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Mid-Day Digest

Dec. 19, 2019

THE FOUNDATION

“[Impeachment] will seldom fail to agitate the passions of the whole community, and to divide it into parties more or less friendly or inimical to the accused. In many cases it will connect itself with the pre-existing factions, and will enlist all their animosities, partialities, influence, and interest on one side or on the other; and in such cases there will always be the greatest danger that the decision will be regulated more by the comparative strength of parties, than by the real demonstrations of innocence or guilt.” —Alexander Hamilton (1788)

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IN TODAY’S EDITION

IN BRIEF

Trump Impeached — Now Ahead of All Dem Candidates

On the eve of the House Democrats’ somber gleeful vote to impeach President Donald Trump, a new poll showed him beating every potential Democrat candidate in hypothetical head-to-head contests in 2020. The USA Today/Suffolk University Poll observed, “The national survey, taken as the House of Representatives planned an impeachment vote and the Senate a trial, showed Trump defeating former Vice President Joe Biden by 3 percentage points, Vermont Sen. Bernie Sanders by 5 points, and Massachusetts Sen. Elizabeth Warren by 8 points.” Clearly, the Democrats’ partisan impeachment gamble has not played out as they had hoped.

Having gone all-in, Speaker Nancy Pelosi and company were left with little choice but to continue the charade, so on Wednesday the House held the impeachment vote. As expected, both articles of impeachment passed. Pelosi sought to moralize the vote, boasting, “I could not be prouder or more inspired by the moral courage of the House Democrats. We never asked one of [them] how they were going to vote. We never whipped this vote.” She honestly expects us to believe she had no idea how this would turn out?

More significantly, Pelosi failed to garner the bipartisan support she had previously insisted was necessary when considering such a serious move as impeachment. In fact, it is the Republicans who can claim the bipartisan banner, as two Democrats crossed the aisle to vote against the “abuse of power” charge, and a third Democrat joined them in opposing the charge of “obstructing Congress.”

It’s now official — Democrats have successfully lowered the bar on impeachment to now include partisan policy disagreements. Furthermore, Pelosi plans to delay sending the articles of impeachment to the Senate until she deems Senate Majority Leader Mitch McConnell’s rules to be “fair.” This is a clear play by Pelosi to continue the false narrative initiated by Chuck Schumer, who vacuously claims that Republicans aren’t playing fair. Apparently, the Democrats’ definition of “fairness” is to acquiesce to their every demand.

But McConnell, who is no stranger to the Democrats’ long history of disingenuous demands for “fairness,” pointedly responded: “House Democrats embarked on the most rushed, least thorough, and most unfair impeachment inquiry in modern history. The framers built the Senate to provide stability … to keep partisan passions from boiling over. Moments like this are why the United States Senate exists.” In other words, take a hike.

Trump took the occasion in stride. As Democrats were voting, he held a rally before a packed house in Battle Creek, Michigan, where he taunted the Democrats: “It doesn’t really feel like we’re being impeached.” He further blasted “the do-nothing Democrats” who he noted “do nothing” beyond “declaring their deep hatred and disdain for [the] American voter.” He added that their impeachment is “political suicide.”

During his speech, a staffer interrupted Trump to inform him of the final vote, to which he commented, “The Republicans have never been so affronted but they’ve never been so united as they are right now.” He then observed, “I’m the first person to ever get impeached and there’s no crime!”

Finally, while Democrats and the Leftmedia spent the evening gleefully relishing the House’s partisan impeachment vote, in the broader scheme of things they have just increased the likelihood of Trump winning in 2020.

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ObamaCare Loses in Court — Again

The Fifth Circuit Court answered four important questions regarding ObamaCare yesterday — including ruling the individual mandate unconstitutional — but ultimately punted the case back down to a lower court to reconsider the broader implications for the entire law. Two years ago, the Republican-controlled Congress made the “tax” penalty for not buying health insurance $0, which the Fifth Circuit Court decided means it isn’t a tax and thus was beyond Congress’s power to legislate. ObamaCare defenders insist the $0 penalty makes the question moot. Remember, the only reason the penalty was considered a tax in the first place was because of the machinations of Chief Justice John Roberts, who in 2012 rewrote ObamaCare in order to save it.

From the court’s ruling:

First, there is a live case or controversy because the intervenor-defendant states have standing to appeal and, even if they did not, there remains a live case or controversy between the plaintiffs and the federal defendants. Second, the plaintiffs have Article III standing to bring this challenge to the ACA; the individual mandate injures both the individual plaintiffs, by requiring them to buy insurance that they do not want, and the state plaintiffs, by increasing their costs of complying with the reporting requirements that accompany the individual mandate. Third, the individual mandate is unconstitutional because it can no longer be read as a tax, and there is no other constitutional provision that justifies this exercise of congressional power. Fourth, on the severability question, we remand to the district court to provide additional analysis of the provisions of the ACA as they currently exist.

Expanding on the tax question, the court reasoned, “Now that the shared responsibility payment amount is set at zero, the provision’s saving construction is no longer available. The four central attributes that once saved the statute because it could be read as a tax no longer exist. Most fundamentally, the provision no longer yields the ‘essential feature of any tax’ because it does not produce ‘at least some revenue for the Government.’”

On severability, what the court means is this: Without the individual mandate to force everyone into participating in the law, can the law as a whole still stand? We’d argue the clear answer is and always should have been that ObamaCare is unconstitutional. The federal government has no enumerated power to force citizens into any kind of commerce. That such an opinion is not universally held is a testament to many things — chiefly, a woefully inadequate educational system that fails to instruct students on basic civics, as well as the socialist bent of one of our two major political parties, which redefines “rights” to mean “things someone else has to provide for me.”

