The White House and their allies are already trying to push these long-ingrained stereotypes in preparation for this summer’s upcoming Supreme Court confirmation battle to replace Justice Stevens’ seat. Like most stereotypes, however, they are not true.

Republican Supreme Court appointees have long-stood against heinous racial discrimination. For example, President Rutherford B. Hayes, a Republican, appointed Justice John Marshall Harlan, the lone justice to dissent in the Civil Rights Cases, 109 U.S. 3 (1883) and Plessy v. Ferguson, 163 U.S. 537 (1896); these cases permitted segregation and “separate but equal” discrimination. President Herbert Hoover, a Republican, appointed Justice Owen Roberts (full disclosure: a fellow Penn and Daily Pennsylvanian alumnus), the lone Republican appointee on the Supreme Court in Korematsu v. United States, 323 U.S. 213 (1944), a case where six Democrat-appointed justices ruled that the Constitution permitted the government to forcibly herd U.S. citizens of a particular ethnicity into concentration camps. Justice Roberts’ vigorous dissent said that “convicting a citizen as a punishment for not submitting to imprisonment in a concentration camp, [solely] based on his ancestry, without evidence or inquiry concerning his loyalty and good disposition towards the United States” was a “clear violation of Constitutional rights.” Interestingly, the liberals preferred “assembly area” as the euphemism for these concentration or internment camps.

Even Justice Stevens, whom the media now calls a “liberal lion,” did not stand up for the “little guy” nor his First , Fourth, and Fifth Amendment rights as much as “conservative” justices like Justices Scalia and Thomas did.

In Texas v. Johnson, 491 U.S. 391 (1989), Justice Scalia joined Justice Brennan’s (now there was a liberal lion) majority opinion ruling that the First Amendment protected the disgusting act of burning the American flag as political expression. Justice Stevens separately dissented; in his view the government may imprison flag-burners for such political dissent. In Kyllo v. United States, 533 U.S. 27 (2001), Justice Scalia wrote the majority opinion, with Justice Thomas joining, ruling that the Fourth Amendment requires the police to obtain a proper warrant before searching your home with sophisticated surveillance equipment such as FLIR (Forward-Looking Infrared). Justice Stevens authored the dissent, calling Justice Scalia’s bright-line rule protecting your home’s privacy “at best trivial.” In Kelo v. City of New London, 545 U.S. 469 (2005), Justice Stevens wrote the majority opinion, with all the “liberal” justices joining him, ruling that the government may seize your private property and give it to an “evil” corporation under the guise of economic development. All the “conservative” justices dissented. Justice Thomas’ dissent noted that the corporate redevelopment scheme was “suspiciously agreeable to the Pfizer Corporation” and that the harm from Justice Stevens’ opinion would “fall disproportionately on poor communities … the least politically powerful.” Even Ledbetter v. Goodyear Tire & Rubber Co., 550 U.S. 618 (2007), which so outraged the Democrat Congress and President Obama that they passed and signed the Lilly Ledbetter Fair Pay Act of 2009, was merely an extension of United Air Lines v. Evans, 431 U.S. 553 (1977), where Justice Stevens’ majority opinion rejected a female flight attendant’s Title VII gender-discrimination claim because she did not sue within the statute of limitations. Justice Stevens’ opinion referred to the discrimination Ms. Evans suffered as “merely an unfortunate event in history which has no present legal consequences.”

None of this is to criticize Justice Stevens. Instead, the above examples are but a few which show that the stereotypes of “liberal” judges and “conservative” judges are nonsense. President Obama should seek Supreme Court nominees based not on these inaccurate stereotypes but rather on whether they are experienced, qualified, and understand that courts interpret the laws that legislators write, not make preferential political policy. If, however, President Obama insists on seeking nominees based on whether they stand up for the little guy, minorities, and their constitutional rights … well, as the above examples show, he would do very well to nominate someone like Justice Scalia or Justice Thomas.

That’s quite alright, because I would rather come directly to you to make important announcements like this:  Lt. Governor Phil Bryant has entered our class action lawsuit against the PPACA as an individual, private citizen.  He is serving as a Petitioner, and is the class representative for a uniquely important class:  employees of the State of Mississippi.

