Tuesday, July 29, 2014


       As the Nation lurches towards a potentially debilitating fall election for Obama and his congressional minions, the Democrats find themselves resorting to sordid legal duplicity and political fraud as their best hope to sustain their anti-constitutional tyranny.

       More Lawlessness to Salvage Obamacare.  The U.S. Court of Appeals for the D.C. Circuit recently held that the Affordable Care Act ("ACA," commonly called Obamacare) does not authorize the federal government to pay health insurance premium subsidies for persons who obtained their insurance on the federal exchange rather than on one set up and maintained by the state of their residence. The case was Halbig v. Burwell.  The court rejected the Obama administration's argument that, despite plain language to the contrary -- i.e., that subsidies were available only through exchanges "established by a state" -- the ACA implicitly authorized subsidies for policies obtained through federal exchanges in states that had declined to set up their own exchange.

       Most states (36 of them) declined to set up their own Obamacare exchanges, but the Obama administration went ahead and approved subsidies for persons in those states anyway, despite the absence of statutory authorization. Consequently, the D.C. Circuit ruling is disastrous for Obamacare:  If the government can't pay the premium subsidies in that majority of states, the premiums will become intolerably expensive for some 5 million people, and Obamacare will become effectively insupportable and unsustainable.

            It will surprise no one that Obama's lawless government is continuing to pay the unauthorized premium subsidies despite their illegality.  Another federal appeals court, with a politically stacked panel of three liberal judges appointed by Obama  and Clinton, subsequently upheld the federal exchange subsidies even though the plain language of the ACA provides expressly to the contrary.  The bogus rationale for the Fourth Circuit's ruling in favor of unfettered subsidy authority  is that, the ACA's plain language notwithstanding, prohibiting the subsidies is inconsistent with the expansive purposes of the legislation.  

          Needless to say, the Administration and its followers have mocked the D.C. Circuit's decision's adherence to the actual language of the ACA, claiming that to limit subsidies in the manner specified in the statute makes no sense in light of the legislation's broader purposes of expanding and facilitating coverage. As it has time and time again, the Obama Administration scorns the rule of actual law in favor of whatever executive branch "interpretations" best further its policies and political objectives.

            Set aside for the moment that when a statute's plain language is clear, as it is in the ACA's subsidies authorization, there is no need to delve into the murky and contrived gibberish of so-called congressional intent and legislative history.  The fact is that, far from making "no sense," the absence of an authorization for subsidies in states that declined to set up their own exchanges served a very logical purpose of the bill's backers. And, as explained below, that purpose was well understood by constitutional lawyers and by those involved in the bill's enactment.  In short, the background and context of the ACA reinforces, rather than contradicts, its plain language limiting subsidies to policies obtained through state exchanges.

            Under established constitutional law, Congress cannot simply "commandeer" the States' personnel and resources to administer or enforce a federal program like Obamacare.  It can, however, legitimately pressure the States to do such things by offering federal benefits if they comply, or withholding them if they do not.  In short, the ACA could not directly compel states to establish and run Obamacare exchanges, but it could enact highly persuasive "incentives" to encourage them to do so.

            In the case of the Obamacare, the legislation tried to pressure States to set up their own Obamacare exchanges by withholding premium subsidies for their citizens if a State declined to set up a state exchange.  

           Thus, limiting subsidies to persons who got their insurance on State exchanges was no accident, drafting error, or "typo," as Obama's acolytes have dishonestly argued in criticizing the D.C. Circuit ruling. Rather, it was a deliberate legislative strategy designed to comply with a specific rule of constitutional law, the so-called "anti-commandeering doctrine.  The contemporaneous statements of the administration's leading expert on the ACA legislation clearly confirms this inescapable fact.

            All of this is clear to any honest lawyer with a basic grasp of the governing rules of constitutional federalism.  The problem, however, is that many of the judges, and at least four of the justices, who will ultimately decide this issue are not honest lawyers, but ideologically corrupt pettifoggers whose decisions are governed by the leftist imperatives of the Obama administration rather than by the text of the law or the Constitution.  The D.C. Circuit panel's honest and sensible decision in the Halbig case is apt to be overturned if and when, as expected, it is reviewed by the court's full en banc complement of 11 judges -- recently packed by Obama to provide a 7-4 majority of leftist Democratic judges.

