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IPAB Is rotten, But Is the Challenge to It Not Yet Ripe? (And Should It Be?)


At my own blog site, I analyze at probably too great a length a disappointing decision from the Ninth Circuit Court of Appeals (is that redundant — “disappointing” and “Ninth Circuit”?) last week in which a Goldwater Institute–led challenge to Obamacare’s horrid Independent Payment Advisory Board was found not yet ripe for adjudication. The judges asserted (in so many words) that the doctors on whose behalf Goldwater was acting have not yet been directly affected by any rule or decision promulgated by IPAB. But from the Department of Silver Linings: Goldwater might appeal that holding to the Supreme Court, or it might well just wait to re-file the case when the harm to its clients is more obviously concrete, but it has not lost the case on the merits. Nor should it. IPAB is unconstitutional in almost too many ways to count, as I explained here at NRO earlier this year. 

I write here now, though, not to rehash those arguments, but to bring to the attention of legal eagles among NRO’s readership (and among its erudite, er, writership) a legal issue I have been wanting to explore for quite some time now, an issue at the heart of last week’s ruling. As I explained at my site, perhaps inelegantly:

I am hereby calling for conservative legal scholars to conduct a much fuller, more comprehensive analysis of  the federal courts’ current standards for legal “standing” and “jurisdiction,” including the concept of ripeness. While there are good reasons why only an “actual controversy” should be adjudicated, I believe the courts have taken this restriction too far. While courts have made it fairly easy for people to contest violations of enumerated rights, such as those in the First Amendment, the doctrines on standing and jurisdiction make it very difficult for anybody even to get into court to protest violations of the most important constitutional provisions of all — which are those that set up the structural protections of liberty inherent in the multitudinous provisions together known colloquially as the “separation of powers” (both vertically and horizontally) and the “checks and balances” that guard against too much power being concentrated in any one set of hands.

Some things the court dismisses as involving “political questions” are really questions that the ordinary give-and-take of politics is not equipped to adjudicate — because if one branch of government encroaches on the constitutional turf of another, the damage done to the Constitution”s structural integrity can be vast, long before an individual citizen can show that he has been directly harmed by it.

So how about it? Am I on to something? Is there a legal argument to be made that the courts have taken a valuable doctrine too far? Obviously, this has bearing on the House’s lawsuit, led by Speaker John Boehner, against the president. It also showed itself in the Fourth Circuit’s dismissal of the case against Obamacare brought by Virginia’s then attorney general Ken Cuccinelli, specifically for supposed lack of standing. Those are just two of a growing number of examples of the courts’ hyper-restrictiveness on these grounds.

Again, note that I am certainly not arguing that standing and jurisdiction aren’t important, legitimate hurdles. They are. I merely assert that these hurdles have been subtly but steadily raised, and now over-raised, through the years. Maybe some law-related think tanks can take up this question and, through time, make arguments strong enough to eventually help effect a correction.


Key Updates in the Michael Brown Case in Ferguson


Ferguson police chief Tom Jackson just wrapped up a quick appearance where he named the officer involved in the shooting of Michael Brown. The officer is Darren Wilson, a six-year veteran of the force who, according to Jackson, has a clean disciplinary record.

More important, however, Jackson released new information that Brown is the suspect in a robbery of a convenience store that occurred minutes before Brown’s deadly encounter with the police, and that Wilson was responding to that 9/11 call. From the St. Louis Post-Dispatch:

At 11:51 a.m. a 911 caller reported a strongarm robbery at a convenience store, Jackson said. He did not name the store. A brief description went out a minute later.

A different officer went to the convenience store and a more detailed description went out a short time later. The robbery suspect was said to be heading toward the QuikTrip in Ferguson.

Wilson left the sick call and encountered Michael Brown at 12:01 p.m. Sometime between then and 12:04 p.m., when a second officer arrived at the scene, Brown was fatally shot by Wilson.

Jackson then handed out a packet of information on the robbery to the reporters on the scene. The Huffington Post’s Ryan Reilly tweeted out photos of the report that names Brown as the primary suspect in the earlier robbery, as well as stills from the video surveillance cameras:




On August 11, in my initial post on Ferguson, I included a video tweeted by St. Louis Alderman Antonio French of an alleged eyewitness who said Brown had been involved in a robbery earlier that day. (The report above accuses Brown of stealing cigars. In the video, the person speaking said Brown made off with three boxes of “rollos,” which I thought in my initial post was a reference to the candy.) 

French tweeted a few minutes ago that this video “seems to line up” with the just released version of events from the police:

This means the Brown case is now about the police use of force in arresting a robbery suspect and not merely about racial profiling or police harassment of African-Americans. 

Exit question: How much longer can the MSM ignore this video? A video that would have changed the entire narrative of the past three days.


