Paul Manafort is Under the Bus, and He’s Not Coming Back

by Rich Lowry

The White House has been distancing itself from Paul Manafort, and for good reason. On the one hand, this is absurd — Manafort was the campaign manager and had a huge role in putting Trump over the top for the nomination. On the other hand, there is no suggestion of any of the Russian stuff touching the core political team that got Trump elected president — Conway, Bannon, Bessie, et al. If the Manafort revelations get worse, and there is no reason to believe they will get any better, Trump’s innoculating argument will obviously be that he fired him and barely knew the guy.

Gorsuch on Roe at the Hearings

by Ramesh Ponnuru

Pro-lifers have been burned often enough by Republican appointees to the Supreme Court to be nervous when watching confirmation testimony. Two of Judge Gorsuch’s exchanges raised a few pulses.

First, his comments under questioning from Senator Feinstein are being taken as suggesting that he thinks Roe v. Wade is a settled issue. Here’s a rough transcript:

FEINSTEIN: Good to see you again.

Since we’re on Roe, I wasn’t going to begin with this, but I well recall the time we spent in my office and we talked about precedent. And in my opening remarks, I indicated that if anything had super precedent, Roe did in terms of the numbers, and I’ve put that in the record.

Here’s why it becomes of concern. The president said that he would appoint someone who would overturn Roe. You pointed out to me that you viewed precedent in a serious way in that it added stability to the law. Could you elaborate on the point that you made in my office on that?

GORSUCH: I’d be delighted to, Senator. Part of the value of precedent — it has lots of value. It has value in and of itself because it’s our history and our history has value intrinsically. But it also has an instrumental value. In this sense, it adds to the determinacy of law.

We have lots of tools that allow us to narrow the realm of admissible dispute between parties so that we can — people can anticipate and organize their affairs. It’s part of the reason why the rule of law in this country works so well. We have statutes, we have rules, we have a fact-finding process and a judicial system that’s the envy of the world.

And precedent is a key part of that because, as the Chairman pointed out when he quoted an old piece of mine, once the case is settled, that adds to the determinacy of the law. What — what was once a hotly contested issue is no longer a hotly contested issue. We move forward.

Here he’s just making a general point about the value of precedent. While the point was prompted by a question that has Roe in the background, there’s no reason to think that Gorsuch believes that Roe in particular needs to be re-affirmed. My own two cents on this question: Truly settled issues are the ones that don’t require frequent declarations that they’re settled.

Second, he told Senator Graham that if President Trump had asked him to overrule Roe, “I would have walked out the door. It’s not what judges do.” I don’t think he’s making a Roe-specific point here, either: He’s saying that it would be improper for a prospective judge to promise to rule in a particular way in a future case.

A bit more on this. I think some of the conventions that have been built up to protect judicial independence are absurd. Judge Gorsuch leans heavily on those conventions when he claims that if he shared his thinking on a constitutional question–such as whether the Second Amendment is rightly read to protect an individual right to own guns–then litigants will have reason to doubt that they are getting a fair and unbiased judge to hear their case. I’m not saying Judge Gorsuch should use these hearings to break this convention. But come on. That’s like saying that litigants can’t trust Supreme Court justices who have previously ruled on cases involving the same issues as theirs. To get a fair hearing, litigants in a gun case would need to have new justices who had never ruled on–or, of course, otherwise suggested what views they hold on–the meaning of the Second Amendment.

But even I think that Gorsuch is right in what he said to Graham: A judge can’t promise a specific desired outcome before he has even heard a case.

Yes, Win Elections, but Don’t Forget the Culture

by George Leef

Are we focusing so much on politics that we’re forgetting the role of culture in shaping society? The Martin Center’s Jesse Saffron think so and makes his case in “Beyond Ideology: Poetry and the Conservative Mind.”

“Since roughly the midway point of last century,” he writes, “conservatives have abandoned their progenitors’ insights into the importance of culture, literature, and aesthetics. The elevation of transcendent beauty and truth, the intellectual and cross-generational preservation of great artistic and philosophical achievements — these tasks, once central to the conservative project, have been subordinated.”

Saffron looks in particular at poetry, inspired by Russell Kirk’s line, “If men of affairs can rise to the summons of the poets, the norms of culture and politics may endure despite the follies of the time.”

Sadly, most of our poets these days have been schooled in left-dominated Master of Fine Arts programs and the academic world is largely hostile to the work of poets who aren’t part of their circle. Antioch College even boasts that its MFA program is geared toward “the pursuit of social justice.” Saffron points us to a few poets who are swimming against this tide.

I think Saffron is right — we must endeavor to save our society from the “progressives” and their statism not only through politics and think tanks and magazines, but also through poetry, film, music, and all other aspects of culture.

Britons Respond to the London Terror Attacks

by David Pryce-Jones

The anger of the British public over the latest act of terror in London comes across strongly in the press, on television, and in talk shows. It is nonetheless undirected, as though the question were “How can things like this happen here?” rather than, “What will stop attacks like this?” So far, the terrorist remains unidentified. A journalist, Quinton Letts, happened to catch sight of the man who, he reports, had a bushy beard. Islamic State terrorists ran down and killed and injured passers-by in exactly this manner in Berlin and Nice. A lethal attack on the Westminster Parliament seems to bear out the IS anti-Western slogan of “No democracy.” Moreover, at this very moment U.S.-led coalition forces are moving in on Raqqa, the Syrian town where IS has its capital and now faces its end-game. It is a virtual certainty that the terrorist saw himself fulfilling a religious obligation and was completely clear in his own mind. Yet Prime Minister Theresa May calls him “sick and depraved.” In an even more far-fetched euphemism, the police and counterterrorism officials describe him as an “international terrorist.”