            Ultimately, the main hope for a just resolution of this issue is that at least five Justices of the Supreme Court will be willing to stand up for the rule of written law and the integrity of constitutional government, as opposed to the arbitrary political dictates of the Obama administration and the lawless congressional Democrats.

            The Democrats' Insidious "Impeachment" Fundraising Scam.   It is no longer possible to overstate the deranged political depravity of the Democrat Party under Obama's leadership.  

            Angry and desperate due to strong indications that they face a major defeat, and possible loss of control of the Senate, in the coming congressional elections, there is no subterfuge or smear that they will not employ to salvage their prospects.  The Democrats are now frantically waving the bloody shirt of presidential impeachment in the hopes of triggering an angry voter reaction against congressional Republicans -- who would much sooner submit themselves to prolonged waterboarding than initiate that desperate and politically poisonous constitutional procedure.

            Over the past several weeks, a few Republicans and conservatives, the most prominent being Sarah Palin, have opined that Obama's persistent unconstitutional abuses of executive power are so extreme as to warrant impeachment (which, contrary to a common misunderstanding, does not cause removal from office, but merely triggers a trial in the Senate to consider that remedy).  Although these views are quite valid in substance, anyone with the least grasp of contemporary U.S. politics knows that the American electorate has no stomach for an intensely divisive impeachment spectacle -- as proven by the enormous political boost that the lecherous and perjured Clinton presidency received from his actual impeachment.

            Democratic political operatives are acutely aware that they are doomed to defeat in the 2014 congressional elections if they turn on substantive issues such as the disasters of Obamacare, the collapse of the Nation's southern border and resultant Invasion of the Illegals, or the Administration's multi-front foreign policy debacles.  Their only hope to avoid a major election disaster is to create a sensational political red herring that will divert the voters' attention from those real issues and focus it on whatever contrived outrage they can frame to discredit the Republicans and their candidates.

            The red herring they have settled upon for that purpose is the completely fictitious prospect of a movement by congressional Republicans to impeach Obama and have him tried and removed from office by the Senate.

            Needless to say, the prospect of impeaching Obama has been emphatically rejected by the actual Republican leadership in Congress, most recently in a strong statement by Speaker of the House John Boehner  (http://washingtonexaminer.com/why-john-boehner-called-impeachment-talk-a-scam/article/2551395).  As Mr. Boehner stated, "This whole talk about impeachment is coming from the president's own staff -- and coming from Democrats on Capitol Hill. Why? Because they're trying to rally their people to give money and show up in this year's election."  He then underscored the Republican position:  "We have no plans to impeach the president; we have no future plans.  Listen, it's all a scam started by Democrats at the White House."

            Wholly apart from whether Obama's serial malfeasance theoretically warrants impeachment -- and in a sane political environment, it would -- it is obvious that the Republicans' emphatic rejection of that prospect is entirely sincere.  Republican prospects for a successful election in the fall, including gaining control of the Senate, are very strong.  So exposing themselves to charges that they are divisive extremists by resurrecting the deeply unpopular impeachment procedure is the last thing Republicans would want to do.  As a result, neither the Republican congressional  leadership, the party leadership, nor any influential Republican congressional candidates are calling for House consideration of impeachment, let alone advocating it.

            In complete contrast, the Democrat campaign apparatus have pounced on impeachment as their favorite issue.  Their fundraising letters, their speeches, and the programs and articles put forth by their puppets in the media are obsessed with stoking the flames of a Republican impeachment movement which exists only in their deranged and fevered political fantasies.  In short, the purely fictitious prospect of Obama's impeachment is the Democrats' favorite hashtag and flavor-of-the-month, and they cannot talk about it enough.

            It is a depressing commentary on the depths to which the Obama Democrats have descended that the best issue they can generate as the centerpiece for an important national election is the entirely contrived prospect of impeachment that is sustained and stoked by their own propaganda.