Ferguson and the Unwritten Contract between Police and the Community


A few thoughts on the recent events in Ferguson, Mo. So far we have only been given the merest details about the incident, and most of what we know — or think we know — has been provided by a young man who says he was walking with Brown when they were confronted by the officer. They were walking down the middle of the street, he says, when the officer drove up and told them to “get the f*** out of the street.” They didn’t, and moments later Michael Brown was dead.

I recall a television interview with Columbia University professor John McWhorter (it may have been on the Charlie Rose Show; I couldn’t find a reference to it online) in which he described being stopped by police in Oakland, Calif. McWhorter was walking across a street and jaywalked in front of a police car, an offense so trifling he was surprised when the officer stopped him. I can’t recall all of the details, but while McWhorter was upset by the experience, he came to understand it later. 

He described the unwritten contract between the police and the community in places like Oakland, where one would think a petty affront to the commonweal like jaywalking should hardly warrant a police officer’s attention. But this unwritten contract, as McWhorter described it, places demands on both the police and the community. Under the contract, police officers ignore minor infractions like jaywalking, but they expect the community not to flout the law, even a minor one, in their presence. Thus when McWhorter jaywalked, the officer took it as a violation of the contract and a challenge, one that could not be ignored.

I spent many years as a cop in South-Central Los Angeles, and this contract exists there as it does in Oakland and any other high-crime area you could name. If I drove my black-and-white down Central Avenue and saw a man walking against a red light, he knew that once he saw me, the contract demanded that he run the rest of the way, or at least increase the speed of his walking as an acknowledgement that he was breaking the law and, at least in theory, was deserving of a ticket. My end of the contract was to drive on, perhaps with a wave to the man to demonstrate that I appreciated his effort to honor the contract. These types of interactions take place thousands of times a day in cities across the country, including, I suspect, in Ferguson.

When the Ferguson officer drove onto the block and saw Michael Brown and his friend walking down the middle of the street, he expected them to move to the sidewalk as soon as they realized a police car was approaching. When they didn’t, the officer took it as a violation of the contract, even a challenge. Which in a way it was.

What happened after that has yet to be fully revealed, but if it’s true that Michael Brown was 35 feet away from the officer when he was shot, I can’t imagine a set of facts that would justify it. 

Still, even if the shooting is as unjustified as some are claiming, how this translates into a license to pillage the neighborhood escapes me.

— “Jack Dunphy” is the pseudonym of a police officer in Southern California.

Web Briefing: August 29, 2014

The Gift of a Great Movie


Much has been said and written about the new movie The Giver, including by yours truly. But I want to stress something, because it is the beauty of the movie: No offense to the president, but I did not think of Barack Obama a single time during the movie. I didn’t walk away from it thinking “the Hobby Lobby victory lap movie” or “a pro-life movie” in a movement kind of way – though it would be hard to walk away from it and not celebrate freedom and life.

The magic of The Giver is that folks from different political and cultural stripes came together and made something great – an attractive, gripping, compelling movie that leaves you reflecting on the human condition — grateful for life, liberty, joy, faith, and family.

This movie is extraordinary because you can go with anyone to see it, whatever his political or religious beliefs. It’s an excellent movie! And one you don’t have to give away free tickets to at church to make a success. It’s got some great messages in it — but not because someone poll-tested Family Research Council or Heritage Foundation talking points to write the script. 

Yes, next time John J. Miller writes a most conservative movies list, I expect it to be at the top, but that’s not because someone set out to make a conservative movie. A beautiful movie was made about truth. That still exists and it’s attractive. And The Giver gives the gift of a lovely reminder.  


Last Call: NRI Seeks Applicants for Inaugural Class of Dallas Fellows


After the successful expansion of National Review Institute’s Regional Fellows program to New York City earlier this year, it is growing again.

In September, we will launch the NRI Dallas Fellows using the same model as our New York and Washington programs. We are looking for 20 mid-career professionals in the Dallas area who are interested in learning more about the foundations of conservative thought. An ideal candidate has at least ten years of full-time work experience and does not currently work in politics or policy, but all are welcome to apply.

The goal of NRI’s Regional Fellows program is to introduce succeeding generations to the conservative movement’s most important thinkers, institutions, and writings, and to build networks of talented, like-minded individuals who can assist one another professionally and personally for years to come.

You can find more information about the program and how to apply here. The deadline to apply is Friday, August 15 by 6:00 p.m. ET.​

Friday links


Picking your soulmate and picking the cleanest toilet at a public event in the fewest tries have the same optimal solution.

Having frequent diarrhea as a child shapes your adult mate choice.

If the French monarchy were restored, this guy would become King Louis XX of France.

From the archives: ten things dogs hate about humans.

The never-ending conundrums of 19th-century classical physics brainteasers.

During WWI, the War Department sent American artists to Europe. The Smithsonian recently digitized this artwork from the front lines, which has gone largely unseen for decades. 

