Chief Justice Roberts’ Foley

A National Review Online Editorial

In today’s deeply disappointing decision on Obamacare, a majority of the Supreme Court actually got the Constitution mostly right. The Commerce Clause — the part of the Constitution that grants Congress the authority to regulate commerce among the states — does not authorize the federal government to force Americans to buy health insurance. The Court, in a 5–4 decision, refused to join all the august legal experts who insisted that of course it granted that authorization, that only yahoos and Republican partisans could possibly doubt it. It then pretended that this requirement is constitutional anyway, because it is merely an application of the taxing authority. Rarely has the maxim that the power to tax is the power to destroy been so apt, a portion of liberty being the direct object in this case.

What the Court has done is not so much to declare the mandate constitutional as to declare that it is not a mandate at all, any more than the mortgage-interest deduction in the tax code is a mandate to buy a house. Congress would almost surely have been within its constitutional powers to tax the uninsured more than the insured. Very few people doubt that it could, for example, create a tax credit for the purchase of insurance, which would have precisely that effect. But Obamacare, as written, does more than that. The law repeatedly speaks in terms of a “requirement” to buy insurance, it says that individuals “shall” buy it, and it levies a “penalty” on those who refuse. As the conservative dissent points out, these are the hallmarks of a “regulatory penalty, not a tax.”

The law as written also cuts off all federal Medicaid funds for states that decline to expand the program in the ways the lawmakers sought. A majority of the Court, including two of the liberals, found this cut-off unconstitutionally coercive on the states. The Court’s solution was not to invalidate the law or the Medicaid expansion, but to rule that only the extra federal funds devoted to the expansion could be cut off. As the dissenters rightly point out, this solution rewrites the law — and arbitrarily, since Congress could have avoided the constitutional problem in many other ways.

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Hiding Behind Executive Privilege

A National Review Online Editorial

President Barack Obama has long tried to distance himself from the “Fast and Furious” scandal at the Justice Department, which stems from a program under which Mexican drug cartels were allowed to acquire U.S. firearms that were later used against U.S. law-enforcement personnel. By invoking executive privilege to stymie congressional investigation of the case, the president has placed himself squarely in the center of it.

President Obama, who had been a bitter critic of the Bush administration’s use of executive privilege, today through his representatives protested that he is only doing what the Bush administration did before him. The same man who once accused President Bush of “hiding behind executive privilege” is now hiding behind George W. Bush.

Executive privilege serves a necessary function in our constitutional order, reinforcing the separation of powers and protecting sensitive deliberations within the executive branch, and it is especially strong when the president or his closest advisers in the White House are involved in the communication. In this case, the administration has long denied that the president was directly involved. Instead, Attorney General Eric Holder wasted everyone’s time invoking a spurious form of deliberative privilege that was completely decoupled from executive privilege. Such a privilege has no force vis-à-vis Congress. By finally invoking executive privilege yesterday, the president belatedly acknowledged that his attorney general was full of it.

Executive privilege has legitimate uses — and illegitimate uses. For instance, it is not intended to be used merely to protect the president from political embarrassment stemming from grievous errors in judgment by members of his cabinet or officers of the departments over which they preside. There is good reason to believe that in this case the privilege is being abused.

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Santorum, After Iowa

By Robert Costa, National Review Online

Des Moines, Iowa – One hot August night in Ames, Rick Santorum stood on the mat-covered basketball court at Iowa State University’s Hilton Coliseum. As pop-country songs played softly over the arena’s loudspeakers, he huddled with his wife, Karen. Few people noticed him, and his handlers, if he had any, were elsewhere. Reporters breezed past the couple, hustling to chat with big-name strategists working for Mitt Romney and Tim Pawlenty.

A couple steps away, under a cavern of Klieg lights, Sean Hannity of Fox News bantered with Michele Bachmann, the Minnesota congresswoman, who was widely expected to sweep the upcoming straw poll. Santorum, surveying the scene, scowled. As he waited for Bachmann to finish the interview, he tapped his foot, like a backup player itching to get into the game. Once again he had participated in a Republican primary debate, and once again he was a bench-warmer.

Minutes after the televised spar, here he was, in a post-debate “spin room” stuffed with political junkies, and he was ignored – an also-ran, a B-list pol waiting to appear on cable. The proud, boyish-looking former Pennsylvania senator was miffed. “This is unbelievable,” he told Karen, shaking his head. “Two questions in the beginning, and I had to wave my hand to get them.”

Five months later, on a bitterly cold January morning in central Iowa, Santorum’s summer doldrums have largely evaporated. All week, as he has greeted burly voters, many of them decked in Carhartt jackets, he has been swarmed by hundreds of media types – print reporters, network producers, camera-toting Swiss bloggers – out in force to cover every move of the man who, quite suddenly, has shaken up the GOP presidential scramble.