Thursday, July 17, 2014


               The persistence of falsehood is one of the most frustrating aspects of law, policy, and politics in our distorted and darkening age.  Among the left, the media, and a gullible general public, deceptive canards with no basis in reality are routinely paraded and assumed as fact -- producing grotesquely misconceived and unjust laws, policies, and decisions as a result. 

                Despite the facts that there has been no warming in the global climate for 17 years, the Antarctic icecap has been expanding extensively, and intrepidly honest scientists have stepped forward to dissent against doctrinaire and deceptive alarmists, rabid "climate change" fanatics continue to propound the illusion that the theory of catastrophic man-made global warming is "settled."

                The persistence of widespread illegal discrimination against blacks is taken for granted on the left and in the media and universities, when in fact federal and state governments have been relentlessly engaged, on the contrary, in pervasive and institutionalized discrimination in favor of blacks (under the guise of "affirmative action"), and to the detriment of whites, for over 40 years. 

                The pro-homosexual revolution is suddenly and widely accepted as innocuous in society, even while incontrovertible evidence of the dangerous, disease-plagued consequences of known homosexual behaviors lies ignored in the reports of the Center for Disease Control.  Just as one example, a 2010 CDC Fact sheet reported that "the rate of new HIV diagnoses among MSM in the U.S. is more than 44 times that of other men."  See http://www.latinoaids.org/programs/3mv/docs/FastFacts-MSM-FINAL508COMP.pdf.

                And an entirely fictional and patently illogical "war on women" is blazoned as gospel among large elements of the left and urban millennials, even while legions of female CEO's, Supreme Court justices, Presidential favorites, governors, and entertainment industry mavens obliviously expand their dominant roles in society.  (For more on this canard, see my last post, "The Female Achiever Who Exposed the War on Women over 40 Years Ago," at splashingrocks.blogspot.com).

                But few such canards are as persistently parroted, or as demonstrably false, as the undying, zombie-like fabrication that the death penalty is discriminatorily applied against blacks in the United States.  Unambiguous government statistics have demonstrated for decades that, on the contrary, the death penalty is disproportionately imposed on white murderers, and disproportionately avoided by black murderers.  The Justice Department's Bureau of Justice Statistics (BJS) most recent comprehensive report on U.S. death penalty statistics unambiguously confirms this once again, as the statistics in those reports have done for decades.  See Capital Punishment, 2012 – Statistical Tables (May 2014), http://www.bjs.gov/content/pub/pdf/cp12st.pdf.  But from President Obama to his media echo chamber to the liberal legal establishment, the chorus of racial agitators continues to propound this divisive and dangerous fallacy, against all evidence, for their own political and ideological purposes.

                The claim that the death penalty is discriminatorily applied against blacks goes back decades, but came to a head in the Supreme Court's crucial opinion in the 1987 case of McCleskey v. Kemp (reported at 481 U.S. 279).  In a 5-4 decision, the Court held that statistical evidence purporting to show that murderers of white victims were more likely to receive a death sentence did not establish that the death penalty had been applied in violation of the equal protection clause of the Constitution, absent evidence of a discriminatory purpose. Having drafted and submitted a successful brief in that case on behalf of the Washington Legal Foundation (WLF) supporting the State of Georgia's fair administration of the death penalty, I am intimately familiar with the case and the issues it presented.

                Even back when McCleskey was decided in 1987, the anti-death penalty element understood that official statistics simply did not support the claim that the death penalty was discriminatorily applied against black murderers, as compared to white murderers.  As we showed in our WLF amicus brief, BJS statistics showed then (as they do now) that a white killer was about 33% more likely to receive the death penalty than a black murderer.  That is, whereas only 12 blacks were sent to death row for every 1,000 blacks arrested for murder and manslaughter, a much higher ratio of 16 out of 1,000 whites arrested for those same crimes were sent to death row at the time of McCleskey

                Faced with these implacable numbers, the race-focused death penalty opponents adroitly shifted their theory.  They argued instead that the "system" discriminated on the basis of the race of the victim, rather than the race of the perpetrator. 

