Origination Clause Suit For Obama Care

The Affordable Care Act is back at center stage in the courts on Thursday with yet another legal challenge that aims to derail President Obama’s massive health care reform law.

Rather than attacking the individual mandate or the so-called contraceptive mandate, this lawsuit challenges a legislative maneuver used by Senate majority leader Harry Reid (D) of Nevada to pass the bill five years ago.

The little-noticed legal battle is being waged by a conservative public interest law group, the Pacific Legal Foundation (PLF). It seeks to enforce a constitutional command: “All bills for raising revenue shall originate in the House of Representatives.”

Lawyers for the group charge that the Affordable Care Act (ACA) was first passed by the Senate and only later approved by the House in violation of the Constitution’s Origination Clause.

The Obama administration rejects the challenge. “The Supreme Court has never invalidated an Act of Congress on the basis of the Origination Clause, and this suit presents no reason to break new ground,” Justice Department Attorney Alisa Klein wrote in her brief.

The case is set for argument on Thursday at 9:30 a.m. before three judges at the federal appeals court in Washington.

If the judges agree with the Pacific Legal Foundation, the decision would invalidate the Affordable Care Act and send health care reform back to Congress for a do-over.

If the judges agree with the Obama administration that the law was properly passed, the PLF lawyers are likely to petition the US Supreme Court to examine the issue.

It is unclear how receptive the appeals court panel will be to the PLF challenge. One of the three appeals court judges assigned to the case was appointed by Bill Clinton, the other two were appointed by President Obama.

The central issue in the case is whether in the scramble to assemble enough votes in the Senate to pass the Affordable Care Act, Democratic leaders in Congress took a shortcut that the Constitution does not permit.

The Origination Clause requires that bills seeking to raise revenue from the American people emerge first from the legislative body closest to the people themselves. The requirement is designed to maximize political accountability by forcing such measures to win initial approval among lawmakers in the House, where each member must seek reelection every two years.

Senators, with their six-year terms, are more insulated from popular pressure.

In addition to requiring that all revenue raising bills originate in the House, the Constitution permits the Senate to “propose or concur with amendments as on other bills.”

Government lawyers cite that portion of the Origination Clause as support for the Reid maneuver.   

In the runup to the vote on the ACA, Senator Reid used a “shell bill” to satisfy the technical requirement that the legislation arrive from the House.

He used the Service Members Home Ownership Tax Act of 2009 as a template for the maneuver. That law, HR 3590, offered tax credits to military members who were first-time homebuyers.

Reid eliminated the entire text of the six-page law and replaced it with the 2,000-plus page bill that became the Affordable Care Act. All that remained of the Home Ownership Tax Act was the bill number, HR 3590.

After winning Senate approval, the “amended” HR 3590 was sent to the House where the Democratic majority approved it. The bill was then sent to President Obama who signed it into law in March 2010.

In defending the procedure, Ms. Klein says HR 3590 was not a bill to raise revenue, it was a bill to reform health care, and, thus, does not trigger requirements of the Origination Clause.

She also argues that HR 3590 did, in fact, originate in the House of Representatives and that it doesn’t matter that the entire substance of that House-passed bill involving tax credits was deleted and substituted with the Senate-written ACA.

Klein says there is nothing improper or even unusual about the ACA’s passage.

Replacing the text of a House-passed bill with Senate-approved text as an amendment is permissible under the Origination Clause, Klein said.

The check against abuse of this procedure, she said, is that any bill amended by the Senate must also later be approved by the House.

Klein quotes an authority no less than James Madison, a Founding Father, for support of the government’s position.

“You may safely lodge this power of amending with the senate,” Madison told the Virginia ratifying convention in 1788. “When a bill is sent with proposed amendments to the House of Representatives, if they find the alternatives defective, they are not conclusive. The House of Representatives are the judges of their propriety.”

Lawyers with the PLF reject government claims that the ACA is a health reform measure unrelated to raising revenue.

The US Supreme Court in 2010 upheld the constitutionality of the ACA as a permissible use of Congress’s taxing power, they said. The tax penalty associated with the health care mandate is expected to raise $4 billion a year in general government revenue by 2017.

The PLF lawyers also argue that replacing the entire text of HR 3590 was not a legitimate way to amend a statute seeking to raise revenue from the people.

“This was not a lawful ‘amendment’ of HR 3590 as required by the Origination Clause, because the subject matter of the one had nothing whatsoever to do with the other,” the PLF brief says.

