Court Update: Obamacare, Indecent Broadcasting and GPS tracking privacy

 As our readers already know, one of the primary purposes of the ACLP is to analyze and bring attention to important legal decisions of the U.S. courts, especially those at the federal and appellate level dealing with matters of constitutional import.  The last week has raised various cases on national issues worthy of comment. 

  The decision by the District of Columbia Court of Appeals upholding Obamacare in the 'Seven Sky' case

  With impeccable timing coming immediately before the High Court "officially" decides on whether to review the Patient Protection and Affordable Care Act of 2010 aka Obamcare, (the Supreme Court will decide tomorrow which cases of the lower courts it will review, and even more importantly, on what basis), yet another decision by the Federal Court of Appeals has found Obamacare constitutional, (making it 2-1 for Obamacare in the Court of Appeals with one circuit court of appeals, the Fourth, declining to decide the case on the merits due to its perceived lack of jurisdiction). 

  The latest decision by the D.C. Circuit came yesterday in the case of "Susan 'Seven Sky' v. Eric Holder," District of Columbia Court of Appeals No. 1:10-cv-00950 and was authored by federal Judge Lawrence Silberman, a Reagan appointee.  The ruling upheld a decision by a lower court dismissing a challenge to the controversial law's "individual mandate" as an excessively broad and unconstitutional violation of Congress' power under the "Commerce Clause" of the U.S. Constitution, and was the second time a lawsuit regarding Obamacare has resulted in a split from the expected outcome based upon the political affiliation of the justices involved, (once in striking down the law and once, here, upholding it. NOTE:  As an aside it might be helpful to note this frankly is how judicial appointees are supposed to function rather than simply as another of the 'political branches' of the U.S. government which otherwise might be tempted to yield to special interests and public opinion in reaching decisions; indeed, it is the reason the Founding Fathers wisely established so called "Art. 3" judges as lifetime appointments, although undoubtedly this is sometimes abused).

  The ruling of Judge Silberman, which was joined by federal judge Harry Edwards, a President Carter appointee to the federal bench, held that the powers of the government under Obamacare, particularly those relating to the "individual mandate" requiring all citizens purchase health insurance or be penalized by the IRS, do not exceed the powers given the government under the "Commerce Clause" of the U.S. Constitution.  (For excellent and more detailed legal analysis of the decision and precedents underlying it see here and here).

  As above alluded, it also illustrates the tendency of this controversial law to cross political lines and join strange bedfellows, (as previously illustrated by a decision in the Eleventh Circuit, which also failed to hew to the usual political lines of demarcation in American politics with a Democrat-appointed judge there joining a Republican-appointed judge in ruling Obamacare unconstitutional, see here).  Most saliently, the ruling highlights not only the necessity of the U.S. Supreme Court's resolution of this landmark legislation on which we have expressed our opinion previously, (see here), but the difficulty in resolving the thorny questions of constitutional law which the "Patient Protection and Affordable Care Act," as it's officially called, raises.

  The basis for the majority opinion in the D.C. COA Obamacare decision; A harbinger of the future?

  In its ruling the majority, tracking the prior decision by the Sixth Circuit Court of Appeals in June upholding the law, (see here), the D.C. Court of Appeals cited previous and at-the-time equally controversial rulings of the U.S. Supreme Court in the early commerce clause case arising out of the FDR Administration's 'New Deal' laws Wickard v. Filburn, as well as decisions upholding the 1960's Civil Rights Act(s). 

  However, in perhaps a harbinger of things to come, in citing the relevant "commerce case" precedents in ruling on the primary matter at issue here, the Court less than convincingly concluded regarding the individual mandate, "It certainly is an encroachment on individual liberty, but it is no more so than a command that restaurants or hotels are obliged to serve all customers regardless of race ... or that a farmer cannot grow enough wheat to support his own family," (from decision in case "Susan 'Seven Sky' v. Holder, District of Columbia Court of Appeals No. 1:10-cv-00950, pp. 36-37, slip opinion).

  A disssent by Judge Brett Kavanaugh, a George W. Bush appointee, emphasized a perceived lack of jurisdiction based upon the view that the "penalty" for failure to comply with the individual mandate to purchase health insurance was actually a "tax," which would bar the federal courts from rendering a decision until the actual penalies under the law kick in after 2014 under the 'Anti-Injunction Act,' adding, "We should hesitate to unnecessarily decide a case that could usher in a significant expansion of congressional authority with no obvious principled limit."
 
  The good, the bad, and the ugly of the D.C. Circuit's beg-the-question and less-than-confident ruling

  However, as others have noted, (some of whom I cite here), there is some "good" news in the Court of Appeals decision, (if the D.C. Circuit's decision is even relevant at this point in light of the certainty that the Supreme Court must already in some fashion resolve the constitutionality of the controversial law due to the split in the views of the Sixth and Eleventh Circuits on the "individual mandate," as pointed out here).  And the "good" news is this:  Although the majority did in fact uphold the law, it was clear it did not do so on any clearly articulated legal basis, or a fervent belief in the innocuousness of the sweeping legislation and its admittedly pervasive impact on the liberty of every man, women and child in the nation (and its inherent regulation of almost any activity a citizen could do (or not do!) that could potentially impact interstate commerce in the aggregate), but at least arguably due to the court's inability to discern from constitutional writ or the court's prior precedents what precise criteria should be applied in establishing the proper limits of the commerce clause's reach.   Again, quoting from the majority decision:

We acknowledge some discomfort with the Government’s failure to advance any clear doctrinal principles limiting congressional mandates that any American purchase any product or service in interstate commerce. But to tell the truth, those limits are not apparent to us, either because the power to require the entry into commerce is symmetrical with the power to prohibit or condition commercial behavior, or because we have not yet perceived a qualitative limitation. 