Lt. Governor Phil Bryant addresses crowd in Jackson, Mississippi

Why this new class is important.

Congress is now dictating what must be — and must not be — in your health insurance plan.  In other words, they are controlling the health insurance that your employer is offering you.  Socialism is defined as “government ownership or control of all the means of production (farms, factories, mines, and natural resources) and all the means of distribution (transportation, communications, and the instruments of commerce).”  Realize, “socialized medicine” is here, right now.  Even worse, by controlling what health insurance plans must be offered, Congress and the Executive branch are controlling your employer, and thus your employment.

Your liberty depends on the survival of your republic.  The PPACA is a direct attack on the republican form of government.

Every kid who’s ever put hand over heart and recited the Pledge of Allegiance knows that we live in a republic:  “I pledge allegiance to the flag of the United States of America, and to the republic for which it stands, one nation under God, indivisible, with liberty and justice for all.”

Kids pledging allegiance to the flag, and "to the republic for which it stands"

In fact, we have been blessed with what James Madison called “the compound republic of America,” having been guaranteed that each state is a sovereign republic in itself, not just the national government.  In this unique and hugely successful system of government, federal control over the states is an anathema:

This separation of the two spheres is one of the Constitution’s structural protections of liberty. “Just as the separation and independence of the coordinate branches of the Federal Government serve to prevent the accumulation of excessive power in any one branch, a healthy balance of power between the States and the Federal Government will reduce the risk of tyranny and abuse from either front.”

Printz v. U.S., 521 U.S. 898 (1997) (Scalia, J).  We’ve spent so much time focusing on the separation of powers amongst the three branches of government that we’ve forgotten about the very vital separation of powers between the States and Congress.  If the federal government dictates what the States can do, our republic is destroyed, and liberty-robbing tyranny is all that can result.

Congress has chosen to commandeer our state employees, even our elected officials, with the PPACA.  Lest you think that “commandeer” is too strong of a word to use, consider that the federal government now controls the terms and conditions of employment for all state workers everywhere.  States now must offer health insurance plans dictated only by the federal government; we all recognize that a health insurance plan is one of the most important aspects of the employer-employee relationship.  In fact, since it is nothing more than a form of compensation, it really is the most important aspect.

In the Printz v. US case I cited above, Justice Scalia said:  “When we were at last confronted squarely with a federal statute that unambiguously required the States to enact or administer a federal regulatory program, our decision should have come as no surprise.”  I think you can guess that the Court’s response was rather chilly toward the federal government’s overreaching.  In FERC v. Mississipi, the Supreme Court said that “this Court never has sanctioned explicitly a federal command to the States to promulgate and enforce laws and regulations.” FERC v. Mississippi, 456 U.S. 742, 761-62 (1982).  Congress may not commandeer state officials, or any state employees, in order to implement federal law.  In substance, this is exactly what Congress has done with the PPACA.  This is a clear violation of state sovereignty, and utterly destructive of the Constitution’s guarantee of a compound republic.

This class, that of state employees, is uniquely important.  Do you really want Congress to dictate the terms of employment between your state government and your state officials and civil servants?  Realize, this is 180 degrees out of phase with the intentions of the Framers, and with the clear statements implementing their vision found in the Constitution that they wrote.

Why is it important that Lt. Governor Bryant is a petitioner?

Lt. Governor Bryant is showing that any elected official can do this.  Actually, any state employee can do this, but we all recognize how important it is for us to get our elected leaders to take point, and lead.

Lt. Governor Bryant has a long history of fighting for conservative beliefs and traditional values.  His persistence in promoting conservative public policy stems from his belief that people, not the government, know best how to take care of themselves.  The way I see it, he has been fighting for liberty — freedom — for years.  I cannot think of a better person in this great State to represent the new class we have added.

He’s also a candidate for Governor.  Think about this — why shouldn’t our candidates, whether currently in office of not, be petitioners?  Why shouldn’t we go to town hall meetings, campaign rallies, and press conferences in order to push them into action, not just into making statements?