Legally, however, the severability question must now be answered by a district court — the court where District Court Judge Reed O'Connor last year ruled the law was unconstitutional. Then the law will inevitably be reconsidered by the Fifth Circuit and then, perhaps, the Supreme Court. Maybe John Roberts will end up with a chance to redeem himself, albeit a decade too late.

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ON OUR WEBSITE TODAY

Don’t Miss Alexander’s Column

Read The Impeachment Theater of the Absurd. Ironically, by claiming he needs more witnesses, Schumer is admitting that the House impeachment case is insufficient!

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BEST OF RIGHT OPINION

For more of today’s columns, visit Right Opinion.

TOP NEWS EXECUTIVE SUMMARY

PARTISAN IMPEACHMENT: Despite zero Republican support and two Democrat defections, House impeaches Trump for abuse of power, obstruction of Congress (NBC News)

QUID PRO QUO: Some House Democrats push Pelosi to withhold impeachment articles so that Mitch McConnell will yield to their trial stipulations (The Boston Globe)

“A DECISION I STRUGGLED WITH GREATLY”: Mark Meadows to leave Congress at end of term (Fox News)

DOUBLE-JEOPARDY VIOLATION: New York judge tosses state fraud case against Paul Manafort (NBC News)

LEGAL WRANGLING: Fifth Circuit declares individual mandate unconstitutional, punts on whether rest of Affordable Care Act must fall (The Volokh Conspiracy)

TIP OF THE ICEBERG? Michael Horowitz examining past FISA applications to determine if FBI’s “basic errors” are systemic (National Review)

“MINISTERIAL EXCEPTION”: Supreme Court will hear two obscure but important religious liberty cases (Washington Examiner)

COINCIDING WITH SLIPPING POLL NUMBERS: Elizabeth Warren scales back “Medicare for All” plan on 2020 campaign trail (The Washington Times)

WITH FRIENDS LIKE THESE, WHO NEEDS ENEMIES? UN peacekeepers fathered, then abandoned, hundreds of children in Haiti (The Washington Post)

POLICY: Seven ways to reform the obviously corrupt FISA surveillance system (The Federalist)

POLICY: Refocusing higher education on career outcomes (Manhattan Institute)

HUMOR: Speaker of the House Nancy Pelosi is threatening to withhold the Articles of Impeachment from the Senate until she gets something that will incriminate her political enemy, Donald Trump (Genesius Times)

For more of today’s editors’ choice headlines, visit In Our Sights.

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OPINION IN BRIEF

Jeff Jacoby: “The Constitution requires that members of the Senate ‘shall be on Oath’ when they take up an impeachment. At the start of the trial in January, each senator will swear that ‘in all things appertaining to the trial of the impeachment of Donald J. Trump, now pending, I will do impartial justice according to the Constitution and laws.’ In a real trial, the words ‘impartial justice’ signify an open mind that has not prejudged the guilt or innocence of the accused. Judge and jury are expected to bring an unbiased objectivity to the courtroom. They must not reach a verdict until they have heard the evidence and the arguments on both sides. But an impeachment trial is not a judicial trial, and senators are not members of a jury. They are partisan politicians. They have well-formed political opinions about the president, his behavior, and his fitness for office. Most of them know going in exactly how they intend to vote. That was the case at Andrew Johnson’s trial in 1868 and at Bill Clinton’s in 1999. It will be true at Trump’s impeachment trial as well. It’s why everyone already knows the Senate won’t vote to remove the president.”

SHORT CUTS

For the record: “House Democrats voted Wednesday evening to impeach Donald Trump but, media high-fives aside, what have they accomplished? They have failed to persuade the country; they have set a new, low standard for impeaching a President; Mr. Trump will be acquitted in the Senate; and Democrats may have helped Mr. Trump win re-election. Congratulations to The Resistance.” —The Wall Street Journal

Memo to the Left: “Donald J. Trump is president of the United States. He is president today. He will be president tomorrow. And he will be president when this impeachment is over.” —House Minority Leader Kevin McCarthy

The BIG Lie I: “President Trump abused the enormous powers of his office when he solicited foreign interference for the purpose of helping him in his re-election campaign in 2020. The president betrayed our national security and undermined the security of our elections when he put his own personal political interests ahead of the interests of our country.” —Rep. David Cicilline

The BIG Lie II: “He tried to cheat to win re-election. And this wasn’t an attack on Vice President Biden, this was an attack on our democracy, and if we do not hold the president accountable today we will no longer live in a democracy. We will live in a dictatorship where any future president will be free to abuse their office in order to get re-elected.” —David Cicilline

Non compos mentis: “We would be crazy to walk in there knowing [Mitch McConnell] set up a kangaroo court.” —House Majority Whip James Clyburn after the House completed its kangaroo court proceedings

Trump Derangement Syndrome: “It is my adult son, Ian Schakowsky, whom I will always credit for my decision last June to support an impeachment inquiry.” —Rep. Jan Schakowsky (D-IL), who just admitted planning impeachment before Trump even made his phone call to Ukraine

Dezinformatsiya: “Merry Impeachmas from the WaPo team!” —Washington Post “journalist” Rachael Bade

Grand delusions: “Fifty years from now, if you’re still alive and have grandkids, they’ll ask what it was like the night the House of Representatives had to impeach a President of the United States for violating his Oath of Office, threatening U.S. national security, and undermining our democracy.” —Newsweek columnist Seth Abramson

And last… “By the time of the election, this will all be a distant memory and nobody will care about it anymore. I don’t even care about it now and it just happened like an hour ago.” —Matt Walsh

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TODAY’S MEME

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For more of today’s memes, visit the Memesters Union.

TODAY’S CARTOON

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For more of today’s cartoons, visit the Cartoons archive.


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