The lawyers said the Supreme Court has held that only Senate amendments that are germane to the subject matter of the underlying House bill can avoid scrutiny under the Origination Clause.

“If the Origination Clause has any meaning, it must be to bar the Senate from creating from scratch any bills for raising revenue,” the PLF brief says.

“While the Senate may in most cases have the power to ‘gut-and-amend’ a bill by striking and replacing its entire contents, no court has ever held that the Senate can use such a procedure to originate a bill for raising revenue,” the PLF lawyers say.

The case is Sissel v. US Department of Health and Human Services.

Christian Science Monitor

Censorship And Free Market

Last week, when the NBA banned racist team owner Donald Sterling, some said: "What about free speech? Can't a guy say what he thinks anymore?"

The answer: yes, you can. But the free market may punish you. In America today, the market punishes racists aggressively.

This punishment is not "censorship." Censorship is something only governments can do. Writers complain that editors censor what they write. But that's not censorship; that's editing.

 It's fine if the NBA -- or any private group -- wants to censor speech on its own property. People who attend games or work for the NBA agreed to abide by its rules. Likewise, Fox is free to fire me if they don't like what I say. That's the market in action, reflecting preferences of owners and customers.

But it's important that government not have the power to silence us. We have lots of companies, colleges and sports leagues. If one orders us to "shut up," we can go somewhere else.

But there is only one government, and it can take our money and our freedom. All a business can do is refuse to do business with me, causing me to work with someone else. Government can forbid me to do business with anyone at all.

Of course, government never admits it's doing harm. Around the world, when government gets into the censorship business, it claims to be protecting the public. But by punishing those who criticize politicians, it's protecting itself.

That's why it's great the Founders gave America the First Amendment, a ban on government "abridging the freedom of speech."

But I wonder if today's young lawyers would approve the First Amendment if it were up for ratification now.

There is a new commandment at colleges today: "Thou shalt not hurt others with words."

Students are told not to offend. At Wake Forest University, for instance, students cannot post any flyers or messages deemed "racist, sexist, profane or derogatory."

The goal is noble: create a kinder environment. But who gets to decide how much "hurt" is permissible? Recently, a fourth-grade teacher in North Carolina was ordered to attend sensitivity training after teaching students the word "niggardly." When the power to censor lies with the people most easily offended, censorship never stops.

A few years ago, I asked law students at Seton Hall University if there should be restrictions to the First Amendment. Many were eager to ban "hate speech."

"No value comes out of hate speech," said a future lawyer. "We need to regulate flag burning ... and blasphemy," said another. One student wanted to ban political speech by corporations, and another was comfortable imprisoning people who make hunting videos.

Only when I pulled out a copy of the Bill of Rights and slowly wrote in their "exceptions" did one student finally say, "We went too far!"

So does free speech mean that we must endure hateful speech in the public square? No.

I'll fight it by publicly denouncing it, speaking against it, boycotting the speaker. That's what the NBA's employees and customers demanded, and quickly got.

What convinced me that almost all speech should be legal was the book "Kindly Inquisitors: The New Attacks on Free Thought" by Jonathan Rauch. He explains how knowledge increases through arguments.

Rauch is gay. In an updated afterward to his book, he points out how quickly the world has changed for people like him. Twenty years ago, "gay Americans were forbidden to work for government, to obtain security clearances, serve in the military ... arrested for making love, even in their own homes ... beaten and killed on the streets, entrapped and arrested by police for sport."

This changed in just two decades, he says, because there was open debate. Gay people "had no real political power, only the force of our arguments. But in a society where free exchange is the rule, that was enough."

Fight bigotry with more speech.

- John Stossel

Democrat Arrogance Is Amazing

A top Republican on the House intelligence committee slammed his Democratic colleague Sunday for suggesting fellow Democrats boycott the newly announced committee tasked with probing the Benghazi attacks. 

Rep. Peter King, R-N.Y., said doing so would be "terribly arrogant" and "wrong." 

The call for a boycott was made earlier by Rep. Adam Schiff, D-Calif., during an interview on "Fox News Sunday." He was responding to House Speaker John Boehner's announcement Friday that the House would vote on a select committee to investigate Benghazi. 

The congressman said Democrats should not give the select committee more "credibility" by joining, dismissing new evidence that Republicans have called a "smoking gun" showing the White House politicized the tragedy. 