SUSAN SEVEN-SKY, ALSO KNOWN AS SUSAN SEVENSKY, ET AL., APPELLANTS v. ERIC H. HOLDER, JR., ET AL., APPELLEES, District Court of Appeals decision No. 1:10-cv-00950, p. 33, slip opinion, download pdf of the full COA decision by clicking here).  

    Most alarming is the D.C. Circuit's open conclusion that the Commerce Clause allows the federal government to constitutionally require the purchase of "any product or service," (see above).

    In doing so the court clearly bought into the same sort of sweeping conclusions as the Sixth Circuit did previously that are not at all clear to us, (even if they were to the Democratic-controlled U.S. Congress at the time of passage, i.e., "Because virtually everyone will, at some point, need health services, no one is truly inactive, and the health services market is inextricably intertwined with health insurance... those who do not purchase health insurance, and instead self-insure, almost inevitably take health care services they cannot afford," Seven Sky, supra, p. 25, slip opinion).

    Our response to the "Everybody does it" argument put forward by the laws proponents and District of Columbia decision

    Again, as others in the blogosphere have aptly noted in various other ways, the "everybody does it (i.e. 'needs it' ) argument is clearly not true if a seemingly perfectly healthy person dies in his sleep at a young age of a massive and inexplicable heart attack having never used the national "health delivery system" previously, (stranger things have happened!), or a person of exceptionally good health and frugality lives his whole life having paid "cash only" for incidental visits to "fee for service" clinics for such things as minor infections, the flu, etc., and then throws himself off a cliff into a river to be eaten by crocodiles, (ending his life with an almost non-existent footprint on the "national" health care system).

   While such incidences of health care useage may be the exception and not the rule, (although we have not seen any hard data either way on the matter), and one might perhaps object, "but such isolated incidences are not the usual case and shouldn't be used to swing the debate one way or the other," our reply is that our citing such hypothetical and "isolated" examples is only necessary, and indeed, expressly justified in response to proponents of Obamacare themselves routinely including "everyone" in their contrary and just as hypothetical "everybody must significantly use the health system at some point in their life" argument.

   Indeed, it seems to us here at the ACLP that if proponents are going to use such an extremely inclusive argument which explicitly relies on the assumption-posed-as-fact that "everybody" eventually uses the health care system in such a way as to necessarily negatively impact the "commerce" of the entire nation, it is entirely legitimate for opponents of Obamacare to point out that, in fact, that is not the case (or, in other words, proponents are just plain wrong on the facts).

   One of the most interesting facets of the D.C. court's Seven Sky Obamacare ruling; The Dissent

   However, one of the most interesting features of the D.C. Circuit Obamacare decision, (other than the rejection of the "religious rights" challenge to the law, see below), is that from the perspective of legal interpretation the dissent's rationale that the "penalty" in the law is, in fact, a "tax," was the same rationale originally urged but eventually abandoned by the Obama Justice Department in defending the law in this case (a tactic they also employed before the Fourth Circuit which upheld the dismissal of a suit attacking the law partly on this basis, see here for an overview of the Fourth Circuit decision, click here to download actual decision). 

   Of course, legally speaking, it matters not that the Obama Administration, in attempting to procure political favor with the public for its plan and then, failing that, deciding to use whatever tactics were necessary in pushing the law through Congress anyway, (see here or here), repeatedly and emphatically claimed that the individual mandate-- and the penalties imposed for failing to comply therewith-- was not a tax! 

  But such an interpretation of the 'Anti-Injunction Act' could, in the absence of a concensus on how to resolve such issues by the Supreme Court, potentially be the basis on which the High Court, at least for the time being, upholds the law, (rather than immediately resolving it, as they say, "on the merits"). 

   Does the Court of Appeals Ruling increase the likelihood the Supreme Court will 'punt' on the merits?   

   From the perspective of the 26 states embroiled in litigation with the federal government over the difficult (and expensive!) implementation of this behemoth law, this could result in a very costly delay in procuring a ruling on the ultimate constitutionality of the law, (during which in the intervening time in "limbo" the states would be obliged to enforce and implement this sprawling legislation). 

   Of course, the Supreme Court knows this-- raising overall the probability that the High Court will, in fact, find a way to get beyond the "Anti-Injunction Act" argument to a substantive ruling on the merits of the constitutionality of the law itself under the Commerce Clause-- but that doesn't mean the D.C. Circuit's decison isn't still enough to suggest a potential logistical nightmare sufficient to give all states, as well as the state plaintiffs to the various challenges to the law, a painful case of political and legal indigestion in the meantime.  (Not to mention dash the hopes of states' rights advocates and libertarian interest groups of a chance for the High Court to re-examine its Commerce Clause jurisprudence with an eye to a possible "retooling" of its precedents that would reign in the power of the federal government over the states generally and breathe life into the Courts application of the 10th Amendment).