But Santorum’s sustained buzz in Iowa’s small diners and Pizza Ranch restaurants is not due in any way to his celebrity or his charm. His usual outfit – single-color, slightly pilled sweater-vests over a pressed white shirt – is the look of the ill-at-ease soccer dad, not the confident frontrunner. His remarks are always delivered rapid-fire, are frequently testy, and are too often focused on long-forgotten legislative yawners. Regardless, Iowans have flocked to him at the eleventh hour, partly because they’ve soured on Bachmann and Gov. Rick Perry, and partly because he is the last alternative to Mitt Romney left, the nice-enough guy who has visited all 99 counties.

That’s just fine with Santorum, who tells me that he is confident that Republicans will nominate him, a “reliable conservative,” rather than “settle” on Romney. But as Iowans prepare to caucus, Romney’s well-organized and lavishly funded campaign looms over the Pennsylvanian’s upstart effort – the Death Star to Santorum’s X-wing fighter. Whatever the outcome tonight, the former Massachusetts governor will be a formidable competitor in the months ahead, as will Texas congressman Ron Paul, who has the money and ground game to stay in the hunt. And the rest of the field, should they choose to carry on, will give Santorum headaches, knocking him as they fade.

Of course, such a scenario depends on Santorum finishing in Iowa’s top tier, near or above Paul and Romney. The latest polls hint at this happening, but in this tumultuous primary season, most every reporter is wary of trusting any last-minute temperature-taking of the conservatives among the cornfields. Still, Santorum looks poised for a good night, and should he pull it off the real question becomes: What’s next?

To get some answers, I recently spoke with John Brabender, Santorum’s own Karl Rove – the senior strategist who has been with him since his first House race in 1990, when he toppled Democrat Doug Walgren, a seven-term incumbent from the Pittsburgh suburbs. Brabender tells me to keep an eye on seven factors as the Iowa HQ closes and the plane for Manchester is fueled.

Santorum will make a play for the Granite State: “We’re not like these other campaigns that look at New Hampshire, surrender, and say ‘We can’t be competitive there; we’re going to the South.’ We think South Carolina is extremely important, and we’re the only ones who’ve won a straw poll there. But we think that to be a legitimate presidential candidate, you have to, at the very least, be willing to compete in each region of the country,” Brabender says. “And that includes the Northeast. We’re not expecting to walk into every place and feel like we have to win, but by going to New Hampshire, it lets us continue a dialogue with the country. That’s where the press is, that’s where people are paying attention, and we want to show we have national strength.”

Santorum staffers are prepping for the long haul: “We knew this day would come,” Brabender says. “There is this perception that the senator, duffel bag in hand, has been wandering around Iowa, but behind the scenes, there is a lot going on.” In coming days, many of the top Iowa field staffers will be shifted to new roles in other early primary states, taking the turnout strategies and outreach techniques they honed in Iowa to South Carolina, New Hampshire, and Florida. “We’re not an expensive campaign, not a huge-bureaucracy campaign,” so there is flexibility in terms of personnel, he says. Regarding payroll, “we don’t need to bring in the same amount as other campaigns.”

New hires will begin in the finance department: “We’re probably going to make a few small hires,” Brabender says, and they will mostly be money raisers, “due to the uptick in donations that has really picked up in recent weeks.” Beyond that, “you’re not going to see some wholesale expansion. The biggest mistake we think we could make right now is simply trying to become the other candidates, running the same type of model that’s outdated. You can be sure we’re not going to do that.”

Santorum, more than ever, is at ease: Even Santorum’s confidants acknowledge that he can become frustrated and flustered at times. Republicans saw this side of him during the early stages of the primary, when he would complain about the lack of attention. Now that he’s ticked up in the polls and spent countless days crisscrossing Iowa, he’s “in the zone,” Brabender says. The candidate is peaking at the right moment. “He’s hitting his stride,” Brabender tells me. “The crowds are getting bigger, and when that happens, he feeds off of it. More than the typical candidate, he finds a way to ride that kind of energy, and you see him doing that right now.”

Santorum is comfortable as an outsider: When he lost his 2006 reelection bid by 18 points to lackluster Democrat Bob Casey Jr., Santorum’s political career nearly ended. He went from being a member of the Senate GOP leadership to a political nobody. Five years later, as he surges in the polls, Brabender says that loss is shaping Santorum’s perspective in innumerable ways, but most importantly in how it buoys his ability to speak about issues as both a former insider and a Beltway outsider. “He thinks it was actually beneficial for him to get out of Washington for a while,” Brabender. “It turned out to be a huge benefit as he began to look at a presidential run, since he came into this with fresh eyes, not as someone in a position of power.”

The family is “all in” after Iowa: Santorum’s large, growing family is slowly coming back into the spotlight, Brabender says, and his wife and children joined him on the trail in Iowa on Monday and will be with him all day today. In coming months, look for the older Santorum children to continue to show up at their father’s side, supporting him as he stumps. “Their son, John, delayed going to college this year to be part of the campaign, and their daughter Elizabeth is taking a year off from college to be part of the campaign, playing significant roles.”