ICYMI, Tuesday’s links are here and include lots of Schrödinger’s cat stuff, the science of spiders on drugs, and medieval knights vs. modern troops.

Krauthammer’s Take: Immigration Executive Action a ‘Loser from Beginning to End for Obama’


If Republicans are smart enough not to repeat 1998, President Obama’s proposed executive action legalizing potentially millions of illegal immigrants would a “a loser from beginning to end for Obama,” says Charles Krauthammer.

The “calculation” that this executive action could be “impeachment bait,” “a way to make the Republicans do the one thing that could save [the Democrats] in this election,” seems to have failed, Krauthammer says — both Speaker John Boehner and house majority leader Kevin McCarthy have said that impeachment is “off the table.”

Moreover, “to go big right now is certainly going to hurt Democrats in the states where it counts, which [are] Alaska, Arkansas, North Carolina, and Louisiana, where the Democrats are hanging on by a thread,” Krauthammer says.

“I do think that if the president were to legalize 5 million illegal immigrants by fiat, that is a violation of the Constitution that I think would reach the level of impeachable,” Krauthammer noted. “Nonetheless, it would be insane for Republicans to go ahead and do that.”

Maliki Resigns


The Iraqi prime minister, Nouri al-Maliki, resigned today, giving up his resistance to the nomination of a new leader for the country, Haider al-Abadi, a member of Maliki’s Shiite party. Nothing changes immediately: Maliki remains the country’s chief executive and commander-in-chief for 30 days or until Abadi has formed a new government. Maliki and his government have been heavily criticized for the current crisis facing the country — the rise of the Islamic State, a successor to the once essentially vanguished Al-Qaeda in Iraq, and the Iraqi military’s weak response to the problem. (Maliki has exercised close control over the country’s army.)

Abadi was appointed as prime minister by the country’s new Kurdish president on Sunday — a new leader is a necessary but very far from sufficient step in building an Iraqi government, military, and civil society that can defeat the Islamist threat. As The Economist put it, “Mr Abadi is viewed by Iraqis as less divisive than Mr Maliki—but that is a low bar.”

Mann v. National Review—More Amici


Yesterday we updated you about a significant amicus curiae brief filed in support of NR et al. in our legal defense against Penn State professor Michael Mann’s lawsuit. Today we have a few more briefs to share, no less significant.

First is the “Brief of Amici Curiae Newsmax Media, Inc., Free Beacon, LLC, the Foundation for Cultural Review, the Daily Caller, LLC, PJ Media, LLC, and the Electronic Frontier Foundation,” a gathering of largely Internet-based publishers who are concerned that “the injury to wide-open debate on matters of intense public interest is acute in this case, where the statements at issue are core First Amendment-protected speech.”

Second is the District of Columbia’s brief in defense of its anti-SLAPP statute (which was enacted to protect publications from expensive and litigious legal actions that have the net effect of limiting free speech).

And finally there is the “Brief Amici Curiae of the Cato Institute, Reason Foundation, Individual Rights Foundation, and Goldwater Institute Supporting Appellants and Reversal.” Their motivation:

Amici are concerned with the implications of the lower court’s decision, which chills speech at the juncture of political commentary and academic debate. Declaring “truth” or “falsity” in the midst of an ongoing scientific dispute not only infringes the freedom of speech on important matters of public policy, it threatens academic independence and chills scientific progress. Amici believe that their public policy experience will assist this Court in its consideration of this case. ​

We are grateful for these friends in our fight to protect the First Amendment rights of National Review, and of all institutions and individuals. By the way, if you would like to help defray our legal costs (we have insurance, but it doesn’t nearly cover our bills in this matter), please consider doing so here.

Redskins File Lawsuit to Keep Trademark of Name


The Washington Redskins are taking legal action to overturn a U.S. Patent and Trademark Office ruling that stripped the team of a number of trademark registrations. In June, the agency’s Trademark Trial and Appeal Board canceled the team’s trademarks of its name and logo because they were ruled “disparaging.”

On Thursday, the team filed a lawsuit in a federal district court in Virginia against the five American Indians who initially brought the issue to the USPTO. The team claims the board “ignored both federal case law and the weight of the evidence,” in the process raising “serious constitutional issues.”

The Washington Post reports that the team can introduce new evidence in defense of the name by filing in federal district court in Virginia, rather than appeals court in Washington, D.C. If it had filed in D.C., the case would have been limited to the evidence used in the board’s decision, some of which is decades old.

Despite the June decision, the team still currently holds the trademark over the name and logo while the case makes its way through the legal process.