   First Amendment religious freedom arguments given short shrift in upholding trial court's dismissal

   Finally, as above noted, the D.C. Circuit upheld the dismissal of plaintiff's claims re: a violation of their rights under the Religious Freedom Restoration Act.  Since the appeals court failed to reach the significant merits of the religious rights claim and such a claim, and its arguments, may be relevant to further legal action on remand if the Supreme Court reverses the decision without reaching the merits of the law's constitutionality under the commerce clause, (an improbable but possible outcome), we address it here for the benefit of our readers in line with our .

   Such claims by the Plaintiff's-- one of which included Susan 'Seven Skye,' a native American who ostensibly adheres to traditional native American medicine and eschews modern medical treatment-- are of particular interest for the implications of not just traditional Native American practitioners but those of other minority religious faiths, (such as Jehovahs Witnesses, whose legal actions in defense of their beliefs against vaccinations almost single-handedly are responsible for the "religious exemption" now enshrined in most states' "mandatory vaccination" laws).  

   Indeed, such a scenario is particularly apropos, we think, to the discussion on Obamacare not only for the important religious freedom claims it raises under the First Amendment, but for the overlapping ground it shares with OC by virtue of the distinctly "states rights" nature of mandatory vaccination laws, (which few would argue don't squarely fall in the province of the individual states' "police powers" to regulate conduct for the health, welfare and benefit of their citizens, a power which, at least until now, has expressly been reserved to the states absent explicit constitutional grant of authority to the national government in our federal constitution of enumerated and limited powers).  And that, in essence, is the ultimate "rub" to all of this.

   No articulable legal basis on which to uphold any limits to Feds power under Commerce Clause according to D.C. Court of Appeals decision and ObamaCare proponents

   Indeed, proponents to the sweeping legislation known as "Obamacare" have yet to come up with a principled and articulable argument to defeat Obamacare's opponents' concerns that if the government can coerce citizens under the commerce clause into buying as commercial and personal a product as health insurance, and further determine the sorts of services and terms under which those health "services" are delivered, there is virtually no personal conduct or activity which the government might not next claim has an "aggregate impact" upon interstate commerce in some way which means our republican form of government based on a rule of law of enumerated and limited powers has ceased to exist. 

  Wickard v. Filburn: A short primer of a tortured legal case and its inevitable result

  Along those lines it is important to remember that, in the seminal 'Wickard v. Filburn' case from 1942, (which is still valid law as shown by its extensive citation by both the Sixth and D.C. Circuit decisions), the farmer in that case was forced to throw his excess wheat he grew onto the ground to rot rather than feed it to his own family on the basis that he would otherwise have to buy his family's food on the open market and thus impact in aggregate the "interstate commerce" of the national (and/or international?) wheat market! 

   It does not take a legal scholar to tell that if the government can apply the same reasoning of Wickard in regulating something so personal as health care, (which the Supreme Court has said again and again is a person's autonomous right to refuse outright if he wishes), there is nothing the federal government can't force you to buy or do.  (The oft-cited example of forcing someone to "eat their brocholli" has often been mocked as a ridiculous paper tiger by supporters of Obamacare, even as they cannot refute the logic of such concerns; From our perspective however, with the contemporary emphasis and increasing obsession of health and governmental authorities on the "health risks" and costs to society of obesity vis a vis its increased risk of heart disease, stroke, diabetes, etc. etc. already resulting in national changes to the school lunch program, laws against salt and transfat use in private restaurants in New York City and other places, and banning of soda sales in public schools, we don't think such "regulation creep" is so far fetched as proponents of Obamacare claim).

   Case Two: CBS News, the FCC and the case against public lewdness vis a vis the Superbowl 'wardrobe malfunction.'

   In other news, a divided Third U.S. Circuit Court of Appeals has thrown out the roughly half million dollar fine levied against CBS following its public broadcast during the 2004 superbowl of Janet Jackson's bare right breast during the infamous alleged "wardrobe malfunction" in a tawdry dance scene with Justin Timberlake which was viewed by millions of children during daylight hours over free airwaves. 

   The Court held that imposition of this fine was an "arbitrary and capricious" departure from a supposed "Thirty year record of non-enforcement" of "fleeting" nudity in other cases by the FCC.  (While we don't pretend to be experts in this area of the law and time fails for a searching analysis of the court's reasoning and the precedents on which it relies), we fail to see the salience of this any more than the Google TOS we all agree to in opening a google account, (ya know, something about failure to enforce any provisions of the contract do not "waive" or give up Google's rights to do so in the future?).  Of course, I suppose that the really, really smart men in robes know better, (because we all know that wearing a black robe makes one a better arbiter of such matters! ;)   However, another aspect of this long-tortured case deserves mention.

   In the procedural labrynth that has become the hallmark of this case in the years ensuing since the 2004 incident that would give even the most detailed and erudite legal watchers whiplash, perhaps the most interesting twist in this long running case is that the fine imposed in this case had previously been vacated by the Third Circuit and then re-instated after a 2009 case in which the U.S. Supreme Court upheld the FCC policy as "rational" in another appeal, resulting in the Janet Jackson case being sent back to the Third Circuit for further proceedings.  It was these "further proceedings" which resulted in the most recent decision.