The inner circle remains the same: “It’s not a big group,” Brabender says. “Hogan Gidley works at my firm, and he’s the communications director. He directs a small communications team. You have Mike Biundo, who’s from New Hampshire; he’s the campaign manager. You have Nadine Maenza, who’s the finance director and who’s been with the senator since the 1990s. There is also Mark Rodgers, Santorum’s former chief of staff, who works in a senior advisory role. And unlike many campaigns, we keep Rick and Karen as part of the strategic team.” There is also, he claims, little drama. “So many of us have been with Rick for many years, and there’s nothing like you’ve read on Politico about other campaigns and their infighting. We mostly spend our time looking over historical polling data for Santorum, seeing what we can apply to this race.”

“We all started together in Pennsylvania,” Brabender says, commenting on Santorum’s senior team. “And just as Rick grew, we all grew in sophistication, but none of us has ever lost our roots. At 4:15 p.m. on Sunday, you can be sure that we were all finding a place to watch the Steelers game.” Later tonight, they’ll all be tuned to the same channel, this time watching the caucus returns. On Sunday, the Steelers beat the Cleveland Browns. In a few hours, Brabender expects to be cheering once again.

– Robert Costa is a political reporter for National Review.

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Herman Cain Reassessing His Presidential Bid

Bayshore Tea Party Group Standing By Their Man

GOP presidential hopeful Herman Cain is reassessing his candidacy in the wake of allegations of a 13 year extra-marital affair, according to a story broken by National Review Online. NRO reports that they had a writer on Cain’s five minute conference call with his senior staff wherein he discussed his campaign’s latest setback.

Cain has denied the affair, as he has denied allegations of sexual harassment while he was the CEO of the National Restaurant Association.

Cain attempted shore up his weak foreign policy credentials by issuing his denials in German, “nine, nine, nine.”

Locally, Bayshore Tea Party Group leader Barbara Gonzalez told Politickernj that her group continues to support Cain, “Until they can prove something, we continue to support him….it’s a smear campaign….no one is buying it.”

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Exit Barney Frank

A National Review Online Editorial

Rep. Barney Frank will be remembered for three things: First, he was not only the first openly gay member of Congress but the first involved in a gay-prostitution scandal. Second, he said, “I do not want the same kind of focus on safety and soundness” regarding Fannie Mae and Freddie Mac as exercised with regard to other government-affiliated agencies, preferring, as he memorably put  it, to “roll the dice a little bit.” Third, he was co-author of the Frank-Dodd financial-reform legislation. Which is to say, Representative Frank will be remembered as an embarrassment, a reckless gambler, and a legislative malefactor.

Representative Frank was not much of a crusader on gay-rights issues, which was just as well. On the substance of those issues, he was on the wrong side. As a symbol, he was toxic — a powerful politician whose homosexual orientation was hardly the most remarkable feature of his private life, which included involvement with a gay hustler and convicted drug dealer whom the congressman was paying for sex, and who ended up running a prostitution operation out of the congressman’s home. Representative Frank was reprimanded by the House for making misleading statements to a Virginia prosecutor on behalf of the prostitute — whom the congressman eventually put on his own payroll — and for having fixed dozens of parking tickets on his behalf. Americans are broadly tolerant of homosexuality; they are rightly less tolerant of prostitution and political corruption. The congressman’s self-pitying account of the episode made the bad situation worse.

But though his private life spilled over into his public duties, it is as a champion of a different kind of pay-for-play operation, Fannie Mae and Freddie Mac, that the congressman did the most damage to the country. The government-backed mortgage giants were at the center of the housing bubble and the subsequent financial crisis. Representative Frank was a stalwart defender of the organizations, even after the government uncovered “extensive” fraud at Fannie Mae and found that Freddie Mac had illegally channeled funds to its political benefactors. Again, Representative Frank’s personal life intruded into the story: He was sexually involved with a Fannie Mae executive during a time when he was voting on laws affecting the organization. The final cost of the Fannie/Freddie bailouts will run into the hundreds of billions of dollars, and the real damage that the organizations did to the U.S. economy — and the world economy, for that matter — probably is incalculable.

In response to a financial crisis in which he was a significant figure, Representative Frank helped to craft a financial-reform law that bears his name. The drafting of Dodd-Frank began as a punitive measure, evolved into a dispensary of political favors, and in the end did little or nothing to address the problems that led to the 2008–09 crisis or to prevent similar crises in the future. Which means that we may have Barney Frank partly to thank not only for the last financial crisis but for the next one.

From his relatively petty transgressions related to his personal life to his more consequential role in enabling Fannie and Freddie, Representative Frank personifies a great deal of what is wrong with American public life. Though a highly intelligent man, he made the wrong decisions at every turn, and compounded his policy errors with the petty and vindictive style of his politics. Republicans will not miss him. Neither should his Democratic colleagues, his constituents, or the American public that will be paying off the cost of his errors and those of his allies, with interest, for a great many years. We hope that he will find in the obscurity of retirement the grace and wisdom that eluded him as an elected official, but we do not assume that it will be so.

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