The End of 2,000 Years: Aiding the Iraqi Church in Need


100,00 people from more than 13 villages are on the heart of and in the prayers of and driving the pleas for stepped up international help from Chaldean Patriarch Louis Raphael Sako for more help for the families who have fled from the Nineveh plains in northern Iraq. “From a spiritual and humanitarian point of view the present circumstances of these exiled people are not acceptable, while the suffering increases and the international efforts to alleviate their pain are insufficient,” he wrote earlier this week.

The patriarch added: “It saddens me to think of them choosing migration as a viable option. If the situation does not change the whole world will be called to take responsibility for the slow genocide of a genuine component of Iraqi society and of loosing its heritage and age old culture. ISIS tries to erase all traces.”

Responding to that grim picture, Aid to the Church in Need works to answer that cry and meet the needs of “the suffering Church,” which is quite acute among these displaced families. Edward Clancy, director of outreach and evangelization there, working out of their Brooklyn office, talks about what the patriarch refers to as a still “developing tragedy” and how Aid to the Church in Need is trying to meet the needs of the suffering.


Q: What is the latest you’re hearing from Iraq?

A: The situation in Erbil appears somewhat stable, with the U.S. having made an apparent commitment to help the Kurds defend the city, which is now home to many thousands of Iraqi Christians who have fled Mosul and the Nineveh plains. However, Chaldean Patriarch Louis Raphael Sako is still talking about a “developing tragedy” of 100,000 Christians who, driven from the Nineveh plains, have fled north with no clear place to go or reliable humanitarian support, let alone military protection. Echoing similar calls by the Vatican, the patriarch is calling on the U.S., E.U., and U.N. to “clear the Nineveh plain from all the elements of Jihadist Warriors and help these displaced families return to their ancestral villages and reconstitute their lives, so that they can conserve and practice their religion, culture and traditions.” The biggest concern of the patriarch and other local Church leaders is that those Christians who can will opt to migrate and never return. One suggestion the patriarch has made is that some internally displaced Christians could find shelter in Baghdad, which poses its own challenges.


Q: The number of people Louis Raphael Sako, the Chaldean Patriarch of Babylon, has reported as displaced is hard to inconceivable — “seventy thousand displaced Christians in Ankawa,” 60,000 from Dohuk. How does he know this? Where are these people? Who is helping them? How are they living?

A: With the situation in flux and changing by the day, it is impossible to have accurate figures. But the patriarch has consistently used the number 100,000 for the refugees still on the move. The patriarch and his fellow prelates are relying on a long history of living and working in the area. What there is no doubt about is that the Iraqi Christian population has sharply declined in the past decade from a peak of 1 million to approximately 150,000 today.


Q: There are scattered reports of people dying of starvation. Who? Where? How can they be helped?

A: On this front, too, there are no firm numbers. The U.S. State Department and United Nations, as well as, on a smaller scale, Catholic Relief Services and other Catholic agencies, including Aid to the Church in Need, are responding by providing emergency supplies to all those at risk, Christians, Yazidis, and Muslims. In recent days, the Iraqi government itself has sprung into action. But it is clear that the needs are enormous and will only continue to grow.


Q: Crucifixions. Beheadings. How to know what’s true? How to soberly and urgently navigate the news, such that it is?

A: Patriarch Sako has been adamant. He said the other day: “No decapitations.” He did confirm mass killing by ISIS of Yazidis. There is a proliferation of horrible images on the web, many of them claiming beheadings and crucifixions, but we must be very careful in lending credibility to such claims. That said, what ISIS is doing is bad enough! And the patriarch has also warned of a “genocide” of the Iraqi Christians.


Q: What are the stories you wish would get out/be heard?

A: Despite suffering systematic persecution and violence over its 19 centuries of existence, the Christian community in Iraq — which is known to be a disinterested mediator seeking the good of the country and all its inhabitants — is a vital bridge, able to play a constructive role in facilitating negotiations between warring parties embroiled in sectarian conflicts, as well as facilitating relations with the international community.

Notwithstanding its indispensable role as the connective tissue of Iraqi society, the Christian community, because of the loss of security and growth of sectarianism, has become a shadow of its former self. ACN fears that, without a political solution that guarantees security, the ongoing violence in Iraq is hastening the end of nearly 2,000 years of a vital Christian presence in Iraq.

And what is true of the role of Christians in Iraq similarly applies in Syria, Egypt, Lebanon, and elsewhere.


Q: What does a director of director of evangelization and outreach at Aid in the Church in Need do? 

A: I have been with ACNUSA for the past 15 years and am responsible for developing and maintaining the relationship between ACNUSA and the U.S. Catholic hierarchy as well as the network of 18,000-plus parishes in the country. A key aspect of this role is keeping ACNUSA constituents informed about the most urgent needs and strategic priorities — which currently are focused on the persecuted and suffering Christian communities in Iraq and Syria.


Q: What is Aid for the Church in Need’s place in and around Iraq? How are you maneuvering in and around the country? How are you meeting needs now? Is this kind of situation exactly why Aid to the Church in Need exists?