By coincidence, Martin McGuinness was buried at that same time. He was a particularly sinister IRA terrorist, utterly cold-blooded as he fulfilled what he saw as a nationalist and Catholic obligation. He is thought to have tortured his victims, among them Marcus McCausland, a big-hearted man I had been at school with. Because the IRA was defeated in the field, McGuinness entered politics, whereupon the British government struck a shabby deal empowering him. Those responsible, notably Tony Blair and his advisers, come forward now to praise this evil man. The BBC compares him to Nelson Mandela. McGuinness is a peace-maker only because they are his apologists.

Where Islamic terror is concerned, if the British public is invited to accept anything like this obscuring of moral judgment for the sake of political advantage, their anger will put a stop to it.

The Fair Point from Devin Nunes That Trump Critics Don’t Want to Acknowledge

by Jim Geraghty

From the Thursday edition of the Morning Jolt:

The Point Devin Nunes Is Making That Trump Critics Refuse To Acknowledge

It’s perfectly fair to ask whether the chairman of the House Intelligence Committee should be traveling to the White House to brief the president when the FBI Director just announced that there is an ongoing investigation into whether there was any collusion between the president’s campaign and a foreign government in the past year.

But everybody’s whacking Rep. Devin Nunes around like a piñata right now, and it’s easy to forget he’s raising a perfectly valid concern.

On January 12, the Washington Post columnist David Ignatius wrote:

According to a senior U.S. government official, Flynn phoned Russian Ambassador Sergey Kislyak several times on Dec. 29, the day the Obama administration announced the expulsion of 35 Russian officials as well as other measures in retaliation for the hacking. What did Flynn say, and did it undercut the U.S. sanctions? The Logan Act (though never enforced) bars U.S. citizens from correspondence intending to influence a foreign government about “disputes” with the United States. Was its spirit violated? The Trump campaign didn’t immediately respond to a request for comment.

This is a leak of classified information. Michael Flynn was not, as far as we know, a target of any U.S. government surveillance. He was one of the figures whose conversations was “incidentally” recorded, presumably as part of the regular monitoring of Kislyak.

People within the U.S. government are not supposed to take the information that is incidentally recorded and then run to David Ignatius because they don’t like the American citizen who was recorded. That’s not the purpose of our domestic counterintelligence operations.  Even if Flynn had violated the Logan Act – which, as we all know, no one has never been prosecuted for violating – there are legitimate avenues for dealing with that, namely going to law enforcement and a prosecutor.

(Invoking the Logan Act in this circumstance is particularly nonsensical, because the interpretation Ignatius floats would criminalize just about any discussion between a presidential candidate, a president-elect or his team and any representative of a foreign government on any matter of importance. If you ask a foreign official if his country would make a concession on Issue X in exchange for a U.S. concession on Issue Y, BOOM! Call out the SWAT teams, we’ve got a Logan Act violation!)

There are a lot of reasons to not like Michael Flynn, but that doesn’t change the fact that somebody broke the law and leaked classified information in an effort to get him in trouble. That is wrong and that is illegal, and Nunes is right to point out we’re going down a dangerous road when information collected by U.S. intelligence agencies about American citizens starts getting strategically leaked for partisan purposes.

Here’s what Democrats and their friends in the media are too shortsighted to recognize: any skullduggery they excuse now will be used against them in the future. Anything that the Obama administration did during the transition can be done by figures in the Trump administration against future Democratic candidates.

Just about any serious presidential campaign and any presidential transition is going to speak with someone under U.S. government surveillance at some time. It seems reasonable to think that every ambassador and representative of a foreign government, but particularly those of Russia, China, and any other not-always-friendly country, is monitored 24-7 or as close to that as possible. Executives at foreign and international companies, scholars, retired officials – anyone connected to a foreign government is probably a potential source of intelligence and a potential target of surveillance.

The default setting for most of the media right now is, “well, the eavesdropping on Trump’s transition team was incidental; no harm, no foul.” But leaking of even incidental eavesdropping is harmful and is a foul. Nunes has a right to be angry, and to remind us that this strategic illegal leaking should bother us as well.

It Doesn’t Matter That Garland Didn’t Get a Hearing

by Dan McLaughlin

As I demonstrated in Monday’s column, Democratic efforts to claim that Judge Gorsuch should be defeated because Republicans “stole” a seat that rightfully belonged to Merrick Garland and President Obama collapse when you look at the history of election-year nominations. This is the seventh time that the Senate has left an election-year Supreme Court vacancy open for the next president, and of the ten such vacancies to happen when the president and the Senate were from different parties, six were left vacant, three were confirmed after Election Day in favor of the party that won the election, and only one (in 1888) was confirmed before Election Day.

There are a couple of common responses to this. One is to note that the Senate confirmed Anthony Kennedy, a Reagan appointee, in the election year of 1988. But Justice Kennedy was a victory for Democrats on a vacancy that long predated an election they ended up losing badly. Lewis Powell’s swing seat came open in June 1987, and Reagan’s first two, more conservative choices were thwarted (Bork by his defeat in the Senate, Douglas Ginsburg by withdrawal). The Senate in February 1988 — after more than seven months of delay, and a week before the Iowa caucus – confirmed an Earl Warren protégé who would go on to deliver massive victories for liberals on a number of key cultural issues (such as abortion and same-sex marriage). Moreover, Democrats in 1988 were acting in their partisan self-interest in taking the Kennedy nomination while they could, rather than run the 1988 campaign on cultural wedge issues (exactly what their nominee, Michael Dukakis, tried and failed to avoid).