Here in Mississippi, as in other states, most people want for our state to enter into the lawsuit filed in Florida by fifteen other states.  Governor Haley Barbour (the very effective chairman of the Republican Governors Association and a former RNC chairman) has been pushing our Attorney General — a Democrat — to get into the lawsuit, but to no avail.  Governor Barbour is quite resourceful, and we hope that he will find a way to work around this obstacle.  Regardless, Lt. Governor Bryant isn’t waiting for anyone — he’s taking action now.

Put up or shut up.

Here in Mississippi, I’m proud to say that we’re up to two prominent elected officials (Senator Chris McDaniel and Lt. Governor Phil Bryant) who are taking positive, substantive action to save our healthcare system from the clutches of socialism, and our republican form of government from Congress.  How many does your state have?  None?  Well then, maybe it’s time that you made them earn their pay.

Write a letter, fax or email to the elected officials in your own state and tell them it’s time to stop posturing.  Are any of them hiding behind their Attorney General, saying “gee whiz, I want the state to get involved, but we can’t force the AG to do it, sorry guys”?  Tell them it’s time to put up, or shut up.  It takes courage for an elected state official to do what Lt. Governor Bryant is doing, but that is precisely what we demand of our elected officials — courage to do what is right.

So, what are you waiting for?  Get busy.

Bruno has been indicted under the controversial ” theft of honest services” law. The same law that Supreme Court Justice Anton Scalia says is unconstitutionally vague. Indeed, the US Supreme Court has taken not one but two “honest services cases” for review. The government has no evidence of bribes or improper pressure on government–required by the law–that Bruno took for his clients. Under New York Law, legislators are part-time  and are allowed to have outside income. Bruno , an non-lawyer with a business background, is a business consultant.

When the Government dropped hundreds of thousands of pages of new documents on Bruno’s defense team only days before trial Bruno’s lawyer asked Judge Gary Sharpe of the Northern District of New York for a mere two week delay. The motion was denied.

Indeed , in three weeks of trial Sharpe has overruled Bruno’s lawyer Abbe Lowell 49 times and sustained him twice while he has sustained the Government 36 times and overruled them twice.

But last week Sharpe showed why he is not fit to be a Federal Judge. After a particularly surprising ruling by the Judge, Bruno registered his shock facially and leaned over to speak to his lawyer. Sharpe went berserk and betrayed his animus towards the 81 year old Republican. “For once in your life you do not control something ….I do. If you ever do what you just did in the presence of the Jury again, which is question one of my rulings, I will take measures to make sure you never do that again.”

This arrogant Judge has one problem. Even though the New York Times headline says ” Judge in Bruno Corruption trial Chastises Him Over a Remark”-the court stenographer recorded no audible “remark” by Bruno! Sloppy reporting by Timesman Nick Confessore. How can there be a remark when the official record records none, thus Bruno conversation with his lawyer must have been inaudible.

Sharpe quickly dismissed a motion for a mistrial.

On top of this the Troy Record Reports that Judge Sharpe’s son is an assistant U S Attorney in the same office that is prosecuting Bruno. Sharpe should have had the integrity to recuse himself. Judge Sharpe is a disgrace to the Federal Bench caught up in what he thinks is his 15 minutes.

Citizens who want to contact Judge Sharpe and tell him to recuse himself in the name of fairness can e-mail him at gsharpe@courts.state.ny.us.

At risk of getting into a peeing match which my time budget may not allow me to finish, I believe that the dispute between Ed Morrissey over at Hot Air and the folks at the WashingtonExaminer joining Sen. David Vitter (and, by implication, I suppose me) is not necessary but worth resolving. Caution: it is also for the legislatively inclined or otherwise the pointy-headed. But, since I arguably joined the fray here on Big Government on Tuesday, here goes.

At issue is a provision buried in both the Waxman-Markey and Kerry-Boxer “global warming” bills.

I had to leave for a few hours after starting my comment on this, in which time I decided not to wage the war over how strongly we need to argue that it prima facie nullifies the rest of the respective legislative language that too many lobbyists tout was carefully crafted to provide “certainty”. Lobbyists of course tend to say things reflecting well on their defense of client interests.