   Although we have our doubts from the vague comments of the FCC following the most recent decision that it would use "all the authority at its disposal" to ensure that broadcasters serve the public interest when they use the public airwaves, (as well as the Obama Administration's more liberal stance towards such matters overall compared to the Bush 43 Administration), we urge the FCC to appeal once again to the Supreme Court so the independent ability of the FCC to enforce common decency can be upheld. 

  In the meantime, (as if that's not confusing enough!), the Supreme Court itself is set to rule on the overall constitutionality of the F.C.C.'s policy in another case out of New York, making at least a stay of the Third Circuit's decision reasonable.

  We hope and pray that the Supreme Court will help, and not hinder, the regulation of the culture's unmitigated assault and sexualization of our nation's youth that is unrelenting in todays' media by whatever decision they ultimately reach.

  Case three:  The Supreme Court's seeming unease with unmitigated, warrantless GPS tracking of the public

  Finally, the Supreme court, in opening arguments yesterday regarding GPS tracking of suspects' movements by the government without any court oversight whatsoever, the High Court seemed troubled at the prospect of the government affixing GPS units to privately-owned cars without first obtaining a warrant or having any probable cause that the vehicles or persons involved were actually involved in illegal activity.

   Indeed, in intense questioning regarding this practice, (which we previously reported on here), the Supreme Court seemed taken aback by the Solicitor General for the United States' assertion that the government could legally, if it so desired, even place tracking devices on the justices own private automobiles for extended periods of time without any court oversight at all under the Fourth Amendment. 

  Needless to say, we think it fairly safe to say that, from all appearances, the Supreme Court is not willing to go quite so far as the Obama Administration is urging it to in this "brave new world" of technology in which we live, (which is, to us, a good thing). 

  We will continue to keep you apprised of important developments in these critical areas of law which effect all our lives as citizens in the greatest nation on earth, the good ol' United States of America!  jp

Seventh Circuit Court of Appeals Rejects Law Suit to Strike down National Day of Prayer

  The Seventh Circuit Federal Court of Appeals recently rejected a law suit by secular progressive group "Freedom from Religion Foundation" and various individuals to have the National Day of Prayer declared "unconstitutional" as a violation of the "Establishment" clause of the Constitution, (see text of original complaint here).  The holiday-- recently celebrated by gatherings of millions on the first Thursday in May under a 1988 version of the law first passed by the Truman Administration in 1952-- focuses on national prayer and re-dedication to God as well as remembrance of the critical and historic role that the Christian faith has played in our nation's formation and public life.  Of course, the fact that setting aside a day for "national prayer and repentance" goes back to the earliest days of our nations's founding, (and even before, see here), didn't keep the atheist "public advocacy" group from filing a suit in 2008 that resulted in 2010 in a Federal District judge in Wisconsin ruling that the law was an "unconstitutional" violation of the oft-misunderstood concept of "Separation of Church and State" under the Constitution's "Establishment Clause."  That ruling was just vacated (thrown out) by the Seventh Circuit Court of Appeals in a ruling that the atheist Group lacked "standing" to bring the suit in the first place.  But the lower court's ruling would have come as a surprise to our nations first president George Washington, who on June 20, 1775 publicly proclaimed the following:

... Congress having recommended it to the United States to set apart Thursday the 6th of May next to be observed as a day of fasting, humiliation and prayer, to acknowledge the gracious interpositions of Providence; to deprecate [to pray or intreat that a present evil may be removed] deserved punishment for our Sins and Ingratitiude, to unitedly implore the Protection of Heaven; Success to our Arms and the Arms of our Ally: The Commander in Chief enjoins a religious observance of said day and directs the Chaplains to prepare discourses proper for the occasion; strictly forbidding all recreations and unnecessary labor.” —George Washington, First President of the United States.

  Indeed, the ruling by the Court of Appeals-- for what is essentially a "technical" reason-- means the appellate court has not reached the merits of the case, and leaves things as if the lower court never issued a decision. 

  While we don't agree with the lower court decision, we do think the ruling on "standing" by the Court of Appeals is erroneous, as the district court made a clear distinction in its decision between the lack of standing to attack Presidential proclamations, (which a citizen or citizen group generally doesn't have), and an attack on the constitutionality of a statute for purposes of "declaratory relief" which the citizenry generally does possess if it can show "harm" resulting to them from the law in question.

 The atheist foundation has vowed to seek reconsiderion by all the justices of the Seventh Circuit sitting simultaneously, (known as "En Banc" reconsideration).  Such motions ordinarily are rarely granted in all but the most important cases.  In this case however there are arguably important public policy reasons for such a motion to be granted, including a more substantive ruling on the merits of the foundation's claims, (something which could actually benefit a more 'traditional' understanding of the much ballyhooed "Separation of Church and State" doctrine that prevailed since our nation's founding and throughout the late 18th and 19th Centuries under the "Establishment Clause".)  That could happen if an 'En Banc' decision by the entire Seventh Circuit on the merits upholds the law and results in a strengthening of the nation's right to public expressions of its religious heritage.