A: Aid to the Church in Need has been supporting the Church and Christians in Iraq and Syria for decades. Our support has been to fortify the Catholic Church and to keep her ministry alive, so that it might provide the educational, spiritual, community and sacramental support needed. We fund projects through the bishops and the local Church: those who know best what their people need and what will have the most lasting impact.

While there are many agencies that do wonderful work when there is a crisis, Aid to the Church in Need differs in that we are committed to keeping the Church alive in these countries and around the world before, during, and after the crisis has faded from memory. The institution of the Catholic Church is uniquely capable, and has actively improved the lives of all people wherever she is present.

By supporting Aid to the Church in Need, donors help the Church to keep the faith alive and offer hope for today and for many years to come.


Q: How did the situation in Iraq get this bad?

A: The vacuum of leadership in Iraq — and the relative neglect of the international community — allowed the rise of radical jihadist forces to go unchecked for so long.


Q: How are you all thinking of ISIS and its threat?

A: ISIS presents an absolute nightmare — and not just for Christians. They will stop at nothing, literally. Ironically, not all that long ago Christian leadership in the Holy Land urged caution in using the word “persecution” in speaking of Christians. With this new terrorist force on the scene there clearly is outright persecution of Christians and other vulnerable minorities 


Q:  What, if anything, can an American reading this do for a Christian fleeing Iraq?

A: Of course, we — like other agencies active in the region — are actively campaigning to raise money. But a key factor is for Americans to become more aware of what is going on today, and to better understand the history of the region and, again, the importance of the Christian presence as a moderating and edifying presence in Iraq and throughout the Middle East.

Of Course Obama Has Authority to Strike Iraq Without Congress


President Barack Obama’s decision to launch air strikes against the Islamic State’s advances in the Kurdish-occupied region in northern Iraq raises the question of the legality of the president’s actions.

In my opinion, the president does not have to go back to Congress for legal authority to carry out strikes against the Islamic State. The president’s commander-in-chief authority gives him the power to send the military into combat abroad, and presidents have done since the beginning of the Republic, as I have argued in one of my first law-review article as a professor. (For those interested in a fuller treatment, here is a free download of a journal article summarizing the argument and responding to critics, who believe that the Declare War Clause requires Congress to turn its key launching the missiles first.)

But even if Congress’s declare-war power requires the president to get authorization before he can use force, the 2002 authorization to use military force against Iraq is still on the books and provides the president with continuing legal support. The AUMF is not just limited to removing Saddam Hussein. It states:

The President is authorized to use the Armed Forces of the United States as he determines to be necessary and appropriate in order to (1) defend the national security of the United States against the continuing threat posed by Iraq; and (2) enforce all relevant United Nations Security Council resolutions regarding Iraq.

I am happy to confess that I had a hand in writing the 2002 AUMF as an attorney in the Justice Department. As an aside, compare our work to that of the Obama Justice Department, which reportedly was asking Congress to repeal the AUMF a few months ago and would have deprived the White House of that legal authority for its air strikes this week!

The disintegration of Iraq and the capture of significant portions of its oil resources, military stockpiles, territory, and population by an al-Qaeda offshoot poses a serious threat to American national security. In Iraq, the Islamic State has acquired sophisticated military weapons (included the M-1 Abrams, the best battle tank in the world) and will serve as a recruiting and training ground for every would-be jihadist in the region. It has declared its intention to attack the United States. Look at what a small group of al Qaeda terrorists were able to do in the 1990s in Afghanistan, which had a primitive economy and far fewer resources and population.

There are also important U.N. resolutions about maintaining the territorial integrity and political independence in Iraq and ending its threat to regional stability. I outlined those back in 2003 and how they worked within the 2002 AUMF.  (For those interested in a free download of that paper, see here.) 

The practical limitation on the president’s commander-in-chief power is Congress’s power over the purse and its sole right to raise and support the military. Without Congress’s support, President Obama cannot long afford the costs of extended air operations over Iraq. Even in the war against Serbia, which was waged wholly from the air, President Clinton had to go to Congress for more funding. That gives Congress the opportunity to vote to keep hostilities going or to end the operation (by simply doing nothing). Despite the muted complaints of Democratic isolationists and Rand Paul supporters, the majority in Congress (I believe) want the president to be more aggressive in Iraq, not less, and funding should be readily approved. No constitutional conflict will result.

Brave Rights Lawyer ‘Utterly Destroyed’ After Three Years in Chinese Prison


Rights lawyer Gao Zhisheng, who had the remarkable courage to defend Christians, Falun Gong adherents, and others oppressed by the Chinese government, has been released from prison. But his fate remains uncertain, and his condition is heartbreaking, according to a new report from BBC:

Mr Gao – who was released from prison last week – was emotionless, “basically unintelligible” and had lost teeth through malnutrition, [his lawyer Jared] Gensher said.