                Fortunately, albeit narrowly, the Supreme Court was not persuaded by this opportunistic sophistry.  Five members of the Court had the minimal sense to recognize that if there was no actual discrimination in the defendant's individual trial and sentencing -- and there was no such evidence in McCleskey's case -- any statistical "imperfections" in the collective outcomes of past capital cases could not alter that decisive fact.  A contrary result would have flown in the face of both logic and simple justice.  If McCleskey's arguments had prevailed, the trial of a capital case involving a white victim would be deemed discriminatory even before it had begun!

                What the Court did not also grasp was that the abolitionists' shifting their argument to base their discrimination claims upon the race of the victim revealed a circular fallacy in their reasoning. 

                In contending that there was unconstitutional discrimination because Georgia disproportionately imposed the death penalty in cases where the victim was white – presumably due to greater concern for such victims -- the abolitionists implicitly acknowledged that a nondiscriminatory system would have imposed the death penalty in greater proportions in cases where the victim was black.  But the vastly overwhelming majority of black-victim murders are committed by blacks.  If the "system" had sentenced a greater proportion of black-victim murderers to death – which the abolitionists' theory in McCleskey would require to negate victim-based discrimination in favor of whites -- it would also substantially increase the percentage of death penalties imposed on black perpetrators.  And then the NAACP, the ACLU, and other race-obsessed death penalty abolitionists would return to their claims that the death penalty discriminates based on the race of the perpetrator.  Heads we win, tails you lose.  Despite this circular flaw in their reasoning, the same race-based arguments that met defeat in the McCleskey case are still pursued today by those who have a vested interest in sustaining the myth that not only the death penalty but our overall system of criminal justice is permeated with anti-black racism.

                DOJ's latest compilation of death penalty statistics, however, refutes this racial canard even more conclusively than ever.  For roughly three decades now, whites have consistently received a disproportionately large number of death sentences in relation to their portion of the relevant population of homicide offenders, whereas the reverse is true with respect to black homicide offenders.

                The critical factor to remember in assessing the racial component of capital punishment in the U.S. is that the relevant population for purposes of proportionality analysis is not the overall population, but the population of those who have committed murder.  Under Supreme Court jurisprudence, and for all practical purposes, only those who have committed murder are eligible for the death penalty under the Eighth Amendment's cruel and unusual punishment clause. 

                Thus, the fact that blacks constitute only about 13% of the overall U.S. population does not mean that there is a discriminatory disproportion if significantly more than 13% of those sentenced to death are black.  But if blacks represented only 13% of those convicted of murder, yet represented a far greater percentage of those receiving death sentences, then there would be plausible grounds for claiming a discriminatory disproportion.

                In fact, however, data compiled by BJS shows that for the period 1980-2008, 52.5% of homicides were committed by blacks, whereas 45.3% were committed by whites. See BJS, Homicide Trends in the United States, 1980-2008 , Table 7 (Nov. 20111).  It follows that one would expect at least roughly comparable proportions along racial lines among those sentenced to death and executed.  But one would be wrong.

                BJS's 2012 Capital Punishment Report (Table 11) shows the number of U.S. persons executed by race since 1977.  During that period, 747 whites (56.6%) were executed, compared to only 451 blacks (34.2%).  To place the data in a more current context, the reported data for the 21st century (2000-2012) shows that 413 whites (57.2%) and 240 blacks (33.2%) were executed in the U.S. during that period.  In short, executions of white offenders dwarfed the number of black offender executions.

                The remarkable consistency of this government data strongly reinforces its validity as a comparative measure of how the U.S. criminal justice system applies the death penalty to white and black homicide offenders, respectively.  Whereas whites constituted only about 45% of homicide offenders over a period of roughly three decades, they constituted a far greater percentage, 57%, of those executed.  Blacks, on the other hand, constituted more than 52% of homicide offenders, but only about 34% of those executed.

                This consistent and straightforward data leads to but one conclusion:  Far from being discriminatorily applied against black homicide offenders, the death penalty in the U.S. has been consistently applied with far greater frequency against white homicide offenders.