"I think it's a colossal waste of time," said Schiff, also a member of the intelligence panel. "I don't think it makes sense, really, for Democrats to participate." 

King, speaking afterward with Fox News, said this would be a "mistake" for Democrats as it would show they "cannot defend the administration." 

"If Democrats boycott this committee, refuse to take part, the American people are going to conclude, and I think quite rightly, that they feel they have something to hide," King said. 

Schiff, who called the select committee a "tremendous red herring," acknowledged he doesn't know what Democratic leadership will decide. 

Fox News was told on Friday that the panel would be bipartisan. Schiff's comments, though, raise the prospect that his party could try to define the committee as a political vessel by sitting it out. The remarks reflect how the committee, which has not yet been formally approved, already is a political football. It would begin its investigative work in the heat of the midterm election season, poised to level damaging charges against the Obama administration at a sensitive time. 

Leading Republicans were adamant that the committee is vital to get to the bottom of what happened in the days and weeks following the Sept. 11, 2012, attack which killed four Americans, including a U.S. ambassador. 

The tipping point for those, like Boehner, who were hesitant about forming a select committee, was the release of an email that showed a White House adviser reviewing talking points for then-U.S. ambassador to the U.N. Susan Rice. The email  stressed the role of protests over an anti-Islam video -- which is the faulty explanation Rice went on to use to describe the Benghazi attack's origin on Sunday news shows after the tragedy. 

The White House maintains that email referenced protests elsewhere in the Middle East and Africa, but Sen. Kelly Ayotte, R-N.H., said that claim "doesn't pass the laugh test." 

She told "Fox News Sunday" the email shows the need for a select committee. Ayotte said there still hasn't been a clear explanation of why Rice connected the attack to a video. 

"The video story clearly came from the White House," she said, calling it a "political explanation leading up to an election." 

"This did not fit their narrative," Ayotte said. 

Sen. Lindsey Graham, R-S.C., said the document was a "messaging email" -- one that Congress never would have seen if not for a court order to release it. He said the claim that a video was to blame was a "lie." 

"It wasn't a fog of war problem they had. They created a political smokescreen," Graham told CBS' "Face the Nation." 

Former White House adviser David Plouffe, speaking on ABC's "This Week," called the committee "bogus," and suggested more attention should be paid to shoring up security at U.S. embassies.

To Fallen Heroes

Two Alaska State Troopers, who have been featured in a reality TV show, were killed while investigating a report of a person brandishing a gun in a remote village, officials said on Friday.

The two troopers killed on Thursday, Sergeant Patrick Johnson and Trooper Gabriel Rich, worked for a rural services unit and had appeared on the National Geographic Channel's reality television show "Alaska State Troopers."

State troopers have since arrested a 19-year-old man in connection with the shooting deaths in the Yukon River village of Tanana, said Department of Public safety spokeswoman Megan Peters. A community of about 250-300 people, Tanana is accessible only by plane or boat.

Alaska Governor Sean Parnell said the men had died in a "horrific act," but did not provide details on the incident, which occurred about 45 minutes by plane west of Fairbanks.

"These fallen heroes answered the call to serve and protect, and made the ultimate sacrifice, while keeping our communities safe," he said in a statement.

The two officers were among scores of state troopers who have helped raise the agency's profile for their work in Alaska's far-flung regions under unforgiving weather conditions, and sometimes, with back-up at least a day or hundreds of miles away.

The two officers had appeared on several episodes of "Alaska State Troopers," now in its fifth season. Chris Albert, a spokesman at National Geographic Channel, said any episodes featuring the fallen troopers will no longer air. A film crew was not with Johnson and Rich at the time of their deaths.

"National Geographic Channel is incredibly saddened to learn of the loss of two Alaska State Troopers," Albert said.

Second Peruvian Child Victim of Racist Attack

Hat Tip Japan Times Herald

One week after it was revealed by Consul General of Peru, Julio Cardenas, that a 13 year old Peruvian girl had been raped by 5 Japanese classmates, a second case of a Japanese racist attack has emerged in Kanazawa.

A 12 year old Peruvian boy was savagely beaten by two Japanese boys of the same age.  The Japanese boys had a history of bullying the boy at school a teacher at the boys' school said.  The teacher wishing to be unnamed said, "The two boys have been bullying the Peruvian boy for the last year.  They have been known to use racist names, trip the boy, and to write racist notes to him.  The principal had a meeting with their parents in February and things seemed to have gotten better."