The second is to complain that Garland never got an up-or-down vote. But as I noted in my column, majority parties in the Senate have used a variety of procedural devices to thwart Supreme Court nominees; of the 34 failed nominations (not counting one who was withdrawn and resubmitted for technical reasons), only twelve received a direct vote, and five were withdrawn in the face of opposition. The rest were prevented from moving forward due to a variety of Senate procedures. Some of those involved a vote on the record to table the nomination, some did not (William Micou’s nomination by Millard Fillmore in 1853 died without any action by the Senate). But Garland would have received a vote if there had been significant defections from the GOP majority; the absence of such defections (aside from Mark Kirk) means that a majority decided not to confirm him. A filibuster by a minority of the Senate would have been a radical step, but in this case, it was the Senate majority exercising its power.

Democrats are hardly on pristine ground here. Since the bipartisan (24 Republicans and 19 conservative Democrats) 1968 election-year filibuster of Abe Fortas and Homer Thornberry, there have been two efforts at filibusters of Supreme Court nominees, both by Democrats: against Samuel Alito and William Rehnquist. There’s some debate over whether the first of Rehnquist’s nominations can truly considered to have been filibustered: in 1971, Democrats denied that they were filibustering him, then defeated a Republican cloture motion (the 52–42 margin for cloture fell short of the 67 votes then required), but proceeded to allow an immediate vote. But in 1986, when he was nominated for chief justice, a cloture motion was filed to stop a Ted Kennedy filibuster, and passed 68–31, with sixteen Democrats voting for cloture and 31 against (senators voting against cloture included Joe Biden, John Kerry, and Al Gore). A more organized effort, led by Kerry, was made to filibuster Alito. This time, cloture passed by a vote of 72–25, with Kerry, Kennedy, and Biden now joined by Barack Obama, Hillary Clinton, Chuck Schumer, and Dick Durbin, among others, voting to filibuster Alito’s nomination.

The third and final avenue of attack is to complain that sure, the Senate has spiked nominees without a floor vote before, but they didn’t even give Garland a hearing. But this misunderstands the role and history of hearings. The Constitution says nothing about nomination hearings, which are a relatively modern innovation. No Supreme Court nomination received a public hearing until Louis Brandeis in 1916, and Harlan Fiske Stone in 1925 was the first nominee to appear and testify before the Senate. Harold Burton in 1945 was the last Justice confirmed without a hearing. (John Marshall Harlan II was denied a hearing when nominated after the midterm elections in 1954, although he returned, testified, and was confirmed in the following Senate session in 1955.) And as any nominee (including Gorsuch) can tell you, Judiciary Committee hearings aren’t for the benefit of the nominee, they’re for the benefit of the senators. In 2016, the Senate majority decided to leave the Scalia vacancy open, to be filled after an election they had only slim hopes of winning. No hearing would have persuaded anyone of anything. The Senate wastes enough time on pointless charades as it is.

The Senate’s refusal to consider the Garland nomination was a new packaging of the Senate’s power, and Democrats are right to complain that it was yet another step down the path of that has poisoned the confirmation process. But it was not actually unprecedented in any meaningful way for the party controlling the Senate to decide that an election-year Supreme Court nomination should be set aside until after the election.

 

Krauthammer’s Take: Hard to See Republicans Repudiating Trump and Ryan on Health Care

by NR Staff

With the health-care vote looming, Charles Krauthammer said that, while everything isn’t riding on it, President Trump and Speaker Paul Ryan could be severely damaged if their own party repudiates them by voting against the bill:

Well, it’s a little early in the presidency to say “make or break.” But it would certainly really damage the Trump presidency. And that’s why I think, in the end, these things happen in every presidency, but when you have the fate of a presidency and the fate of a speakership hanging on the vote, it’s hard to see that in the end his own party is going to repudiate them.

We saw in the early nineties, beginning of the Clinton administration, he had a tax hike that went down to the last minute, and one member of Congress, Marjorie Mezvinsky was her name, was the one vote that put Clinton over the top. She lost her seat as a result of that. But I would add as a happy note, she gained a daughter-in-law since her son married to Chelsea. I’m not sure that’s going to happen in this case.

I think, in the end, there is so much at stake, and I think there is this Cruz option where he is suggesting that they take a risk and add a change in what is called the coverage mandate — all of the things that Obamacare requires that you have in your plan, which is the worst part of the deal, that they are promising now the HHS secretary will take out. But the Conservatives are saying a new HHS secretary could restore it, so we want it in the law. I think that would be a reasonable offer to give conservatives. And that would ensure its passage.

BREAKING: London Terror Attack Kills Four; Parliament Goes on Lockdown (UPDATED)

by NR Staff

6:07 p.m.: U.K. prime minister Theresa May called upon her countrymen to carry on as normal in a short speech following the terrorist attack in London today:

She praised police officers, expressed sympathy for the victims and their families, and near the end, declared that attempts to change the British way of life are in vain:

These streets of Westminster — home to the world’s oldest parliament — are engrained with a spirit of freedom that echoes in some of the furthest corners of the globe. And the values our Parliament represents — democracy, freedom, human rights, the rule of law — command the admiration and respect of free people everywhere. That is why it is a target for those who reject those values. But let me make it clear today, as I have had cause to do before: Any attempt to defeat those values through violence and terror is doomed to failure. Tomorrow morning, Parliament will meet as normal. We will come together as normal. And Londoners — and others from around the world who have come here to visit this great City — will get up and go about their day as normal.

