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Between 2009 and 2020, Josh published more than 10,000 blog posts. Here, you can access his blog archives.

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Cruz on #SCOTUS: “I will be willing to spend whatever political capital is necessary.”

January 31st, 2016

In Iowa, Ted Cruz offered extended remarks on how he would approach nominating Justices to the Supreme Court (via ThinkProgress):

We are one justice away from the Supreme Court concluding that nobody in this room and no American has an individual right to keep and bear arms. We are one justice away from the Supreme Court striking down school choice programs across this country. We are one justice away from the Supreme Court striking down every restriction on abortion, and mandating unlimited abortion on demand, up until the time of birth, partial birth, with taxpayer funding, and no parental notification whatsoever. We are one justice away from the Supreme Court ordering veterans memorials torn down all over this country if they contain any acknowledgement of God Almighty.

Now the simple reality is Democrats on this issue, bat almost a thousand. Almost every Justice they put on the Supreme Court votes exactly as they intend. Republicans, we bat about .500. About half of our nominees are faithful to the Constitution. The other half are disasters. Many of the most liberal justices in this country — Earl Warren, Bill Brennan, John Paul Stevens, David Souter, Harry Blackmun, the author of Roe v. Wade — all of those were Republican appointees. And the reason is simple. Over and over again we keep electing Republican presidents for whom the Court is not a priority. And when it comes to a nomination, they take the easy road out.

They don’t want to nominate a principled constitutionalist, because then you have a fight on your hands. So instead they nominate a stealth candidate. Someone with no paper trail. Someone who is easy to confirm. And every single time we do that, we get caught.

Now I have spent my entire adult life fighting judicial activism, fighting to defend the Constitution, fighting to defend the Bill of Rights. Unlike the very fine individuals on that debate stage, I will be willing to spend whatever political capital is necessary, and sir I give you my word, every Justice I put on that court will be a principled constitutionalist jurist with a proven record who will be faithful to the law and will not legislate from the bench.

I have previously blogged about how the candidates discuss the Supreme Court, including Marco Rubio (herehereherehere, and here), Jeb Bush (here and here), Rand Paul (here and here), Ted Cruz (here and here), Hillary Clinton (here and here), and Bernie Sanders (here and here).

Disclosure: I advise the Rand Paul campaign.

Video: Stanford Law Federalist Society – 1st Amendment, 2nd Amendment, and 3D-Printed Guns

January 29th, 2016

On Thursday, January 28, the Stanford Federalist Society Chapter hosted me for a discussion of 3D-Printed guns, and how they interact with the First and Second Amendment. Prof. Michael McConnell was kind enough to comment on my talk.

61% of Americans Support Deferred Action Policy Generally, Only 54% Support it through Executive Action

January 28th, 2016

A new Reuters Poll asked respondents about whether they “back a plan that would allow certain illegal immigrants to stay in the country.” (I could not find the exact wording of the question). The results are interesting.

When the question was framed “in general terms,” support was broader for the policy.

The poll shows 61 percent of Americans support the plan to relax immigration policy for some undocumented people when it is described in general terms without using Obama’s name, including 42 percent of Republicans. Half of Republicans opposed the idea.

I suppose this means by statute, but without the actual polling question, I don’t know.

But when framed in terms of an executive action, support dropped, and fractured along political lines.

But when the same plan was described as being an executive action taken by Obama, support fell to 54 percent overall, with only 31 percent of Republicans supporting it and 62 percent opposing the measures.

For Democrats, 78 percent supported the plan when it was described without using Obama’s name, and 80 percent supported it when the president’s name was attached to it.

So what do we make of this? Republicans oppose the plan when it is tied to Obama’s executive action. For Democrats, it makes no difference. More broadly, overall support for the policy is 61% when performed without executive action. When it is performed for executive action, support drops down to 54%. The credibility interval is 3.2%. In other words, it becomes a 50/50 issue.

Regardless of what certain elite segments of the media tell you, this isn’t an open-and-shut issue.

Health Care Ranked 8th Among Issues Facing Voters

January 28th, 2016

One of the most common myths of the Affordable Care Act is that President Obama was inaugurated with a mandate by the American people to reform health insurance. On election day 2008, health care ranked as the fourth most important issue, following the economy, terrorism, and even gas prices! Additionally, President Obama ran on a health care plan that did not have an individual mandate, and did not raise taxes on anyone. The plan he proposed was effectively ripped off from Hillary Clinton, and the very elements he campaigned against. Why was healthcare ranked as such a low priority? Because the overwhelming majority of people were happy with their insurance. Here is a preview from Unraveled:

Every year since 2001, Gallup has surveyed Americans on how they would rate the quality of their personal healthcare. Consistently, year after year, around 80% of respondents rated it as good or excellent.[1] A February 2007 poll by CBS News found that 85% of people were satisfied with the quality of their own health insurance.[2] A September 2009 Quinnipiac University poll found that 88% of respondents were satisfied with their coverage.[3]  A June 2009 survey by ABC News yielded an 81% satisfaction rate.[4] Similarly, an August 2009 survey by the Kaiser Family Foundation found that 91% of the insured Americans rated their coverage as excellent or good.[5] Among the insured, 67% were very satisfied with their choice of doctors, 66% were very satisfied with the quality of care, and 82% were at least somewhat satisfied with the amount they paid. For the most part, people liked their insurance and doctors.

So it isn’t surprising, at all, that health care was not a highly-ranked issue among registered voters. Eight years later, a Kaiser poll has found that health-care is still the eighth-ranked issue.

Despite the ongoing debate between Republican lawmakers and President Obama on the future of the 2010 health care law, the January Kaiser Health Tracking Poll finds the Affordable Care Act (ACA) is only one of many issues that may impact voting decisions, with nearly a quarter (23 percent) saying it’s extremely important, but only four percent choosing it as the MOST important issue. Across all issues included in the poll, terrorism and the economy/jobs are the top two issues for voters at this point in the election. Across parties, the ACA does not rank higher than fourth in what voters say will be most important.

Now what is the takeaway here. Some may say this suggests that repealing Obamacare is not a priority. I disagree. For the most part, people haven’t quite felt the brunt of the ACA, so it’s elimination would not have nearly the same effect on the electorate as many predict. Note that this is a survey of registered voters. As Chuck Schumer noted, those who stand to lose the most are not registered.

 

Justice Alito at 10 Years

January 27th, 2016

In this month’s ABA Journal, Mark Walsh has a profile of Justice Alito’s ten years of service. Mark quotes me, and references my post about Alito’s remarks to the Federalist Society Texas Conference, where the Justice spoke at the George W. Bush Presidential library.

While the chief justice has spurned any contact with the Federalist Society, the conservative counterpart of the ACS, Alito has spoken frequently to the group and its affiliates. That includes a Texas event last September in which, according to one report, Alito reflected on his tenure and seemed to take some pleasure in the failed effort by Senate Democrats to filibuster his confirmation in 2006.

Josh Blackman, an associate professor at South Texas College of Law in Houston, attended the Sept. 19 Federalist Society Texas Chapters Conference in Dallas. The event was held at the institute of the president who appointed Alito to the Supreme Court, George W. Bush. Blackman posted a detailed account of the event, which included Alito dishing on some of the big cases of his tenure, including those in which he was in the majority and in dissent.

Blackman, a libertarian, said Alito seemed to relish appearances before conservative and libertarian crowds such as those attending Federalist Society events. “This is a crowd that will appreciate the constitutional perspective that he brings to the job,” Blackman says. “That may not be the case when he speaks at a law school.”