Unfortunately, they had not gotten better.  Three weeks ago the two Japanese boys confronted the Peruvian as he rode his bicycle home after school.  One boy pushed him off the bike and when he tried to defend himself, the second boy came from behind and beat him on the head with an empty drink can.

A witness says they continued to beat him after he fell to the ground, and did not stop even as he bled from his nose and the wounds on his head.  They only stopped when an unidentified Japanese man stepped in.  The Japanese attackers ran off and the man called police.  Knowing where the boy lived the man then went to the boy's home to tell his mother.  The man returned with the mother just as Kanazawa police arrived.

After an initial investigation at the scene, an officer went to one of the attackers' home and talked to the accused and his mother.  The accused then took the officer to the second accused home where the officer talked with his mother.  The officer returned to the scene where an ambulance crew had arrived and began treating the victim's injuries.  The boy was taken to a hospital where he was treated, and xrays showed no serious injury his skull, so he was released.

Police the next day arrived to the victim's home with an offer from the parents of the attackers of money for the medical treatment and a small amount of apology money.  When the mother refused so she could get legal consultation, the police informed her their offer would only be made once.

An attorney procured for the woman by the Peruvian Consulate in Tokyo, Kotaro Tanaka, says that he is looking into the case going to Juvenile Court in Kanazawa so the mother can get medical bills paid and also damages for the boy's physical, mental, and emotional anguish.  Mr. Tanaka says that his office can make no other statements as the case is being reviewed by Kanazawa courts.  Tanaka and the boy's mother want attempted murder charges filed against the attackers and their parents charged with obstructing justice for making a financial offer to quiet the case.  They also want Kanazawa prefecture and city government officials to investigate methods police use.

The boy is currently being treated by a psychologist in Kanagawa and also by a therapist specializing with victims of bullying.  The Peruvian Consulate says the case became known after the mother called the Peruvian Consulate after reading a Peruvian website reporting on the rape victim in Fujinomiya, Shizuoka.

The Peruvian Consul General, Mr. Cardenas, comments, "Foreigners in Japan need to be made aware of what their rights are by the Japanese government.  There are far too many cases of violence against foreigners at the moment."  The mother reports she is afraid of reprisals from the parents of the attackers after she received legal representation.  A note in Japanese was taped to the door of her home stating that "If you do not like your treatment go back to Peru and take all the other trash with you."  Parents of the attackers deny writing the note.  Police in Kanazawa say they are still investigating and the case is ongoing.

We will update as more information comes forth.  Rev. Daniel Rea, Editor Japan Times Herald

Obama's Failed Asian Pivot

Behind the veil of reassuring Asian allies about Washington's attention, an agreement with Japan to forge ahead with the 12-nation free-trade Trans-Pacific Partnership (TPP) was easily the most important item on President Obama's tour of East Asia.

The stakes were so high and the negotiating dynamics so intense that American and Japanese trade officials were given extra time to come up with a deal until Mr. Obama had to leave Tokyo for his flight to Seoul.

Apparently, some progress was made but there was no agreement.

What happened?

Strangely enough, the Japanese did not think that their unwillingness to open up their farm and automobile sectors were the main stumbling blocks. During last Friday's press conference, Japan's Finance Minister Taro Aso said that the problem was a lack of consensus on the American side, and that any agreement was unlikely until after the mid-term Congressional elections next November.

Implicit in Tokyo's view is the Japanese refusal to make the necessary concessions because they thought Mr. Obama could not get a fast-track negotiating authority to conclude the TPP agreement covering the 12 countries (U.S., Japan, Brunei, Malaysia, Vietnam, Singapore, Australia, New Zealand, Canada, Mexico, Chile and Peru) that are estimated to account for 40 percent of world trade and for 60 percent of American exports.

I wonder whether American diplomats knew about all that before Mr. Obama went to Tokyo.

At any rate, the danger now is that the TPP and Washington's similar project of a free-trade agreement with the E.U. (Trans-Atlantic Free Trade Agreement – TAFTA) may unravel. America's forthcoming presidential election cycle will soon be in full swing, and the next U.S. administration won't be ready to take up these issues until sometime in 2017 -- assuming that Asians and Europeans were still interested.

For Japan, however, the economic consequences of forgoing structural reforms inherent in a more open trading system could be serious. The TPP was seen as an impetus to competitive markets at home and a tariff-free access for Japanese exporters to a region that is home to nearly half of the world's population.