 The ACLP doesn't believe that even if a rehearing 'En Banc" is granted it will, on balance, result in a change of the final outcome in the case, and for that reason believes reconsideration will most likely not be granted.  That does not mean however that the issue is cut and dried by any means for the above-mentioned public policy reasons. 

 Complicating the matter is the fact that however we may disagree with the District Court decision it cannot be denied it is a well reasoned-- and in many respects, arguably correct-- application of precedent re: "Establishment Clause" jurisprudence, (particularly regarding prior appellate cases attempting to apply the rulings of the U.S. Supreme Court on such matters, which are tortuously complex and even seemingly contradictory at times, especially when going back before the mid-twentieth century).  

 Indeed, it should not surprise us that the federal courts-- including the nation's highest court-- are likely to closely split on such issues of intense public debate, (a sad but not surprising commentary on the irreligious times in which we live and the poor job our public educational system is doing teaching American history and civics).

 Nevertheless, the fact that the present makeup of the nation's highest court-- with several new(er) members appointed by both the Obama and previous Bush Administrations-- may wish to take the opportunity to clarify its precedents in this area is a strong reason to believe that the whole Seventh Circuit may weigh in first before an ultimate determination of this issue before the high court, (if the high court even takes the case, which they usually don't).  In that regard, it is a perfect "test case" for how the Supreme Court may view such matters going forward, and we accordingly hope that the Seventh Circuit will in fact agree to reconsider this case "En Banc" as it raises significantly the chances the High Court will review it also, (with the end result hopefully bringing some clarity/ sanity to this conflicted area of the law in favor of the more traditional view). 

 We will keep you apprised of this case even as we are watching others of critical interest, most specifically the proceedings in the 11th Circuit Court of Appeals where an Obamacare appeal is pending and the government has until May 18th to file its reply brief to the State of Florida along with 25 other states and the National Federation of Independent Businesses, (NFIB), who are challenging this sweeping expansion of federal power.  You can read the initial brief of the various states in that momentous appeal winding its way to the Supreme Court here.  

 Like the Obamacare case(s), if in fact the Freedom from Religion Foundation's case gets to the Supreme Court, its importance cannot be overestimated, as it has the potential of completely turning on its head almost a half-century of what we feel are court decisions that have too far tipped the balance towards hostility to expressions of religious faith in the public square, often with lopsided or ridiculous results, (remember the case that said you could display a Menorah or Creche scene on public property as long as there were significant "secular" symbols of Frosty the Snowman and Rudolph?)

 Indeed, if the case is resolved 'En Banc' by the Court of Appeals on its merits-- rather than the technical grounds on which the Seventh Circuit has already reversed the District Court-- and subsequently appealed to the U.S. Supreme Court as it is most certain to be by the losing party, (assuming it ultimately gets accepted by the High Court for review, only about one percent do), it would be on par with the Obamacare cases to the extent it could be just as earthshaking but in the area of Religious Freedom/ First Amendment jurisprudence, (and much longer in coming!)  We say, about time!   jp

President bows to Turkey, breaks campaign promise to acknowledge Armenian Massacre, Fails to Acknowledge National Day of Prayer

  As reported in the Armenian weekly, Despite his 2008 campaign promise that "America deserves a leader who speaks truthfully about the Armenian Genocide and responds forcefully... I intend to be that President," for the third year in a row President Obama completely ignored this first genocide of the 20th Century-- much to the Chagrin of the Armenian community and the attempts by Congress to acknowledge this pivotal and tragic turning point during and just after world war one-- that many say was the forebear and model for the way Hitler would treat the Jews in the 1930's leading up to WWII.   He also failed to issue an official proclamation marking America's National Day of Prayer or even Easter, the traditional national holiday marking resurrection of Christ for millions of Americans of all ethnic backgrounds and historic day of prayer for the victims of the massacre which saw up to 1.5 million Armenians slaughtered, raped and/or marched into exhaustion in the Syrian desert by their Muslim Turkish captors, (the forebears of modern-day Turkey).

  Initially, we should say that while the debate rages in the blogosphere on whether previous Presidents in fact issued "official" proclamations re: Easter and to what extent other comments of the President may have honored this sacred holiday in spite of his lack of official proclamation-- and in spite of his almost unbroken proclamations re: Muslim Holy days, see here-- whether or not Obama issued an 'official' proclamation matters less to us than the Administration's policies vis a vis their impact on matters where faith and public policy intersect and the results therefrom.

  On this score, and regarding the matter of the Armenian massacre, the President's actions seem like a deliberate slap in the face to the Armenian community for purely political purposes in order to appease Nato Ally in the "war on terror" Turkey, (which had protested and mounted a forceful and political public relations effort to defeat the attempts to publicly recognize this black mark of history).

  It is a whole 'nother matter regarding the pro or anti-Christian bias, (although, as above alluded to, we feel there is a connection between the two).  Again, we wish to emphasize that it is not the failure to "proclaim" anything  particular with regard to any specific religion or holiday 'per se' that we find so troubling, but the anti-Christian attitudes and policies that such a lack of proclamation may indicate are at the root of the Administration's actions (or lack thereof).

  Equally troubling, it seems to us to mark a continued pattern of willingness on the part of Obama to avoid having to make a public stand on important policy issues-- recall his voting 129 times "present" in the Illinois Senate from whence he came, see here and here-- and starkly belies Obama's promise to be "the most transparent Administration in history."  