What is inescapable is that this language dispels such notions of certainty. But that shouldn’t be shocking. The bills statutorily establish “global warming” causation, for every existing or new increment of GHGs (read: employers, economic activity), as well as harm caused. And they fail to preempt states and elsewhere EPA as needed, or the National Environmental Policy Act, Clean Water Act or Endangered Species Act, or every other tool that’s already being tried out as a “global warming” law. Let alone the rest of the U.S. Code. All of which is relevant to context, as we shall see.

My point, truncated, is that this provision at issue clears out any legal clutter possibly standing in the way of ongoing attempts to treat the ESA, CWA, NEPA, and in fact all other laws on the books as carbon dioxide suppression/avoidance laws. These laws, particularly ESA, are sweeping in their power even to shut down, but particularly to block anything new. That is in many ways a game-changer for the greens, is why it is being fought, and saves years in the courts fighting over whether such authority actually exists. Now, if you choose, read on.

The issue is whether this language poses a serious, substantive threat or not, with what I view as the controlling language emphasized:

‘SEC. 707. PRESIDENTIAL RESPONSE AND RECOMMENDATIONS.

(a) AGENCY ACTIONS.—The President shall direct relevant Federal agencies to use existing statutory authority to take appropriate actions identified in the reports submitted under sections 705 and 706, and to address any shortfalls identified in such reports, not later than July 1, 2015, and every 4 years thereafter.

(b) PLAN.—In the event that the Administrator or the National Academy of Sciences has concluded, in the most recent report submitted under section 705 or 706 respectively, that the United States will not achieve the necessary domestic greenhouse gas emissions reductions, or that global actions will not maintain safe global average surface temperature and atmospheric greenhouse gas concentration thresholds, the President shall, not later than July 1, 2015, and every 4 years thereafter, submit to Congress a plan identifying domestic and international actions that will achieve necessary additional greenhouse gas reductions, including any recommendations for legislative action.

So, when viewing the meaning of this provision at issue in the appropriate context in order to view its most likely meaning, we also should note two things. First, no one says that this bill if perfectly implemented would control global concentrations of greenhouse gases – which is the trigger for deciding that “more” is needed, a trigger set where it will be exceeded ab initio – or that it would have a detectable climate impact. Which is to say, going in, we know that the answer by EPA and the National Academy of Sciences (kidding, right?) will be, also ab initio, “more”. Second, bear in mind that this language at issue was important enough to be identically inserted in bills otherwise so different that they range from about 800 pages to 1,300 pages in two different houses of Congress.

Ed styles what he sees as the Examiner’s/Vitter’s questionable reading of this as follows: “If true, it would undermine the entire notion of a cap-and-trade system — and give the President dictatorial powers over energy production and manufacturing.” (emphasis in original)

This is already sufficiently detailed that I do not think the best approach is to address the conflict as whether there are “emergency powers” for the president in the provision – that was rhetorical license, I believe, as there is no such category created here, if that’s the issue for anyone and, if it is, it’s the wrong issue. Although, in practice, a command to exercise any extension of all statutory authority found in the U.S. Code (including this bill), whatever the law or program may be, in the name of attaining some carbon dioxide objective beyond U.S. regulatory control is far too similar to such a description for me to decide that such word choice is the issue.

Instead, the issue appears to be whether this provision opens a floodgate of executive activism, and/or litigation seeking to compel a reluctant executive, such that the idea that the “cap-and-trade” is anything but a floor as opposed to the ceiling and patently phony “certainty” it is sold and, sadly, accepted by many as.

That is, the issue is the objective, first-half of Ed’s framing of things, disregarding for the moment the latter characterization of the language’s possible use.

I think the answer to that is obvious. Yes.

Whether the latter characterization, as allowing (let’s say “plenary”) power over all manner of economic activity requiring federal permits, is found in this language depends upon whether the greens would sue to ensure the letter of the 707(a) authority is followed, and prevail. Now we are speculating. But I speculate yes they would, and their record and that of the courts is that they would prevail more often than not.

