commercial interactions with the Bone Cave Harvestman arachnid, which only exists in two central Texas counties, is not bought nor traded in interstate commerce, and does not otherwise affect interstate commerce.

    “This lawsuit centers around respect for the rule of law and recognition that the Constitution establishes our federal government as having limited, enumerated powers,” said Robert Henneke, director of the Center for the American Future at the Texas Public Policy Foundation. “Congress has the power to regulate commerce among the states, i.e. Interstate commerce. Congress’ Commerce power through the Endangered Species Act should not, therefore, extend to regulate the Bone-Cave Harvestman species – an intrastate cave-arachnid existing only in caves in Central Texas without any commercial value. For there to be rule of law, there must be limits to government power.”

    The Interstate Commerce Clause is the camel’s nose by which the federal government has stuck its vast regulatory powers into just about every crevice of the body politic. Because the Williamson cave spider case clearly has no impact on interstate commerce, there’s the potential for the case to unravel a whole host of intrusive New Deal-era commerce clause rulings, of which Wickard vs. Filburn is probably the most egregious.

    There’s no guarantee the case will get to the Supreme Court, but if it does…

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    Posted in Supreme Court, Texas | No Comments »

    Interview With Mario Loyola on the Constitutionality of ObamaCare

    Tuesday, March 27th, 2012

    Given his background as both Solicitor General and a former fellow at the Texas Public Policy Foundation‘s Center for Tenth Amendment Studies, I was hoping to provide a mini-interview with Ted Cruz on the constitutional issues surrounding ObamaCare, but so far he has been too busy on the campaign trail to get back with answers. Fortunately, the current TPPF Center for Tenth Amendment Studies Director (and frequent National Review contributor) Mario Loyola was able to step up and answer some of the same questions.

    My questions are in italics.

    1. In the ObamaCare case the Supreme Court agreed to review, Florida vs. U.S. Health Department, Judge Roger Vinson ruled both that the individual mandate was not constitutional, and that ObamaCare was not severable, i.e. if any part of the law was ruled unconstitutional, all of it was unconstitutional. The 11th Circuit agreed that the individual mandate was unconstitutional but partially reversed Vinson by saying that it was severable from the rest of ObamaCare. Are the various clauses of ObamaCare severable, and have the courts previously ruled on the severability of law where no such severability was enumerated in the original statute?

    The chief modern Supreme Court case on severability is Alaska Airlines v. Brock (1987), which held that when one part of a law is found to be unconstitutional, the remainder will be upheld if (1) it will be “fully operative” as a law, unless (2) it is evident that Congress would not have enacted the remainder without the invalid part. In our Supreme Court amicus curiae brief on this issue, we argue that the Court should conduct a thorough analysis of statutory interactions, in order to understand how the insurance “reforms,” Medicaid expansion, and premium subsidies (essentially, Titles I and II of the ACA) were all interrelated with the individual mandate in the original legislative bargain. Without the mandate, these other provisions will not function as Congress intended and would never have passed.

    For example, at the heart of the ACA is its provision for “guaranteed issue” of health insurance, which requires health insurance companies to provide insurance for all applicants regardless of health status. In a pure “guaranteed issue” scenario, healthy people have an overwhelming incentive to drop their health insurance and wait until they are sick to get it. As healthy people leave the rolls, the per-unit cost of insuring the remaining pool of (riskier) insured rises, which pushes premiums up, which in turn drives more healthy people off the rolls. In the end, the only people who enroll are those who are actually sick, such that premiums approach the actual cost of health care. Under such a scenario, the insurance industry eventually collapses. The mandate is designed to prevent this adverse selection spiral by forcing everyone to have health insurance. Without the mandate, the insurance reforms won’t function as intended, and the resulting law is one that Congress never would have passed.

    2. Do recent cases like U.S. vs. Lopez and Seminole Tribe vs. Florida indicate that the Roberts Supreme Court has retreated from the high water mark of expansive interpretation of the Commerce Claus in Wickard vs. Filburn?