                In the face of such overwhelming statistical evidence reported by the Obama Administration's own Justice Department, the fraudulence of the claim that capital punishment is discriminatorily imposed on blacks is plain for anyone to see.  Those who continue to perpetuate this canard in the face of such unambiguous data are engaged in the worst kind of racial exploitation, and should be exposed for the shameless agitators that they are.

Monday, July 14, 2014


         A bogus "war on women" has been employed as a political rallying cry of the left and its captive Democratic party for decades.

           The shrill feminist advocates of this canard are oblivious to the fact that this purported nationwide conspiracy to deprive American women of equal opportunity in education, business, and the workplace bears no relationship to current reality -- or to the simple logic of practical necessity in the American economy.

           The women who are supposedly targeted by this invidious discrimination are the wives, daughters, partners, sisters, nieces, and girlfriends of the males who are supposedly perpetrating it.  American families of all stripes are increasingly dependent upon the capacity of women, no less than men, to find, maintain, and succeed at jobs of all varieties.  The notion that the males of America are erecting barriers to the success of the very women on whom their children, and in many cases themselves, are so heavily and mutually dependent borders on the ridiculous.

                          Pioneer Female Drummer Who Didn't "Get" the War on Women

           Regardless, for almost a half century federal, state, and local anti-discrimination laws -- including Equal Pay legislation and Title IX-- have penalized employers, educational institutions, and governments not only for any deliberate discrimination against women, but also for entirely innocent practices that have any incidental discriminatory impact on women.  Having defended companies against such "disparate impact" claims during his years as a  litigator, SR can personally attest to the rigors of the sex discrimination laws and their cogency in forcing American companies to eradicate outdated vestiges of anti-female bias in the workplace and the executive suite.  Although sometimes over expansive in coverage, there is no doubt that these laws have facilitated and accelerated society's inevitable acceptance that artificial barriers against the entry and success of women in the workplace, arts, sciences, and professions simply makes no sense.  Equal rights for women are now an established legal and societal reality.  Far from waging a war against women, our nation's laws and policies have successfully waged a war on behalf of women.

           Perhaps the most striking and definitive refutation of the "war on women" mentality is found in the almost astonishing evidence of how females have surpassed males in gaining the crucial benefits of higher education.  A rather stunning assessment of this phenomenon published in Forbes in 2012 demonstrated that females began to surpass males in college acceptance and attainment in the 1970's and that female superiority in that respect has now reached stunning proportions.  See D. Borzelleca, "The Male-Female Ratio in College," Feb. 2012, http://www.forbes.com/sites/ccap/2012/02/16/the-male-female-ratio-in-college/.

          This report showed that females outnumbered males by 56.4% to 43.6% in public universities, and by 59.3% to 40.7% in private universities.

           Those stark figures indicate not only that the benefits of secondary education have favored females, but also that females will have a decided advantage in obtaining adult employment due to their superior educational attainment.  

            Women have also moved forward to a position of essential parity with males in entering such critical professions as medicine and law.  Women now constitute roughly half (about 47%) of those attending both medical school and law school.  In the law schools, moreover, women students are surpassing their male counterparts in attaining highly competitive positions on the elite law reviews, which are a ticket to the most desirable and lucrative positions in that profitable, if disreputable, profession.  The ABA's annual report on Women in the Law shows that 54% of those now selected for law review at the nation's Top 50 law schools are women.

            So much for the so-called "glass ceiling."  Women are doing just fine, and it looks as though it is the young males of America who need a bit of a boost, at least in terms of higher education admissions and attainment.

             But I digress.  Over 40 years ago, a young lady who was then pioneering in her own highly visible profession offered a more straightforward and unpretentious refutation of the more shrill proponents of what was then called the "women's lib" movement, and which now brandishes the false slogan of the "war on women."

             Anyone familiar with rock and pop music knows that, apart from vocalists or "lead singers," the instrumental positions in bands or groups are dominated by guys, and certainly were in the 60's and 70's. And no instrument was more of a male-dominated preserve than the drums.

