Integrity Fail: Republicans Pass An Anti-Abortion Bill, Thus Undermining Their Argument Against Unconstitutional Overreach By Democrats

I bet this guy is a Republican.

I bet this guy is a Republican.

The bill the Republicans in the House just passed to ban abortions after 20 weeks undermines every argument the party has made against the abuse of the Constitution’s Commerce Clause to allow the federal government to meddle in state matters. One’s position on abortion isn’t relevant to the ethics and law here: I agree whole-heartedly with the ban in principle.

Abortion isn’t commerce, however. For decades, the Commerce Clause’s provision giving Congress the power to “regulate commerce . . . among the several states” has been stretched beyond all reason and the limits of language by Democratic majorities.  It has been conservative legislators, scholars and pundits who have screamed about it. Indeed, this was the primary basis for the attack on Obamacare in the Supreme Court case NFIB v. Sebelius, and the majority did find that the so-called “individual mandate” exceeded Congress’s Commerce Clause limitations.

The abuse of the Commerce Clause has been the primary means by which the Founders’ intentional restraints on federal  government power over the states and individuals have been circumvented by big government advocates. Some of the measures that were ingeniously slipped by the Commerce Clause using dubious justifications have been necessary and beneficial, like Federal laws against discrimination. Those measures, however, greased an ever-slipperier slope that has made the Clause a virtual nullity.

Supposedly, Republicans believed that it was important to start taking the Constitutional limits on Congressional power seriously again, because the alternative would be a Congressional dictatorship over the states. Now we know that the Republicans are just as willing to trample the Commerce Clause as Democrats are, as long as their pet social issues are being served. Continue reading

Jerks, Liars, Hypocrites, Fools and Hoosiers: 10 Ethics Observations On Indiana’s Religious Freedom Restoration Act Controversy

Indiana5

1. The law was passed to make discrimination against gays, trans individuals and especially same-sex couples seeking marriage if not easier, to at least seem easier. Anyone claiming otherwise is lying, or being intentionally obtuse. Would Indiana be passing this law without the Hobby Lobby decision or the various court rulings requiring photographers, bakers, and other businesses to provide the same products and services to gay couples that they do to heterosexuals? Yes, you say? Tell me another.

As GLAAD alertly pointed out, Governor Pence was surrounded by anti-gay activists when he signed the bill:

GLAAD Pence

This is res ipsa loquitur, and doesn’t speak well for the Governor’s candor or intelligence.

2. Context matters. The original laws of this sort (the Federal law signed by President Clinton is also called the Religious Freedom Restoration Act) were part of the left’s long range pro-drug strategy, like medical marijuana. It was essentially a hippie law designed to create a slippery slope to recreational drug legalization by allowing fringe religious groups, specifically Native American tribes, to use peyote in tribal ceremonies. Now you understand why Clinton signed the bill.

Oops. Excuse me if I enjoy the spectacle of the clever members of the Church of the Perpetually Stoned—including the ACLU, which once supported such laws as long as they pointed the way to their young lawyers being able to have their Saturday night joints legally but now opposes them—being hoisted on their own petard.

“When the federal government adopted a religious protection act in 1993, same-sex marriage was not on the horizon,” whines the New York Times. Well, competent, well-considered, properly drafted, responsibly passed laws don’t suddenly become unbearable, then fine, then unbearable again with every shift of the cultural winds. The intent of the law was never to protect mainstream religions, but cloaked itself in language that did. It backfired.

3. That being stipulated, the good states need to read their own laws before they start grandstanding. Connecticut Governor Dan Malloy just announced on Twitter that he plans to sign an executive order banning state travel to Indiana in response to its Religious Freedom Restoration Act. Yet Connecticut, hippie enclave and bedroom community of rich, white, liberal New Yorkers that it is, happily jumped on the religious freedom train with a law of its own, one that, as the Federalist points out, makes discrimination on the basis of religion easier than the Hoosier version, which only prohibits the government from substantially burdening religion. Connecticut’s law does not include the word “substantially,” meaning that all government-enacted burdens on religion are theoretically illegal.

I wonder how Malloy is going to ban government travel to Connecticut? Is the theory that the same law can be good when liberal states pass it and evil when those bad conservative states pass it? It is more likely that the governor hasn’t looked at his own state’s law.

4. The hysteria being stirred up over the supposed horribles Indiana’s law will lead to is irresponsible. Jonathan Adler explains on The Volokh Conspiracy: Continue reading

Want A Perfect Example Of “Deceit”? Here You Go:

"Believe me, once you get the hang of deceit, you'll wonder how you ever got through a day without it!"

“Believe me, once you get the hang of deceit, you’ll wonder how you ever got through a day without it!”

A substantial number of people don’t understand what “deceit” is, or think that what constitutes deceit isn’t a lie. Deceit, which I used to joke was the official language of Washington, D.C. until it was changed officially to Blatant Mendacity, is when a statement is literally true, but stated in such a way or in a context intended to make the reader or listener believe something that is not true at all. The fact that the statement may have been factual in a pure sense does not diminish its unethical character as a lie. Its intent is to deceive. It is a lie, just a particularly insidious one, aimed at the trusting, unwary, undiscerning and gullible.

I am always looking for a good example of this peculiar form of deception, and they don’t come much better than this.

Drexel University professor Robert Brulle performed a study he eventually called “Institutionalizing delay: foundation funding and the creation of U.S. climate change counter-movement organizations,”  and it was subsequently published  in Climatic Change. Brulle identified 91 organizations that oppose anti-climate change policies, and added up the annual operating budgets of these groups, many of which are active in many issues and that devote a small percentage of their funding to climate change matters at all. He then characterized the resulting total of about $900 million per year from 2003 to 2010 as representing the resources dedicated to blocking the regulation of greenhouse gas production. Brulle’s  study also treats foundation grants to these organizations if every dollar given is earmarked for climate policy opposition. Taking the hand-off from the study’s framing, The Guardian headlined its findings, “Conservative groups spend up to $1bn a year to fight action on climate change.” Notice the “up to,” which would apply if every cent given to organizations like the American Enterprise Institute, The Reason Foundation, The Cato Institute, The Heritage Foundation, the Hoover Institute, the Hudson Institute and many others were only expended or intended to be spent on anti-climate change position papers and advocacy. This isn’t just a gross exaggeration: it’s a lie, intended to be misleading. Continue reading

Ethics Hero: Attorney Paul Clement

John Adams defended the guys in red, and Paul Clement understands why.

Law firm King & Spalding announced Monday that it would no longer represent congressional Republicans regarding the constitutionality of the Defense of Marriage Act (DOMA), the controversial 1996 legislation that defines marriage as being only between a man and a woman.. In response, the firm’s chief appellate lawyer, Paul Clement, who was handling the case, resigned from the firm.

In February, the Obama administration announced that its Justice Department would refuse to defend DOMA in a number of lawsuits, an unusual, controversial and troubling decision. It doesn’t take a lot of imagination to conceive of other federal laws another administration might decide to render dead letters by non-defense despite being duly passed by the people’s representatives. A government has an obligation to duly execute its laws or repeal them. The policy of the Administration regarding DOMA raised issues of governmental integrity quite separate from the provisions of the law itself. Continue reading