   Moreover, in light of the President's failure to also acknowledge last Thursday's National Day of Prayer-- a practice recently upheld by the Fourth Circuit Court of Appeals, see HERE, and on which no Previous Presidents have demurred-- as well as many of his openly anti-Christian policies, it does not appear to be coincidence.

   So with this post we shall begin a journey of analysis that attempts to explain Obama's obvious reluctance to take the side of the traditional Christian mores in most all matters of public controversy, (whether it be gay marriage or abortion or stem cell research).

   We should say at the outset that the President's overall conduct and/or foreign policy inaction-- a la the President's delayed intervention in Libya, see here-- cannot sufficiently be explained by mere 'political' factors.  If that were the case, we could expect to see more forceful proclamations--  accompanied preferably by active intervention-- of the Obama administration in the case of other genocides around the world such as in Syria or Sudan, see here, which to the world's (and America's) shame have been largely ignored.

   Indeed, in examining the myriad of possible reasons for this "blind eye" of the President's towards hotspots of the world where Christians are being persecuted horribly one answer for the President's inconsistent reaction routinely arises: That he just isn't very sympathetic towards people of the Christian faith due to his lack of devout faith itself.  Indeed, none other than Franklin Graham, the son of world renowned evangelist Billy Graham and current President of non-profit Samaritan's Purse Ministries, have noted the President's seemingly nominal Christianity, see here.

   But while this explanation might go a long way towards explaining the President's attitude towards public expressions of opinion on matters of Christian faith generally-- as could also be said of President Clinton whose 'faith' it is safe to say was also less than devout and who also coincidentally failed to issue proclamations re: Easter along with most other modern President's, although not so the National Day of Prayer--  it still doesn't explain the seeming and persistent outright antithesis towards a pro-Christian, (or Jewish for that matter) perspective in most domestic and foreign affairs.  Indeed, from 'apologizing' to Muslim countries for "America's arrogance" to his domestic pro-abortion policies, it is almost like the President goes out of his way to diss Christian values and traditions, (often in favor of those of Islam).  This is even more evident when one considers that Obama didn't fail to publicly acknowledge the observance of all major Muslim holidays in 2010, Ramadan, Eid-ul-Fidr, Hajj, and Eid-ul-Adha.

  Whether this is due to experiences and influences as a boy growing up in Indonesia-- which included the sound of the Muslim "call to prayers" that Obama described in his book 'Dreams of my Father' as "one of the prettiest sounds on earth at sunset"-- his being a "closet Muslim" as alleged by some, see also here or, as Franklin Graham theorizes, is simply non-devout, the public policy results can hardly be doubted:  There clearly appears to be a distinct, anti-Christian, (and/or anti-American?), bias to the President's foreign (and domestic) policy positions.

  Indeed, from repeal of 'Don't Ask Don't Tell' in the military to his unilateral decision not to defend the Defense Of Marriage Act to his not allowing evangelical Christian groups to pray at the Pentagon, see here, the President Obama's antithesis towards matters of faith and, indeed, the entire Christian 'world view' as expressed in his policies, is obvious, (even if the entire reasons are not).

  In Dinesh D'souza's book "The Roots of Obama's Rage," he theorizes that Obama's anti-Christian/ Anti-American bent is in fact caused by a deep "anti-colonial" hatred for the West passed on to him from his Father and Grandfather before.  Such influences, joined as they are with memories of subjugation often blended with Christian missionary influences-- in the minds if not in reality for many members of the former African colonies-- would certainly explain Obama's reluctance to take the "pro-Christian" view or become involved in foreign affairs and even domestic policies where Christian religion or influences are implicated.

  Of course, the problem with this is that almost all American institutions are-- and for the most part continue to be in spite of liberal progressives' most ardent efforts to the contrary-- infused with our nation's founding Judeo-Christian roots and beliefs; indeed, from the Mayflower Pilgrims to the Declaration of Independence to our nations laws and monuments, the history of America and its abiding principles of freedom, justice, and the dignity and worth of every person made in God's image just don't make sense apart from the Christian faith, (however much a proper understanding of this has been erased in the minds of the present generation, another topic for another day).

  In any case, such an approach as the President exhibits is sure to promote the roots of injustice and genocide generally in the modern era, as it supplies a potent motive for "revenge" and the continuing of barbarism on a whole different set of peoples not responsible for the "sins" of their fathers and denies the dream of equality across racial and/or religious lines.  A Dream hoped for by none other than American visionary and slain civil rights leader Martin Luther King who spoke of the need-- if ever different races and/or religions were to get along in a just society-- for people to no longer be "judged by the color of their skin, but by the content of their character."  NOTE: Yes, we do realize that race and religion are distinct matters and that Dr. King was speaking-- as a Baptist himself-- from a predominantly 'Christian' point of view, (indeed, as his famous "letter from Birmingham" shows, it was his entire impetus for speaking out against racial segregation).  However, as herein shown, (witness Sudan), sometimes, race and religious belief sadly coalesce.  In any event, we are sure Dr. King wouldn't mind as, in his own words from the Birmingham jail, "injustice anywhere is a threat to justice everywhere."