Her statement affirmed that the officer and assailant were indeed killed after the attacker exited his vehicle, with which he had already killed two pedestrians. (Three other officers were wounded.) She offered no new information, and speculation about the identity of the attacker has so far been inconclusive.

2:27 p.m. U.K. police have confirmed four dead in what they are calling a “terror incident” outside the Houses of Parliament. One of those dead is the suspected attacker. He also injured over 20. He hit pedestrians with his car before crashing into a barricade outside Parliament, when he exited his car and killed a police officer with a knife.

Reports that there were two assailants appear to have been false. This photo from the AP shows the suspected attacker on a stretcher:

One example of heroism in this frightful attack came from British foreign minister Tobias Ellwood, who tried to save the stabbed officer. The Telegraph reports:

The Tory MP attempted to give the officer mouth-to-mouth resuscitation and stemmed the blood flow by applying pressure to the wounds.

Mr Ellwood – himself a former soldier – remained with the injured officer waiting for the air ambulance to arrive, which landed in Parliament Square.

Tragically, this is not entirely new for Ellwood. His brother Jon was killed in the Bali terror attack in 2002, which killed 27 Britons and 202 in total.  

1:49 p.m. The BBC reports:

[The BBC's Daniel Sandford] says eye-witness reports have referred to a “bald white man” and a “black man with goatee beard” in association with the incident.

It is possible, although he stresses this is not confirmed, that both may have been in the car when it was driven at “high speed” down Westminster Bridge – knocking down an estimated eight people.

The car, Daniel Sandford adds, crashed into the parliamentary railings soon after.

Also, the BBC reports that the officer who was stabbed in the incident has died. This is in addition to the woman who was originally confirmed dead. The officer was given emergency medical care at the scene.

Police are gearing up to make a new statement any minute.

1:23 p.m.: Sky News is reporting that two are dead, but CNN and others have not confirmed a second death.

One woman went into the river and was injured, and the BBC reports that she has been rescued:

The Port of London Authority has confirmed that a seriously injured woman has been recovered from the Thames river.

Spoken Martin Garside said: “A female member of the public was recovered alive from the water, but with serious injuries.

“She has been brought ashore and is undergoing urgent medical treatment. The working assumption is that she fell or jumped from the bridge”.

He added that the river is completely closed to vessels between Vauxhall Bridge and the Embankment.

The driver crossed the Westminster Bridge, and this woman may have leapt from the bridge to avoid his car.

Bloomberg has aerial footage of the area, including the bridge and Parliament, and they provide some background about the incident and the security there.

1:01 p.m.Chambers of Parliament are in lockdown after an attack in London where a man driving a Hyundai drove into pedestrians, killing at least one, and then stabbed a police officer. The attacker was then shot by police.

Scotland Yard commander B.J. Harrington addressed reporters moments ago to confirm that a full counter-terrorism investigation is underway. He also confirmed that the attacker had a knife, and that officers with firearms engaged him. He stressed repeatedly that he would not speculate further.

He also named various parts of London that people should avoid. “This is to allow emergency services to deal with the incident,” he said. He also asked anyone with images or film of the incident to share them immediately.

Security is ramping up all over the city, especially where there are government officials. We will update the Corner as the story develops.

Revisiting NFIB v. Sebelius

by Ramesh Ponnuru

I take Kevin Drum’s point in this post to be that the view that the Supreme Court is in general too inclined to overturn federal laws is hard to square with the view that it should have struck down Obamacare because of the individual mandate. A series of precedents upheld congressional authority to impose the mandate, he claims, yet conservatives invented a “hairsplitting” distinction between regulating commerce and forcing someone to enter commerce in order to justify striking it down.

The key assertion here is that the distinction is hairsplitting. If you don’t agree with that, as I don’t, you’ll view the case differently. You’ll think that Congress had not previously tried to impose anything like the individual mandate, that the Court had therefore never considered whether it could, that the precedents that blessed an expansive congressional power to regulate interstate commerce were thus off-point, and that new arguments had to be thought through to meet the new circumstance. Those arguments, in my view, justified striking down the individual mandate (as four and a half justices concluded in NFIB v. Sebelius).

But I’ll give Drum this: I do think that the Court overreached, with conservatives’ approval, in striking down part of Obamacare. Seven justices agreed that the federal government could use the threat of withdrawing some federal funds to get states to expand Medicaid, but could not withdraw as much funding as the Obamacare law threatened. That the Constitution lays out any such judicially-enforceable line has always seemed implausible to me.

Mailbag, Supreme Court Edition

by Ramesh Ponnuru

Email 1:

I get that you think what the Republicans did to Merrick Garland last year was constitutional. But don’t you feel a little bad for Judge Garland personally? He’s a distinguished judge who got dragged into a hyper-partisan process.

No, I don’t feel bad for Judge Garland. He was picked after Senate Republicans had done everything in their power to make clear that they were not going to proceed with a nomination until a new president was elected (and he might not have been nominated absent their statements). Republicans blocked him, moreover, by simply not doing anything. Thus there were very few attacks on his record or his character. Nobody accused him of hostility to schoolkids with autism, for example, as Nancy Pelosi has done to Gorsuch; national publications haven’t distorted his decisions, as (to pick one of many, many examples) Adam White shows Slate has done to Judge Gorsuch. I’m sure Garland would switch places with Gorsuch if he could, but there is a long list of past presidential nominees who have more cause for complaint than he does.