… He is alleged to have suffered physical and psychological abuse in jail.

As well as losing many teeth, Mr Gao’s daily ration of cabbage and a single slice of bread had caused him to lose 20 kg in weight, according to a statement by US-based advocacy group, Freedom Now.

The group said he had been confined to a cramped cell, with very little light, and had been largely deprived of human contact until his release.

Freedom Now said Mr Gao’s wife, Geng He, had spoken to her husband and was “completely devastated” by what the Chinese government had done to him.

“The only thing I feared more than him being killed was his suffering relentless and horrific torture and being kept alive,” she is quoted as saying.

… Mr Gensher said Mr Gao had been “in an incredibly bad way”.

“He is able to say a few words here and there and answering questions in a few words, describing what he went through,” he said.

“But he’s not capable of holding any conversation and there are many occasions where he’s just literally just muttering to himself.”

Read more here.

Take Someone to The Giver


My colleagues Kathryn Lopez and John Miller have written in these parts of late to say good things about The Giver, Lois Lowry’s popular dystopian novel that hits American silver screens tomorrow, and I’d like to add my two cents. I’ll state my bias: The movie is produced by Walden Media, founded by Micheal Flaherty, my former NR colleague, a dear friend who is ably assisted by his better-looking brother Chip. Even though watching from the cheering section, I think, after seeing an advance screening, what I had hoped I would: that The Giver is an important and excellent movie. It scores well in every aspect: There is a consistent stylishness, it’s well-edited and visually beautiful from start to finish, the acting is solid, the script is tight, the movie . . . moves (there are no lulls), and the story — the message — is compelling, a lesson taught artfully, without crayons, without ham-hands, without the two-by-four head-bashing you get in your typical Hollywood-produced sermon. It’s worth taking the family to the Multiplex.

 The Giver is the kind of movie that conservatives — those who are yearning for a greater role and voice in the entertainment industry, so that our beliefs can have a greater impact and validation in the culture — should be cheering. It strikes a balance between subtlety and overtness, and serves up serious themes palatably via well-done art. In particular, it addresses two themes common to dystopian novels — the uniqueness and beauty and sacredness of the individual, and its evil sibling, the aggrandized, controlling, pill-popping dehumanizing state. Even though millions have read the novel, I won’t give the plot away, but I have to mention that The Giver deals profoundly with children, so the life issues, particularly infanticide, are immediately confronted. But — in a way that is neither preachy nor polemical, and therefore, impactful and persuasive. The Giver is not a pro-life movie. But it is a movie that is pro-life. And that is a good thing, given the realities of American culture (popular and moral), and the dearth of “our” slice of the Hollywood pie.

 Kudos to the Brothers Flaherty for making a film that is important and entertaining, about which anyone can say, “now that was a good movie,” a movie that is equal in its medium to Lowry’s award-winning and powerful book.​

If Obama Takes Further Executive Action on Immigration, He Should Expect To Be Sued


Rumors abound that President Obama is soon to issue an executive order granting millions of illegal aliens some kind of legal status in the country and creating a permit system that would allow them to work. Current federal immigration law requires the deportation of these aliens and creates no work permit program. Most people admit that Congress has delegated no authority to the president to create classes of legal and illegal aliens — that is Congress’s job, which it has carried out by statute. I think the order is unconstitutional, but unlike previous examples of Obama’s failure to enforce the laws, is open to challenge in court.

The president has the constitutional obligation to “take care that the laws be faithfully executed” (Article II, Section 3). That includes the discretion to allocate enforcement resources to best execute federal law, because the government does not have the power to enforce all laws all the time in all cases. Presidents can and should choose to throw the FBI and federal prosecutors, for example, at the highest-profile criminals who cause the most harm to society. But prosecutorial discretion does not include the power to refuse to enforce an entire law’s application to millions of cases because of simple disagreement with the policy of the law. The only time that the president can refuse to enforce a law is if the law itself is unconstitutional (as when President Jefferson refused to enforce the Sedition Act, which made criticism of the government a crime). Here, the president is refusing to enforce a law not because it is unconstitutional, but because he wants Congress to change its definition of illegal aliens and the circumstances for deportation. But it will be difficult, if not impossible, to challenge President Obama’s possible immigration order because the courts have generally refused to entertain lawsuits that seek to force the executive branch to prosecute defendants if it does not wish to.