  To that end, we ask that all our readers please pray for President Obama in accord with your religious tradition.  Whatever the devoutness of his Christian faith, (or lack thereof), our country can only be better off for our prayers.  Perhaps it might lead to a badly needed "spiritual rebirth" or awakening in our society generally or on behalf of our President that might move him to a more balanced and helpful view of things to the salvation of many souls, (in the temporal if not the eternal).   Failing that, in the least perhaps our prayers (and accompanying actions) might be successful in removing his administration from power in 2012 if he will not change his evident policies of blocking justice for victims of genocide and Christian values generally for mere political reasons.    jp

Baby Joseph given a reprieve, re-ignites debate over Obamacare health rationing

The baby at the center of what has become an international flash-fire debate on the right to life and to what extent public authorities (as opposed to individuals and families) should decide who lives and dies and “merits” the graces of the government to receive medical treatment that may prolong their life has received a reprieve and reignited a debate on the risks of health care rationing in modern industrial societies increasingly turning to socialized medicine.

Joseph Maraachli, the son of Moe Maraachli and Sana Nader who originally only wished for their son who suffers from a genetically rare disorder to be given a tracheotomy-- a common medical procedure whereby a breathing tube is inserted to enable breathing by a person who is temporarily unable to breathe through their mouth-- in order to allow him to return home with them and die a peaceful death as his sister who had the same disorder did 7 years ago. (Regarding the tracheotomy itself you'll recall the same procedure was performed on Congresswomen Gabby Giffords after being shot in the head by mentally deranged gunman Jared Loughner in the Tuscon Shootings, see Dubya Dupnik post, Dec. 10, 2010 on this blog).


However, under Canada's social medicine system London Ontario's “Health and Science Center,” a regulated health provider in London Ontario, Canada had refused, claiming the operation would be a "futile" waste of resources on the boy who they claimed was in a terminal “persistent vegetative state.”


Moreover, eager to pull the plug, they went to court in an effort to procure an order to force the removal of all medical assistance from the child resulting in issuance from the London Ontario Superior Court of a court order for the parents to “consent to the removal” of their child's breathing tube. This is where international charitable and right to life organization Priests for Life came in.


PFL began a focused social media effort highlighting such heavy-handed tactics and open contempt of the boy's parents to determine the appropriate treatment for their son and moreover, seemed to force them to violate their consciences by ordering them to “consent” to ending their child's life. (Indeed, such tactics call to mind the tragic Florida case of Terry Schiavo, an American, who, upon expressing intentions to leave her relationship with her husband Michael whom her parents, best friend, and some medical evidence suggested had been abusing her, see here,  and here, mysteriously ended up dead after the suspicious collapse of Ms. Schiavo which was originally assigned to be investigated by homicide detectives got "bumped down" by a police commander who had interestingly donated campaign funds to the Florida judge who ruled over the matter, see here).  Although I realize this may seem a slight digression from the baby Joseph story give me a moment and I'm sure you will see the connection.

The dangers of giving government too much power over health care- The Terri Schiavo and baby Joseph Stories 


  Although widespread media accounts listed the reason for Terri Schiavo's collapse as due to being caused by a "heart attack" brought on by the eating disorder bulemia, not so widespread were the facts of various ongoing state investigations into her husband's alleged abuse which were halted by the court, see here, and the fact there was no way for doctors to conclusively determine the cause of Terri's "heart attack" at the time in light of her husband's absolute control over her medical care and his obstructions of any procedure that could possibly rehabilitate Terri or yield more definitive answers about her sudden collapse.


  Indeed, it was only after her death that an autopsy conducted by Pinellas County medical examiner Jon Thogmartin determined that rather than a heart attack her collapse had been caused by an “external problem outside of the heart causing the heart not to beat,” (see investigative report of the North Country Gazette here).  Moreover, and even more ominously,

       "The autopsy performed in 2005 also definitively ruled out that Terri Schiavo had bulimia as Schiavo has long claimed. The autopsy report states that there was no evidence of bulimia and the assumption of bulimia presented at the medical malpractice trial had simply been accepted and not challenged. The medical examiner said there was absolutely nothing to support the theory of bulimia as presented by Michael’s attorneys. He also ruled out the 15-year fallacy presented by the mainstream media and Michael Schiavo that Terri had sustained a heart attack, saying that her collapse was the result of an “external problem outside of the heart causing the heart not to beat”. He said there was no evidence that she had had any heart problems prior to her collapse and said that the fact she lived 15 years after her resuscitation was testimony to the strength of her heart"- North Country Gazette Feb 5, 2009, see here for article, for results of a more complete and subsequent medical/neurological examination of Ms. Schiavo see here.

  Indeed, the paucity of evidence that Terri suffered from bullimia or any other condition that could have caused a heart attack as she is alleged to have had-- amidst competing suggestions she could have been poisoned-- contrasts sharply with the almost universal concern over Michael Schiavo's near malevolent attitude and conduct in the case, see here.  