Email 2:

Alright already, we get it. You love Neil Gorsuch. You don’t need to keep telling us.

False. I could never love anyone who is against the dormant commerce clause.

On Super-Precedents

by Peter Augustine Lawler

Well, Gorsuch is wowing America in the confirmation hearings. He does display a virtue of our president: Trump prefers appointees who look and sound the part. And Gorsuch is somewhere between Jimmy Stewart and Gregory Peck. In my limited circle of personal contacts, it’s pretty stunning how many hate Trump but are okay with Gorsuch.

I haven’t been following the hearings closely, partly because I have a job and partly because I don’t care if Gorsuch agrees me on any particular constitutional issue. He easily passes the character and competence standards on which all judicial nominees should be judged. Once he’s on the Court, it goes without saying, he’ll surprise us now and again.

On the issue raised by Senator Dianne Feinstein about Roe’s being properly regarded as a kind of super-precedent: The senator herself and the various commentators don’t seem to realize that Roe’s having “rare precedential force” as a “landmark decision” is the reigning precedent. That’s what the Court said in Planned Parenthood v. Casey.

The Court actually mentioned two such super-precedents: Roe and Brown v. Board of Education. In both cases, the argument goes, the Court meant to resolve a major national controversy, to, in effect, end constitutional conversation on the matter.

In the case of Roe, it’s also the case that women have come to organize their political and economic lives as free and equal participants with abortion as a back-up to birth control.

That means the Court couldn’t notice error in Roe, if error there was, without calling into question its own legitimacy. And so the standard for overturning that decision seems to be actually higher than beyond reasonable doubt.

The super-precedent idea reflects a more general principle of constitutional interpretation embraced by Justice Sandra Day O’Connor. Stare decisis become a more formidable consideration when people have gotten used to having been granted a right or privilege. Another example: She wrote the opinion in Grutter v. Bollinger upholding Justice Lewis Powell’s quirky and otherwise sketchy judgment in his Bakke opinion (with which no other member of the Court agreed) that diversity as an educational technique is the only purpose that justifies affirmative action or taking race (and so forth) into account in making admissions decisions. Our institutions of higher education had gotten used to operating under that doctrine and so let’s just stay with it, she came close to saying straight out. So she mainstreamed a doctrine that turns our attention away from a real national conversation about the justice of remedying the effects of past or present discrimination through race-based policies — and so helped turn “diversity” into a mendacious substitute for what’s really at stake under our Constitution.

With this way of thinking in mind, the Obergefell same-sex marriage decision quickly becomes a super-precedent. People have gotten used to it, and imagine the havoc caused if suddenly gays no longer had the right to marriage. In that case too, the Court clearly meant to bring a national controversy to an end.

To my mind, the suggestion might be that Roe and Bakke might have been illegitimate judicial activism when they were decided but that now it would be illegitimate activism to overturn them. This is a very convenient doctrine for deflecting attention from what the Constitution actually means.

It’s easy to criticize this line of thinking in a number of ways. For one, Roe isn’t much like Brown. The latter decision was unanimous, and any controversy it engendered disappeared as a national issue within a decade. On Roe, both the Court and public opinion remain divided. The Court tried but failed to bring a national controversy to an end. In that respect, Roe is more like Dred Scott, which tried and failed to unite the country around a pro-slavery interpretation of the Constitution.

And it’s far from clear that it’s the job of the Court to end national controversies over issues about which people can reasonably disagree, such as abortion or same-sex marriage or even, in the antebellum context, the place of slavery under the Constitution. Those issues are usually best resolved by legislative deliberation and often compromise.

Most importantly, the doctrine of the super-precedent is entirely a judicial invention with no constitutional warrant. The Court now is in no way obliged to honor it, although it can’t help but sometimes make prudential judgments about the effects of disruptive decisions.

It would have a calming effect on many Americans to be assured that some precedents can’t be revisited. And maybe the compromise would be best that allows same-sex marriage to be viewed as settled law while drawing the line at using that precedent to endanger religious liberty. That, of course, legislatures could readily do.

But the Court has to be guided by a genuine effort to discern how the Constitution is to be applied in a particular case, whatever the precedents might be.

Gorsuch: ‘A Mistake to Say That Originalism Turns on the Secret Intentions of the Drafters’

by Paul Crookston

This morning at Neil Gorsuch’s confirmation hearing, Senator Dianne Feinstein asked whether originalist ideas conflict with the notion of equal protection under the law. Not only did Gorsuch address the text of the 14th Amendment directly, he eloquently described the way that an originalist interpretation of that amendment is the best guarantee of justice:

It would be a mistake to suggest that originalism turns on the secret intentions of the drafters of the language of the law. The point of originalism, textualism, whatever label you want to put on it — what a good judge always strives to do, and I think we all do — is strive to understand what the words on the page mean. Not import words that come from us, but apply what you, the people’s representative, the lawmakers, have done. And so when it comes to equal protection of the law, for example, it matters not a whit that some of the drafters of the 14th Amendment were racists, because they were, or sexists, because they were. The law they drafted promises equal protection of the laws to all persons. That’s what they wrote. And the original meaning of those words John Marshall Harlan captured in his dissent in Plessy. An equal protection of the laws doesn’t mean separate in advancing one particular race or gender — it means “equal.” And as I said yesterday I think that guarantee — equal protection of the law’s guarantee in the 14th Amendment, that it took a civil war for this country to win – is maybe the most radical guarantee in all of the constitution, and maybe in all of human history. It’s a fantastic thing, and that’s why it is chiseled in Vermont marble above the entrance to the Supreme Court of the United States.