But if President Obama seeks to issue an executive order that allows illegal immigrants to work in the United States with a permit, he will come into more direct conflict with Congress in an area — immigration — where the Constitution has long been understood to grant exclusive authority to the legislature. Federal immigration law imposes sanctions on employers who hire unauthorized aliens as workers. Private firms that hire illegal aliens will be exposing themselves to future prosecution, even if for now President Obama promises not to pursue them. These firms may have trouble doing business — operating in violation of federal law may cause problems for raising money, getting loans, and dealing with other elements of the legal system. Would a bank issue a loan to a construction company that is in violation of safety laws and codes, even if the company says that it’s been promised those codes won’t be enforced against them by the local inspector? A work-permit order could also expose the whole scheme to challenge in the federal courts, as a plaintiff who is not hired in favor of an illegal alien with an Obama work permit would have the right to sue.

For those interested in a fuller legal discussion of the issue, see my article in Texas Law Review, available for free download here.

Proposed EPA Regs Would Affect Climate by Eighteen-Thousandths of a Degree by 2100 — and Cost U.S. Economy $51 Billion Annually


The Environmental Protection Agency’s new proposed rules, which seek to limit carbon emissions from power plants, would cost the American economy $51 billion, as well as 224,000 jobs, every year through 2030, the U.S. Chamber of Commerce estimates.

With that significant of an economic impact, one would hope the EPA had a pretty good justification, right?

But I write today:

As the Cato Institute recently noted, the agency forgot to include one very important calculation in the information they released about the proposed rules: whether or not they will actually affect climate change.

“There’s really no reason to go after carbon emissions unless you think they cause climate change,” Chip Knappenberger, assistant director for Cato’s Center for the Study of Science, tells me. The impact on climate change is key. But the EPA hasn’t publicized any finding on that supposed link.

Knappenberger and his colleague Patrick J. Michaels crunched the numbers using an EPA-developed climate-model emulator. They found that the regulations would somewhat affect the climate — by eighteen-thousandths of a degree Celsius by 2100.

“We’re not even sure how to put such a small number into practical terms, because, basically, the number is so small as to be undetectable,” Knappenberg and Michaels wrote when they released their findings. “Which, no doubt, is why it’s not included in the EPA Fact Sheets. It is not too small, however, that it shouldn’t play a huge role in every and all discussions of the new regulations.”

That’s not the only time the EPA has used some suspect math. A new report from the Government Accountability Office found that the EPA was calculating how its regulations would affect employment using a study outdated by 20 years that had, even when current, looked at only four industrial sectors. You can read about even more about the agency’s number-fudging here.

— Jillian Kay Melchior writes for National Review as a Thomas L. Rhodes Fellow for the Franklin Center. She is also a senior fellow at the Independent Women’s Forum.

McConnell Challenger: Fatty Food Eaters Need Obamacare


Kentucky Secretary of State Alison Lundergan Grimes has been uncomfortable with supporting Obamacare during her bid to unseat Senator Mitch McConnell (R., Ky.,) but she thinks she’s found an argument she can make for the law.

People who eat fatty foods need it, according to Grimes. “[W]e’re here at the State Fair and if there’s three reasons why Kentuckians, especially our seniors need access to affordable health care coverage, you just have to look over to the right where you see the donut burger, the chili cheesesteak and the covered French fries that are here,” the Democratic hopeful told local media.

WHAS reporter Joe Arnold was surprised by the argument. “She actually drew a link between the fatty foods sold here at the Kentucky State Fair and the need for seniors to have health care access,” he told viewers.

McConnell’s campaign used the comment as a sign that she’s a liberal Democrat.

“Alison Lundergan Grimes first proved she was Barack Obama’s Kentucky candidate when she used the existence of the donut burger as justification to ruin the American healthcare system,” spokeswoman Allison Moore said.

Grimes refused to say if she would have voted for the law when it passed in 2010.

“I, when we are in the United States Senate, will work to fix the Affordable Care Act,” she told the Associated Press in May.

Grimes prefaced her donut burger comment by saying that she remains “troubled with certain aspects of the Affordable Care Act.”


No, I’m Not Sorry for Supporting the Invasion of Iraq


As Syria burns, as casualty rates soar to levels not seen in the Middle East since the Iran–Iraq War, and as a Ba’athist dictator clings to power in part by the use of chemical weapons, it simply boggles the mind that so many Americans seem to believe that the world would be better off with Saddam Hussein — and are so committed to this view that they literally want to shut down any discourse from supporters of the 2003 invasion. Here, for example, is Bill Clinton, dismissing Dick Cheney’s critiques, with this incredible statement: “I believe if they hadn’t gone to war in Iraq, none of this would be happening.” 


Let’s review a bit of history, beginning with this rather important fact. Syria is a jihad-exporting bloodbath, and we never invaded Syria. Indeed the Ba’athist dictatorship has been left intact — subject mainly to Israeli containment — for decades. It had invaded Israel in 1973, had put down a bloody jihadist rebellion in the city of Homs in 1982, had occupied Lebanon for almost 30 years, and had started working with North Korea to develop nuclear weapons, but Nancy Pelosi still said, in 2007, that “the road to Damascus is a road to peace.” Then-senator Kerry said, “Syria will change as it embraces a legitimate relationship with the United States.”