    Lopez punctured the common perception after Wickard that Congress could regulate whatever it wanted. But Lopez unfortunately embraced the logic of Wickard, and thus did little to restore the pre-New Deal balance. Lopez stands for little more than the nearly naked assertion that the commerce power must have some limit, and even that modest proposition is almost impossible to square with Wickard.

    The difficulty for the Court here is that Wickard’s central doctrine – that Congress can regulate purely intrastate or non-commercial activity so long as it has “substantial effects” on interstate commerce – has no logical stopping point. If the federal government can regulate any class of activity with a “substantial effect” on interstate commerce, it can regulate virtually all activity. The Supreme Court is unlikely to use this case as an opportunity to overturn Wickard, but it shouldn’t extend such a flawed precedent into the wholly unprecedented arena of forcing individuals to engage in certain activities in order to conscript them into the service of a federal regulatory scheme.

    3. From at least Lopez onward, Justice Clarence Thomas has been one of the leading voice for both constitutional originalism in general, and of a less expansive reading of the Commerce Claus in specific. Do you think his arguments have influenced judicial thinking in general, and his fellow Supreme Court justices specifically?

    Justice Thomas has been the most consistent of the justices in adhering to originalism as a method of interpreting the Constitution. If you look at Jan Crawford Greenberg’s book Supreme Conflict, it’s clear that Thomas’ convictions have affected the other justices, particularly the other justices among the Court’s so-called conservative block.

    4. Justice Anthony Kennedy is often considered the “swing vote” on the Supreme Court. Do you think Kennedy is receptive to constitutional originalism in general or a less expansive interpretation of the Commerce Claus specifically?

    The important thing to understand about Justice Kennedy here is that he is at heart a federalist. He is very concerned about maintaining the Constitution’s system of dual sovereignty and is skeptical of federal actions that encroach on traditional state prerogatives. You can see this in his concurrence in Lopez, as well as in his other writings. As Justice Kennedy notes in Lopez, democracy can only function if elected representatives are accountable to the people. When the federal government impinges upon areas that have been traditionally left to the states, this undermines democratic accountability by clouding the issue of who is ultimately responsible for a given law.

    Thanks to Mr. Loyola (and to TPPF) for taking the time out of his busy schedule to answer these questions. Yesterday I linked to his primer on the issues. Here’s Loyola, Richard Epstein, and Ilya Shapiro (talk about your legal power trios!) on why the individual mandate is not severable from the rest of ObamaCare.

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    Posted in ObamaCare, Supreme Court, Texas | No Comments »

    Audio Interview With Ted Cruz: Part 1

    Tuesday, September 6th, 2011

    When I did this video interview with Ted Cruz on July 30, I also did an audio interview with him at the same time using an iPhone App called Recorder Pro. The video interview was done by Cruz’s staff (who have a much better camera than I do), and the resulting video was editing done to a sort of “Best of” piece emphasizing his campaign themes. I actually think the full interview will be more interesting to conservatives, as he goes into more detail about a number of topics, including border control, the budget deficit, and federal commerce clause overreach and the 10th Amendment, including a discussion of Wickard vs. Filburn.

    It’s taken a good bit longer to get it the audio up here than I wanted to, mainly because I’ve been pretty busy, but also because it was something of a pain to edit the interview and get it up here. First, I had Recorder Pro record in CAF format, which isn’t particularly widely used, so I needed one program to convert it into a .WAV file, and then another to edit the file (there was about a minute and a half of extraneous setup noise I wanted to spare you). Then, after all that, I found out the resulting audio file was too large post all at once, so I’ve split it into two chunks. The first half of the interview is below as an MP3. I’ll try to put up the second half in the next day or so, assuming I don’t get distracted by shiny objects.

    Ted Cruz Interview Part 1

    Also, as a bonus, here’s an essay by Ted Cruz and Mario Loyola on Federalism that discusses Wickard vs. Filburn.

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    Posted in Border Control, Budget, Economics, Elections, Regulation, Republicans, Supreme Court, Texas | No Comments »