  In addition to a former girlfriend of Michael's who plainly stated  under oath that he lied about knowing Terri's end-of-life wishes-- aside from the fact Terri's life was arguably far from "ending"-- and that he only cared mostly about monetary matters, (see here), his possessive and/or possibly abusive nature was attested to by multiple parties in sworn court documents, (see portions of statement of witness Cynthia Shook here, in addition to the sworn statements of at least two others close to the case regarding Mr. Schiavo's callous attitude towards the wife he allegedly "loved" and was legally obligated to protect as her "guardian" here and here).  NOTE: while the purpose of my mention of these things here is not to comprehensively examine all the possible motives, claims and counterclaims of all parties of the Schiavo case, something which would take a much longer discussion, (but see here and here)-- in the end as persuasive as all this is we must admit that we do not and may never know the whole truth regarding this case-- I do believe that in the very least it provides an apt example of the failings of the legal system to protect the rights of the most vulnerable among us and/or always err on the side of caution when it comes to the health-care and due process rights of those unable to speak for themselves.

  Indeed, regardless over the disputed facts and legal outcome in this case, there is little doubt from the record that Terri Schiavo was left in an entirely vulnerable state at the mercy of a husband who, in the most charitable light, had a conflict of interest by virtue of his desire to marry one of the many women he had had affairs with during his marriage to Terri and whose conduct throughout the ordeal suggested a less than pure interest in Terri's welfare, see here, here and here).  (Indeed, he had openly fathered a child with another woman he later married while Terri lay in the hospital, see here and here for details).  And again, while our focus here is on the tragedy of rationing that can occur in such cases vis a vis their relation to the case at hand, we would have been remiss not to mention the Terri Schiavo story for its potential relevance.   


  In short, I detailed the Terri Schiavo story here, as, just in the baby Joseph case, I believe it reveals the dangers of giving anyone-- including a government who in the end could do nothing to insure either a searching examination and/or accounting for all the irregularities in the case OR the right to life of Terri Schiavo-- too much power to decide when to end someone's life and/or cease providing medical care, (often the same thing in critical cases), based on often incomplete or conflicting medical "facts" and for other than altruistic reasons, (i.e., economic). 


 While we leave for another article the general debate on what has become an almost macabre "culture of death" in many states of the Union, it appears as if the baby Joseph case is on its way to a happy (at least as happy as can be) ending.   


Thankfully, with the decision to accept baby Joseph by American and non-profit St. Louis-based Cardinal Glennon Hospital, a children's health organization dedicated to improving the lives of all its patients to the best of its ability, baby Joseph now won't go “quietly into that good night” without giving him every benefit of a medical doubt. (Indeed, let's face it, even doctors don't ALWAYS know why a patient recovers and can't say with certainty whether a person, even a gravely ill one, will live or die; indeed, they have been wrong before, even with those in long term comas, Click here for proof ).


But politically speaking, the case could not have come at a worse time for President Obama and the left wing of the Democratic party who have been engaged in an ongoing public relations campaign to shore up support amongst an increasingly restive American electorate over Obamacare. Indeed public support for repealing this divisive and overarching “health reform” bill has risen to almost 60% in some polls, driven at least in part due to the fears by many that it could result in similar denials and rationing of care in America on a broad scale, (see previous post on this blog “So what's really the problem with Obamacare?”)


Indeed, the 2010 passage of the Patient Protection and Affordable Health Act, as it's officially called, as well as rising health premiums and cases like Baby Joseph's, has re-invigorated debate over the latter's precise concerns for which former Vice Presidential candidate and Alaskan Governor Sarah Palin was mocked in 2008 for warning of possible “death panels” (an apparently apt characterization coined to warn of the Act's possible unintended effects of stripping individuals and insurance companies alike of the decisions re: who receives necessary health treatment and who doesn't by handing them wholly over to government bureaucrats' who it was feared would make such determinations based solely on cold financial calculations).


This case has also reignited, in our view, a badly needed debate over when (and whether) there is ever an appropriate time for governments or insurance companies to engage in a “balancing” of financial costs v. perceived “quality of life” issues in making life and death medical decisions, (determinations many argue are better left to theologians and families, or at least the various State legislatures which could better represent the values of its citizens by enacting appropriate legislation upon full and thorough consideration of all salient issues through the Democratic process).


Indeed, in addition to the legal and moral questions raised by the Maraachli's experience with socialized medicine, concerns that this monumental shift in American health policy was passed by less than savory means without ANY pro-life or Republican support in Congress and with considerable dissension even in the Democratic House at the time only amplify the concerns with rationing already latent in this legislation, (see “So what's really the problem with Obamacare?” post this blog).


So our satisfaction that at least in baby Maraachli's case he will be given the second opinion (and chance) at life-- with Cardinal Glennon hospital announcing that baby Joseph's tracheotomy will likely be performed this week-- is tempered by the fact that thousands of other "baby joseph's" might not be so lucky. (Indeed, if Obamacare is not repealed stories like this could be become more of a standard occurrence all across this great land).


It is due at least in part to such concerns as well as the enormous increase in the deficit that Obamacare is likely to have in its outyears-- as has occurred with every other federal entitlement program in our nation's history-- that the Republican-controlled House has already voted to repeal this ill-conceived legislation. 


 Accordingly, we urge all concerned citizens to work to insure such health care rationing as we see has happened to Baby Joseph can never happen to all of our citizens by contacting their United State's Senators and demanding they go along with the House and repeal this misguided legislation so real solutions to health care that respects the right to life and dignity of all our citizens can be implemented in its place.   jp