Critics, such as Feinstein herself, have accused Gorsuch of avoiding substantive answers during this confirmation, because he has refused to answer blatantly political questions. This clear and erudite explanation of his judicial philosophy is the best refutation of that charge.

Republicans Are Doing a Terrible Job Arguing for Their Health-Care Plan

by Veronique de Rugy

The House Republican leadership and their supporters are doing a really bad job of trying to convince reluctant Republicans to vote for their health-care plan. Their arguments pretty much revolve around these three points: 1) We have to pass this bill, we have no choice; 2) this plan cuts taxes, and we love tax cuts; and 3) if you don’t vote for this bill, you may lose your seat in 2018.

As he did during the presidential election, Speaker Ryan likes to say that tomorrow’s vote is “a binary choice,” and that this bill is “the closest we will ever get to repealing and replacing Obamacare.” I disagree. Voting for a bad bill isn’t the only choice members of Congress have and neither is it better to implement bad policies than to do nothing. For one thing, if this is the best that leadership can deliver on health-care reform, then it is a very sad day for the free-market movement, and it tells you a lot about those behind the bill. Anyone looking at this bill from a policy perspective can see that it is a poorly designed replacement plan, which achieves less than Obamacare. Even after the amendments made to the bill to try to fix it, Michael Cannon of the Cato Institute rightly sums up:

These changes are cosmetic. They do not alter the fact that the CBO projects the AHCA will cause average premiums to rise by 20 percent. And they do not address the root problem of excessive health care prices.

Expanding the tax credits simply throws even more federal dollars after unaffordable care. . . . 

When the House GOP leadership unveiled the American Health Care Act, I wrote that it “merely applies a new coat of paint to a building that Republicans themselves have already condemned.” All these amendments do is paint the shutters a different color. Even with these amendments, the AHCA would be worse than doing nothing.

As Washington Examiner’s Phil Klein explained well, this is not what conservative reform looks like and there are plenty of good policy reasons to oppose it. That would give a chance to Republicans to go back to drawing board and come up with an actual free-market repeal bill.

I get also very tired of hearing that it is worth supporting a bad bill because it cuts taxes. I love tax cuts as much as the next free-market person. But you know what? I love small government and good policy even more. That’s because I don’t believe that you can have one without having the other. If the tax cuts are part of a bill that gets the policy so wrong that whatever spending cuts are planned, they won’t materializing (which will create great pressure for future tax hikes), then I lose my enthusiasm for tax cuts. Republicans should try to get the policy right rather than just be happy with the plan to cut taxes.

On this point, Avik Roy adds the following:

While fixing the AHCA’s treatment of the low-income near-elderly proved to be too heavy of a lift for the House, the Manager’s Amendment does find the time to cut taxes further for upper-income individuals, by pushing forward the repeal of Obamacare taxes to include the 2017 tax year.

My Forbes colleague Ryan Ellis is pleased by these tax cuts, but it’s curious that extending tax cuts was a higher priority for the House than addressing the fact that the bill will make insurance unaffordable for millions of Americans.

The “vote for Obamacare repeal or else” argument is also particularly unappealing. That tells you nothing about how good the plan is, and it tells you a lot about the desperation of those pushing it. Seriously, having to resort to threats is not a sign of strength. And, by the way, what is the rush? This plan is not rolling back Medicaid expansion and it’s not really kicking in until a few years down the road. Republicans should have more time then to put together a good plan, or at least a plan as good as the one they voted for last year to fully repeal Obamacare. On that note, if leadership wanted to make sure they would get the support of the members of their party, shouldn’t they have circulated the plan long before they released it in order to get the input of scholars and members? Yes, they should have. But they didn’t.

Finally, I see that Peter Suderman writes on this same issue this morning. He makes this excellent point:

There is the argument, made by Speaker of the House Paul Ryan, that the bill is a prerequisite for some hypothetical future tax reform legislation. (Last night, Trump made a version of this argument as well.) It is true that passing the health care bill through the reconciliation process now would make certain aspects of the tax reform process — namely permanent large tax cuts — easier later. But that is an argument for tax reform, not for the GOP health care plan.

One area where the Republican leadership may be right is that Republicans were given an unprecedented opportunity to pass a repeal-and-replace bill and it will define them for years to come. Indeed, bad reforms will define them for many years to come.

NR Live: U.S. Marine Justin Constantine, Featured in President George W. Bush’s New Portrait Book

by Ericka Andersen

I was incredibly honored to speak today with Justin Constantine, a U.S. Marine who was severely wounded in 2006 and is featured in President George W. Bush’s new book, “Portraits of Courage.” Justin calls himself the “luckiest person you’ll ever meet.” I think we could all learn a lot from him. Enjoy this interview: 

GOP Missing Key Support as Health-Care Vote Looms

by Alexandra DeSanctis

As the House GOP prepares for a vote tomorrow on the American Health Care Act (ACHA), it appears unlikely that they will have the votes needed to shepherd the bill over to the Senate. The primary obstacle at the last minute has been the bill’s biggest obstacle all along: the House Freedom Caucus (HFC), a group of hardline conservatives in the House.