            But entirely without fanfare or pretense, Karen Carpenter established her chops as a jazz, pop, and rock drummer starting at the age of 16.  She first played jazz drums with her brother and another partner in the group that won the prestigious Battle of the Bands at the Hollywood Bowl in 1966.  She then continued as the drummer in various iterations of the groups that ultimately evolved into the Carpenters, the best-selling American pop or rock group of the 1970's.

                            Lady Drummer in Action:  Karen Carpenter (from YouTube)

           Of course, Ms. Carpenter is primarily known as one of the great female vocalists of the 20th century, but she continued her role as an outstanding drummer for most of her career (which ended prematurely at the age of 32 due to the fatal effects of anorexia nervosa).  To the vocal disgruntlement of some of her male drummer peers, Karen Carpenter was chosen as the top jazz/pop/rock drummer in Playboy magazine's 1975 reader's poll. Popularity and name recognition undoubtedly played a large (and probably decisive) role in Ms.Carpenter's selection, but that is always a factor in such polls.  In any event, the Playboy honor validated Karen Carpenter's status as the undisputed pioneer of women drummers in popular music.

          Unlike many of her pop/rock contemporaries, Ms. Carpenter was not very political.  She was (like her brother Richard) reportedly a moderate Republican, however, and exposed herself to the scorn of many in the leftist/hipster musical coterie when she and the rest of the Carpenters provided the entertainment for President Nixon and West German Chancellor Willy Brandt at a White House dinner when the Watergate scandal was breaking.  She gave a charming little talk after the performance, in which she unabashedly declared what an honor it was to perform at the White House.

                         Carpenter working her Ludwigs at the White House (from YouTube)

        But what Karen Carpenter lacked in political sophistication she more than made up in common sense and personal conviction.  The so-called "women's lib" movement was much the rage in 1973.  With her prominent status as the first woman to achieve super-stardom as a pop/rock drummer, Karen was apparently approached from time to time to lend her voice to the chorus of feminists advancing the doctrine that women were the hapless victims of systemic discrimination in employment and career advancement.

        As evidenced by the following excerpt from a 1973 interview in Star magazine, Karen Carpenter would not take the bait.  Even in the male-dominated and testosterone-driven field of rock, jazz, and pop drummers, Ms. Carpenter was convinced by personal experience that a determined woman could succeed on her own initiative and drive.  As she explained to the interviewer in the disarmingly blunt and unsophisticated language of a self-assured young lady who had achieved enormous success in the harshly competitive environment of the U.S. recording industry:

          NANCY: You find the role for a woman changing> Do you see more opportunities for a girl to do things that she really wants to do?.

          KAREN: Oh yeah! But that's another thing...this bit about Women's Lib.  People always call me because they think that being a chick drummer, I'm a woman's Lib fanatic, and I'm not ! Besides, I don't know that much about what they're fighting for.  For myself, when I decided what I wanted to do, I went ahead and did it. Nobody got in the way. If they did, you had to figure out a way to get around them. I think anybody who has enough self respect and enough brains can do what they want to do and the bit about blaming it on somebody else is just garbage!   There's nobody that's going to stand in the way of somebody if they really want it - male or female!.

          NANCY: Good, I'm with you.

          KAREN: Its stupid you know, just because you're a girl...so what?.

          NANCY: RIGHT ON!.

          KAREN: We've got as much brains as anybody else. You see a lot of dumb guys around too! This bit about me being a successful girl drummerI'm not a successful GIRL drummer, I'm just a drummer that happens to be a girl that's happy! I have a ball!.

Quoted from "When I Was Sixteen," telephone interview in "Star" magazine, March,1973.

          Contemporary sophisticates are still locked in abstruse intellectual debates over the purported subtleties and complexities of the strangely illogical and counter-intuitive "war on women."  But over 40 years ago, a straight-shooting young musical pioneer from the suburban backwaters of Downey, California, cut through all the political sophistry to make the simple case that a determined woman could succeed on her own even in a male-dominated profession, thank you -- even while standing firm for the principle of female equality.