They were wrong.

Syria represents a virtual lab experiment in what happens when oppressive Ba’athists try to rule multi-faith societies indefinitely through fear and oppression. Is the argument that Iraq, unlike Syria, would have been somehow immune to jihad had we not invaded? Let’s not forget that Saddam’s own experience with sectarian violence and jihad was remarkably similar to Assad’s. In other words, he didn’t put a “lid” on sectarian violence, he was the sectarian violence — using the power of a motivated, armed religious minority to commit mass murder. Saddam’s regime was as unstable as Assad’s. Perhaps more so.

In other words, in Syria we have a probable answer to the question: “So, what would have happened to Iraq if we didn’t invade?”

Earlier this week, progressive Christian writer Jonathan Merritt called me out by name as an Evangelical supporter of the war in Iraq, claiming that people like me share the blame for persecution of Iraq’s Christians, noting (correctly) that Iraq’s Christians suffered during the Iraq War (as did all Iraqis), then claiming I should be “pleading for forgiveness.”


I’m not sorry that I advocated that America destroy a regime that committed mass murder, harbored terrorists, invaded its neighbors, funded jihad against Israel, shot daily at American pilots, tried to kill an American president, and was diligently working to rebuild its once-massive stocks of chemical weapons.

I’m not sorry that we fought long and hard — both against the regime (initially) and the insurgency (later) — to not just defeat our enemy but to replace it with a more humane, more stable government.

I’m not sorry that while we fought we made every effort — even at the cost of American lives — to protect and safeguard the population even as we confronted an enemy who wanted nothing more than to increase the civilian body count in the most gruesome ways possible.

In fact, I’m proud of what we were building, not a perfect state, to be sure, but a place that was — while we were still there — proving to be more peaceful, more prosperous, and more free than Saddam’s broken, murderous, kleptocratic tyranny. 

I’m proud that every single year of the war enough Americans believed in this mission that an all-volunteer force sustained a long fight, and sustains our fight in Afghanistan to this day.

I’m not “pleading for forgiveness,” but I am angry — angry that we were not permitted to preserve our hard-won victories and protect the people we’d sacrificed so much to save. Yes, Christians suffered during the war, but we did everything we could to stop that suffering, and the suffering of all of Iraq’s people. Had an American force stayed behind, we would not see ISIS in control of Mosul. We would not see the Peshmerga retreating for lack of ammunition. We would not see a new Caliphate emerging from the ruin of two countries. It really is that simple.

It is easy to lament dark times and encroaching evil. It is harder, much harder, to take action. I’m reminded of this exchange between Frodo and Gandalf in J. R. R. Tolkien’s The Fellowship of the Ring:

“I wish it need not have happened in my time,” said Frodo. “So do I,” said Gandalf, “and so do all who live to see such times. But that is not for them to decide. All we have to decide is what to do with the time that is given us.”

I’m proud of the decision my brothers in arms made, to fight against evil, to try to hold back the darkness. And I’m proud of how they did it, with great honor and courage. Even as Iraq collapses, I can look my children in the eye and tell them that I did everything I could do to try to stop the calamity they see on television. I’ll tell them the stories of friends who gave everything a man could give to resist the same evil that marches today.

No, I’m not going to plead for forgiveness. There is nothing to forgive.

Ferguson Police Chief: Peaceful Protesters Should Not Mingle with Violent Crowds


Responding to criticism that police in Ferguson, Mo., have arrested individuals engaged in peaceful protests, Ferguson police chief Tom Jackson parried:

If individuals are in a crowd that’s attacking the police, they need to get out of that crowd. We can’t individually go in and say, ‘Excuse me, sir, are you peacefully protesting? Are you throwing rocks? Are you throwing a Molotov cocktail?’

According to Jackson, “tactical commanders on the ground” are responsible for making the decisions to use tear gas, rubber bullets, and other non-lethal measures, and those decisions are “based on the threat of violence.” Unfortunately, because individual peaceful protesters cannot be separated out of violent crowds, those protesters may suffer part of the police pushback.

Jackson advised demonstrators: “If the crowd is getting violent, and you don’t want to be violent, get out of the crowd.”

Ferguson Police Chief: We’re Discussing Both ‘Tactics,’ ‘Appearance’


At a midday press conference, Ferguson, Mo., police chief Tom Jackson told reporters that “tactical units” will remain on the streets tonight, but that law enforcement dealing with the ongoing protests are reevaluating tactics.

“If firebombs start getting thrown, property’s getting destroyed, shots are being fired, people are being shot at, we have to respond to deadly force.” He noted, though, responding to criticism of local police officers’ military-style garb and gear, that “we’re going to talk not only about the tactics, but about the appearance.”


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