Nearly all of the HFC’s members have spoken out against the AHCA since it was released two weeks ago, and the tumultuous process of attempting to secure Republican votes for the measure has focused primarily on winning over these members.

Over the past two weeks, President Donald Trump, Vice President Mike Pence, and Speaker Paul Ryan have conducted several meetings with members of the Freedom Caucus in order to reach a compromise. The House GOP even made a few changes to the bill in an effort to resolve some of the outstanding issues that opponents raised after the rollout.

None of those changes has been enough to appease conservative members, many of whom insist that the GOP must “start over” with a whole new bill. Freedom Caucus chairman Mark Meadows (R., N.C.) insisted this afternoon that the bill still doesn’t have the votes to pass tomorrow.

“Many of you came in on the pledge to repeal and replace Obamacare,” Trump said in a recent closed-door meeting with conservative members. “I honestly think many of you will lose your seats in 2018 if you don’t get this done.”

But HFC members maintain that their constituents expect them to repeal Obamacare in full, not pass a half-hearted measure like the AHCA that leaves many of Obamacare’s key structures in place.

As of this afternoon, it seems Meadows is correct that there remain enough opponents to tank the bill tomorrow; the GOP can only afford to lose 21 of its own members’ votes, along with all of the Democrats. According to a New York Times count, 22 GOP representatives are hard “no” votes, with another 17 who have serious reservations about the bill. And a recently updated Huffington Post piece suggests that there are at least 29 GOP representatives who are extremely likely to vote against the bill, while another 12 lean “no.”

Despite the clear danger to the bill, House leadership has made no moves to reschedule Thursday’s vote and has yet to acknowledge the possibility that the AHCA might be defeated tomorrow.

Meanwhile, a number of prominent conservative think tanks and lobbying groups remain firmly opposed to the AHCA, including Heritage Action, Club for Growth, and Americans for Prosperity. Like the HFC, these groups note that GOP leaders have promised for years to repeal Obamacare, and the AHCA is a failure because it leaves much of Obamacare intact.

Even if the bill were somehow to pass the House in its current form, it will face significant challenges in the Senate, where both conservative and moderate Republicans have expressed reservations about it. Senators Rand Paul (R., Ky.) and Mike Lee (R., Utah) have indicated that they will vote “no” on anything other than a full repeal of Obamacare.

Ted Cruz of Texas announced recently that he cannot vote for any repeal-and-replace bill that doesn’t address the issue of rising premiums; the AHCA is estimated to raise premiums for the next few years before lowering them by 2026. Wisconsin senator Ron Johnson has noted that to say he is “skeptical” of the AHCA would be an “understatement.”

Moderate GOP senator Susan Collins of Maine came out last week as a firm “no” vote. In January, Collins and Bill Cassidy (R., La.) introduced a health-care reform bill that would give states the choice of whether or not they want to remain within the Obamacare system.

Is the Vehicle Assault the New Signature Terror Attack?

by David French

Today’s attack outside Parliament marks merely the latest in an increasingly long line of mass-casualty vehicle assaults. Terrorists are discovering that there is a weapon easier to obtain and use than bombs or even guns — the car in their driveway. It requires no special training to use, no background check to obtain, and it’s virtually impossible to stop unless the driver decides to drive into a solid object or decides to get out of the car. Even a man with a gun is easier to stop or kill than a man behind the wheel of a moving car. 

One of our under-appreciated advantages in the war against jihadists is that our terrorists enemies have often suffered not from a lack of imagination but rather from an excess of imagination. They’ve wanted to stage the grand, dramatic attack. Detonating bombs, hijacking planes, gunning down crowds of people — those are the kinds of attacks they imagine and plan for. The grander the attack, the greater the impact if it succeeds. But it’s also true that the large-scale attacks are more difficult to execute and easier to stop. There are good reasons why America hasn’t suffered from another large-scale terror attack since 9/11, and it’s not that terrorists aren’t trying. We’ve gotten lucky, yes, but it’s hard to hijack or bring down airliners. It’s hard to blow up embassies or try to sink ships. 

It’s not hard to get in a car, turn the ignition, and drive into a crowd of people. 

This is why the virus of jihad can’t be permitted to spread. This is why ISIS has to be crushed. This is why we have to be careful about who enters our country. Though spontaneous religious combustion can and does happen, it’s more often the case that terrorists work with or are inspired by existing jihadists and jihadist organizations. Thanks to brilliant reporting from the New York Times’s Rukmini Callimachi, we now know that multiple “lone wolf” attacks were in fact directed and enabled by ISIS operatives abroad. The business of terror frequently (but not always, of course) requires two parties — the willing jihadist at home and the enabling jihadist abroad. Thus it’s vital to attack the problem in both places, and that urgency only increases as terrorists refine their tactics. 

There are fewer potential bombmakers than their are potential gunmen. There are fewer potential gunmen than there are potential drivers. When it comes to vehicle attacks, the math does not work in our favor. 

