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Bill Britt

Roberts’ Rule: Conservative Double Cross or Constitutional Brilliance

Bill Britt

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By Bill Britt
Alabama Political Reporter

MONTGOMERY—Much has been made of the ruling by Chief Justice John Roberts since last Thursday when he sided with the liberal wing of the court to uphold the key provisions in the Affordable Care Act.

For most conservatives Roberts’ ruling has been seen as a betrayal of principle, a death blow to the republic and everything in between.

Historically, such knee-jerk hyperbole is usually wrong and sighting something as a work of an activist judge generally means that the jurist didn’t rule the way a certain group wanted them too.

But what if in Chief Justice Roberts 59-page opinion there is a means by which future courts will be able to rule more narrowly on laws using the Commence Clause as their basis and what if his “Gun to the Head” opinion can be the opening needed to not only stop the federal government from forcing unconstitutional mandates on states but even allow states to overturn longstanding laws?

What if all the anger against Roberts is misplaced political posturing and not a rational assessment of his opinion at all?

What if the Roberts’ ruling is the most brilliant Supreme Court ruling in 80 years–not only limiting the Commerce Clause but also a coups de grâce to unwarranted federal powers?

Soon after the court’s ruling Neal Katyal, the Justice Department lawyer who argued for the Obama administration in the circuit courts, wrote in “The New York Times,” saying the Medicaid ruling “contains the seeds for a potential restructuring of federal-state relations.”

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“This was the first significant loss for the federal government’s spending power in decades,” wrote Katyal. “The fancy footwork that the court employed to view the act as coercive could come back in later cases to haunt the federal government. Many programs are built on the government’s spending power, and the existence of an extraconstitutional limit on that power is a worrisome development.”

A portion of the Roberts opinion which was joined by Justices Stephen Breyer and Elena Kagan said that the federal government had gone too far when imposing requirements on states as a condition of accepting federal dollars.

This type of finding by the justices’ writing for the majority has not been present since FDR and the “New Deal.”

In his opinion Roberts said the federal government “in this case the financial ‘inducement’ Congress has chosen … is a gun to the head.”

While the opinion dosen’t categorizes a clear test for when new federal requirements cross that line it did say that one does exist.

By saying that the government had gone too far with its decades old carrot-and-stick approach to forcing states to enact federally mandated programs or forfeit millions in federal dollars, Roberts may have set up a way that forever changes how much if any pressure Washington, DC, can place on the states.

The right to opt out of the Medicaid expansion could set up a scenario where by states could offer legal challenges to other such programs.

While not certain, would not the Clean Air Act fall into this category? The law mandates that states implement programs that meet national pollution limits or they can lose federal highway dollars. Does this not fall under the Roberts’ finding?

What about No Child Left Behind, or the Americans’ with Disabilities Act or even Title IX?

Perhaps this is expanding the scope of the court’s opinion too far, but is that not how these things begin, by case precedent?

I am not a lawyer, but I have pretty good reading comprehension skills and I see an opening for states like Alabama to begin to challenge the powers of the feds to impose their will using a carrot and a stick.

So, perhaps my conservative friends should look at Roberts not as a traitor but as the man who took a lemon and gave the states the tools to build a lemonade stand. One that can’t be controlled from Washington.

 

Bill Britt is editor-in-chief at the Alabama Political Reporter and host of The Voice of Alabama Politics. You can email him at [email protected] or follow him on Twitter.

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Bill Britt

Opinion | Fear not, fight on and don’t faint

Bill Britt

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The spread of COVID-19 in Alabama is worse today than it was yesterday, and in all likelihood, it will be more devastating tomorrow.

The realities of the moment challenge us to be strong, resilient and persistent.

On Sunday, the number of confirmed COVID-19 infections in the state passed 1,800, with 45 reported deaths. Those numbers represent real people, our fellow citizens, friends and loved ones.

The latest figures coming from the state may be only a hint of what’s next.

More of us will survive this disease than succumb to it, but we will all feel it, even naysayers and deniers.

The fight against this pathogen is not a sprint that will end swiftly; it is a marathon. Therefore, perseverance is critical. In sports, as in life, perseverance separates the winners from the losers.

Winston Churchill said, “If you’re going through hell, keep going.”

As a state and a nation, the times demand we keep going without fear.

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These are not the worst of times; these are trying times that will pass. This is not a happy talk but a message from history. History teaches that humans are adaptive and, therefore, survivors.

It doesn’t mean that horrible things aren’t happening; they are.

People are sick, some are dying, but all the while along with doctors, nurses and health care providers, there is a legion of ordinary Alabamians doing simple things that in the context of this calamity are extraordinary.

Individuals who deliver groceries, stock shelves and cook take out are putting themselves at risk so others can eat. The same can be said of thousands that are keeping essential services open.

These individuals are displaying the very essence of perseverance — the will to push forward when it would be easier to quit.