Prospects of increasing export sales are of vital importance at a time when Japan's foreign trade is becoming a drag on economic growth. Last year, for example, the negative trade balance took 0.3 percent off the Japanese gross domestic product (GDP), and the trade deficit in the first quarter of this year nearly doubled from the year before.

Japan's domestic demand is also likely to continue to weaken. Real wages in the first two months of this year declined 1.5 percent from the year earlier, and the households' real purchasing power will be significantly eroded by stagnant wages, rapidly rising inflation and higher taxes.

Without a sustained pressure to open up its economy in a free-trade environment, it is difficult to see how the Japanese government could initiate and complete meaningful structural reforms that would go against deeply entrenched vested interests and powerful political constituencies.

It, therefore, seems that the changing structure of an opening Japanese economy – the "third arrow" of the government's economic program – is at best a very long shot. As so many times in the past, it will be much easier for Japan to rely on a tried and tested expedient of more monetary creation, weaker yen and a renewed export push.

CNBC

13 Year Old Peruvian Girl Raped By Japanese Classmates

This is sick beyond all imagination.  The Japanese lamestream media has yet to cover this.  The Keystones in Shizuoka have done squat to investigate.  The school board in Fujinomiya, Shizuoka have done all they can to block any information.  This needs to be reported.  Come on bloggers get in touch with my friend Rev. Daniel Rea at the Japan Times Herald for information.

Hat tip Japan Times Herald

A 13 year old Peruvian girl has reported to police and her mother that she has been repeatedly raped by five Japanese female class mates.

The girl, who was a member of a music club at the school in Fujinomiya, Shizuoka, says as one girl penetrated her with a "device" other girls would hold her down as two others would film and take photographs of the rape on their phones.

The girl's mother, who is a single mother, says, "My daughter has been very troubled for some time and I wanted to know why. Last Friday she let me know the reason. I was horrified." After the mother received little help from police and the school or school board, she decided to involve Peruvian Consul General, Julio Cardenas.

Consul General Cardenas has been seen at the Shizuoka Central Police building and also at the school in Fujinomiya. When I contacted the Consul I was told by an employee who wished to remain anonymous, “Today we had a telephone discussion with the mother and we found her to be in a very emotional state. We offered all our support and full cooperation as diplomats in Japan for Peru. It is totally heart breaking that could happen to any child. We must assure our citizens we will not allow any abuse or bullying of our citizens."

School officials refused to comment, as did police in Shizuoka.

Update April 25

The presence of Peruvian Consul General Julio Cardenas has motivated police in Fujinomiya, Shizuoka to confiscate the phones of the 5 Japanese girls accused of raping their Peruvian class mate.  The girl and her mother talked over an hour with Consul Cardenas.  After that , she had more details that will help in the police investigation. 

Consul Cardenas has brought the mother and daughter to Tokyo for a consultation with a Japanese lawyer, Kotaro Tanaka .

The Consul has commented that the girl and her mother have much fear and asked to be removed from Shizuoka.   This afternoon, the mother decided on action to safeguard the physical and psychological health of her family and they left Shizuoka with the Consul.

"They are now leaving Fujinomiya " said an employee at the Peruvian Consulate who asked not to be identified.  The employee added, "They only want to communicate with the Consul, an attorney, and the police . They want justice."

We will keep updating as information comes.

Update May 1

Peruvian Consul General Julio Cardenas reports that the 13 year old girl and her mother are doing well in Tokyo. Currently they are staying in a home provided by the Consul. The girl has been able to see a priest and a psychologist in Tokyo. The mother has been able to get some medical attention for hypertension.

The Consul has been working with the Shizuoka police and with the school board in Fujinomiya. The Consul could not comment on the investigation as it is ongoing. An employee at the consulate who asked to remain anonymous noted on the telephone that, "Right now we are doing all we can to care for the needs of the family. The mother has her younger son in Tokyo as well. Our main concern is to provide for their well being."

The consulate has retained legal representation with Kotaro Tanaka. The law firm would only confirm they are conducting legal representation and cooperating with the Consul and with authorities.

Questions still remain as to why the Japanese media has ignored this story. The Japan Times Herald has sent this story to all major news outlets, including English language, and has received no reply as of the posting of this update.

By Rev. Daniel Rea, Managing Editor, Japan Times Herald