A Pivotal Moment

by Rich Lowry

Tomorrow’s vote in the House is obviously a huge moment for Speaker Ryan and President Trump. If the health-care bill passes, it will be a big personal victory for Ryan and mean that the Trump agenda has life in Congress, although the bill’s fate will be very uncertain in the Senate. If the bill fails, it will be a debacle. It will be a blow to Ryan and possibly loosen his grip on the Speakership, and could mean Trump’s priorities grind to a halt in Congress (since those priorities, both health care and tax reform, are dependent on reconciliation, there are only a couple of bites at the apple). Sometimes legislation is revived after an initial setback, and maybe Republicans will find a way to re-start on Obamacare repeal or re-gain momentum on tax reform. But it’s more likely that nothing big happens, which may poison Trump’s relationship with Congress and/or cause a turn to the New Yorkers

Nunes on Surveillance

by Rich Lowry

This is interesting, although the key word is “incidentally”:

Kaiser Poll Misleads on Planned Parenthood Defunding

by Michael J. New

As congressional efforts to defund Planned Parenthood gain momentum, it is unsurprising that the group’s allies would push back. Last week, the Kaiser Family Foundation (KFF) released a poll about health-care reform proposals that also included questions about federal funding for Planned Parenthood. The results of this poll purportedly showed strong public opposition toward cutting off federal funds for the abortion group. This poll has received coverage from a number of media outlets including CNN, the Los Angeles Times, the Washington Examiner, and The Mercury News.

A closer look at the poll demonstrates that most of its questions are worded to make the defunding of Planned Parenthood appear as unappealing as possible. For instance, the poll reports that 75 percent of respondents indicate that “Medicaid funding to Planned Parenthood should continue.” The poll also indicates that there was broad opposition to defunding Planned Parenthood, and it reported that majorities of Republican respondents favored continuing to fund the group through Medicaid. But the polling questions do not mention Planned Parenthood’s numerous legal and ethical troubles — specifically their mishandling of Medicaid funds.   

Additionally, the questions also misstate current federal policy regarding abortion funding. Kaiser claims that there is a “ban on federal funds paying for abortion.” This is wrong for multiple reasons. First, the Hyde Amendment only places a limit on federal Medicaid — it does not apply to all federal monies. Secondly, the Hyde Amendment contains some exceptions. Federal Medicaid dollars still pay for abortions in cases of rape and incest. Finally, money is fungible, and the millions of federal dollars that flow to Planned Parenthood annually still indirectly subsidize abortion.

Most importantly, the polling questions misstate what congressional proposals would actually accomplish. Proposed legislation would not merely defund Planned Parenthood. In addition, Congress would reallocate Planned Parenthood funding to over 10,000 federally qualified health centers (FQHCs), which offer health services to over 20 million women a year. While Planned Parenthood clinics tend to be located either in cities or near college campuses, FQHCs are distributed more evenly throughout the country. This reallocation of federal funds would likely improve health-care access for millions of women.

A substantial body of past public-opinion data shows strong opposition to taxpayer funding of abortion. Numerous Marist polls sponsored by the Knights of Columbus have consistently found that over 60 percent of Americans oppose using tax dollars to pay for abortions. A 2016 poll commissioned by Politico and the Harvard School of Public Health arrived at a similar conclusion. Lastly, recent polling from the Susan B. Anthony List also shows that a majority of voters in 2018 Senate battleground states oppose giving taxpayer money to Planned Parenthood. Unfortunately, these polls and surveys tend to receive scant attention from the mainstream media.

House To Vote Today on Phase-Three Health-Care Bills (UPDATED)

by Alexandra DeSanctis

3:10 P.M. The Competitive Health Insurance Reform Act passed the House this afternoon, 416-7.

The House will vote today on two bills that will initiate phase three of the effort to repeal and replace the Affordable Care Act (ACA). Phase one began two weeks ago with the bumpy rollout of the House GOP’s American Health Care Act (AHCA), which is scheduled for a House vote tomorrow.

Congressional GOP leadership and the White House have insisted throughout the wrangling over the ACHA that, if the bill is passed, it will be followed by two more “phases” of executive and legislative action to further address the flaws of the ACA. The second phase will be managed by Health and Human Services Secretary Tom Price, who hopes to use his administrative authority to ease some of the regulations imposed by Obamacare that cannot be addressed by legislation.

The third phase will be made up of several pieces of legislation that cannot be passed in Congress through budget reconciliation. This is a process that allows a bill to pass the Senate with a simple majority, and it is the process that GOP leadership is currently using in the hopes of passing the AHCA. Because of the limits of the budget-reconciliation process, the AHCA can only address certain aspects of Obamacare, those having to do with taxes and spending.

The two bills that the House will consider today — the Small Business Health Fairness Act (H.R. 1101) and the Competitive Health Insurance Reform Act (H.R. 372) — are the first pieces of legislation introduced as part of phase three, and they target aspects of Obamacare that cannot be altered by the AHCA.

The Small Business Health Fairness Act will take the first steps toward allowing the purchase of health insurance across state lines. It will permit small businesses from different states to band together and negotiate with insurance providers, giving them leverage and placing them on more equal footing with large employers and unions.

According to House leadership, 95 percent of small businesses have faced increasing health-insurance costs over the past five years, and 10,000 small businesses have been forced to shut down as a result. The provisions of H.R. 1101 would allow for a greater range of health-care options, which would enable middle- and low-income families to purchase insurance through their employers at a lower cost.

The second bill, H.R. 372, would reform the McCarran-Ferguson Act, which currently exempts insurance companies from some federal anti-trust laws. Repealing these exemptions would restore competition in the health-care industry, lowering costs for hospitals, doctors, and patients. House leadership suggests that this bill would lower premiums by limiting market consolidation and making a variety of low-cost options available for more individuals and families.

The White House has indicated that President Donald Trump would sign either of these two bills, if they should reach his desk. The House’s consideration of these bills today takes place in the shadow of ongoing debate over the AHCA, and the fate of that bill remains unclear just one day before voting.