Remember. The 1990 Clean Air Act Amendments brought “certainty”. Then EPA started to get clever, and the greens litigious, with the New Source Review provisions. Certainty lost. I suggest that no one familiar with that progression quickly dismisses the above language as anything but a new, substantial threat.

Then we turn to the world before Massachusetts v. EPA “global warming” case which suddenly divined that, well, golly, EPA can regulate carbon dioxide as a pollutant. Compare that to the world after that opinion, which reminds and affirms that – even though the notion of covering CO2 as a “pollutant” under the CAA was debated in 1990, and rejected – once the greens and the courts get together, with a little assist from an activist administration and EPA, we know how things turn out. Far less ambiguity has been tortured by the courts, including now the Supremes (you gotta read Scalia’s Mass. V. EPA dissent), into confessing to things that previously were dismissed far more rakishly than Ed dismisses the concerns expressed by the Washington Examiner and Sen. Vitter.

This also reminds us that the authority for an agency to do something is not the same as a requirement that it do something. That is relevant to what I see as a red herring, the idea that this “shall” language does not create any new powers, be they “emergency” or otherwise. Tru, dat. Yet at the same time it also removes any potential question whether any provision in any law which an activist administration now claims is or can be used as a GHG suppression measure is now authorized to be one. Between that and creating new authority is, I suggest, a distinction without a difference.

Remember. The day this law goes into effect, atmospheric concentrations will already be beyond what the law says is acceptable. And nothing that we do could lower them. But pretty well everything we might possibly try is now authorized. EPA doesn’t even need any new authority to change the acceptable atmospheric concentration from 450 parts per million from to 350. It’s on. All laws on the books are now interpreted, consistent with legislative intent, as tools to reduce or avoid GHG emissions in the name of lowering a global concentration.

This is why I suggest context is so important to understanding the meaning of this language.

I won’t even get into possible separation of powers or delegation issues raised here (if the National Academy of Sciences says jump and how high the federal government of the United States must act? Really?). As such, my conclusion is as follows:

The first paragraph at issue tells the executive branch to use all existing laws (and all authorities in this bill) to do whatever it thinks necessary to try and lower atmospheric GHG concentrations below where they are the day the law goes into effect; this of course goes far and beyond “cap-and-trade” quotas and timetables. The second paragraph says you can also ask Congress to spell it out if you think you are lacking authority despite “(a)”. But “(b)” is a complement to, not a condition precedent for, aggressive action under “(a)”.

This language approves the idea of implementing all federal statutes as GHG suppression measures. How huge that is is impossible to overstate. There is nothing on the books today supporting that proposition. So far, even in the absence of such a sweeping declaration, we rarely see the courts declare grants of authority as insufficient for all manner of mischief under the discretion granted EPA and other agencies called “Chevron deference”. That doctrine means that we have a fairly substantial burden of proving she was arbitrary and capricious in her interpretation of authority granted her by Congress.

EPA is already trying to implement the Clean Air Act to allow it to create a carbon dioxide cap-and-trade scheme in the context of a different cap-and-trade program the Agency had concocted despite recent admonition by a federal court that the Agency cannot just make up that very authority as it sees fit. It is also proceeding with what it calls a GHG “tailoring rule” to read the number 250 in the Clean Air Act as 25,000, even though the statute is clear that 250 means 250. And so on, as those of you who’ve toiled in the increasingly troubling field of EPA regulation know all too well.

Adopting such authority as that at issue here is not smart. The provision is not an accident. Remember. No one says this bill will have a climatic impact if the carefully designed caps and timetable are followed. If this legislation is indeed about the climate to its promoters, then this provision is intended just as it reads.

This language is a license to steal. It is a serious threat. Arguing whether it creates new authority argues a distinction without a difference. It effectively makes the cap and timetable mere sideshows, but inescapably ensures that seeking the refuge of “certainty” in this bill, as more and more CEOs have told me their lobbyists promise them is available here, is a fool’s errand.

In context, the reason for ensuring this precise language appeared identically in both “cap-and-trade” bills is clear. This is to be defeated, not dismissed. Guarding against alarmism on our side is proper. We should guard against dismissing broad grants or set-ups for interpretations of authority just as vigilantly.