In George S. Patton’s speech to the Third Army during World War II, he delivered many memorable lines that are not easily quoted in a general publication. Patton was fond of profanity. But many apply to our current situation.

“Sure, we all want to go home. We want to get this war over with. But you can’t win a war lying down,” Patton said.

We will win if we don’t give in and don’t quit.

This isn’t hell for all, but it is for some.

Now is a time for each of us to do what we can to ensure that we all survive.

My mother was fond of quoting scripture and sometimes with her own unique twist.

Galatians 6:9 was one of her go-to verses.

“And let us not be weary in well doing: for in due season we shall reap if we faint not.”

She would say, “Now, that doesn’t mean you won’t get woozy, or that you won’t need to take a knee. It says don’t faint — never give up.”

Then she would round it off with, “‘Spirit is willing, but the flesh is weak,’ to heck with the flesh, it will follow where the mind tells it to.”

What we do now will determine who we will be as a state and nation once this pandemic subsides. Will we be better, stronger, and more humane, or will we further cocoon into tribes who are weaker, disparate and frightened?

Fear not, fight on and don’t faint.

 

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Bill Britt

Opinion | Take action, lead

Bill Britt

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My wife and I lived in New York City on 9/11 and heard the first plane roar overhead before crashing into tower one of the World Trade Center. That act of terror was swift, startling and violent.

COVID-19 is a slow-burning fire consuming resources, businesses and most terribly, lives.

Any reasonable person knows that now is a time to take decisive actions, big and small.

In the days following the attacks of 9/11, our leaders followed a steady drumbeat to war, a war that still lingers.

Today, there is no one to battle except the virus itself, and anyone with eyes to see and a mind to reason understands that our nation and state were ill-prepared to lead the charge.

This doesn’t mean that government leaders aren’t trying; it simply means at varying levels they were not ready.

In the aftermath of 9/11, some excused the government’s ineptitude to detect the plot against the United States as a failure of imagination.

But a few weeks after the terrorist attack, I met with a top insurance executive who said that their company had gamed out a scenario where two fully fuel 747s would be highjacked and crashed into each other over the island of Manhattan setting the entire city ablaze.

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It was not a failure of imagination, just as the coronavirus outbreak isn’t either. In both cases, it was inaction.

Winston Churchill said, “I never worry about action, but only inaction.” Our leaders have been slow to act. He also said, “You can always count on Americans to do the right thing – after they’ve tried everything else.”

So it is again, there is nothing new under the sun.

It’s easy to sit back and critique, second guess and rattle off to anyone who will listen to how you would have done it differently. Armchair pundits and Monday morning quarterbacks are always in abundance.

Leadership is rare and only in times of real human crisis do we see who is up for the challenge.

I’ve been thinking a lot lately about the famous line from John F. Kennedy’s Inaugural Address on January 20, 1961. “And so, my fellow Americans: ask not what your country can do for you — ask what you can do for your country.”

Alabamians may not know how to shelter-in-place, but we do know how to hunker down for a spell.

What we don’t do very well is nothing.

At APR, we are busier than ever trying to inform the public on the ever-expanding calamity accurately. We neither seek to sensationalize or trivialize the news.

Daily, my concern is for the people of our state, the human toll this crisis will reap.

Yes, the economy is essential, but jobs and businesses can be replaced. Who can replace a human life?

No one knows when this pandemic will subside or what cost we will pay for early missteps, but every life saved is a victory and every life lost should weigh heavily on our souls.

The Biblical account of Job is rich in its instruction about loss and suffering. Job’s family, home, and business were all destroyed, but afterward, they were restored by a devine second chance.

And what did Job do to break the chain of misfortune?

“And the LORD restored Job’s losses when he prayed for his friends. Indeed the LORD gave Job twice as much as he had before.” KJV Job 42:10.

If you don’t pray, think about your friends and wish for their well-being.

All across our state, prayers and well wishes I’m sure are raining down.

We are all in the midst of a potential catastrophe of unknown proportions.

Yes, the government can do more and they must, but each of us should do what we can to help others as well. We must all lead in our own way.

The people of our nation and state are rising to the occasion, but still, many are in denial and they are adding to the problem.

Leadership is not an elected or appointed position; it is a choice; leaders stand up and lead.

 

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Bill Britt

Opinion | Have hope

Bill Britt

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Healthcare professionals and scientists seem to indicate that we are closer to the beginning of the COVID-19 calamity than at the middle or the end.

But even in times of real human crisis, hope isn’t dead but remains a vital thread in the fabric of what we know as the human spirit.

In his eighth State of the Union address in 1941, President Franklin D. Roosevelt said, “We have always held to the hope, the belief, the conviction that there is a better life, a better world, beyond the horizon.”

This is part of the message Roosevelt relayed to the American people as he prepared the nation to enter World War II.

Across the nation and here in Alabama, everyone is experiencing disruption to daily life.

Worry, doubt and fear is everywhere as minute-by-minute bad news rolls in like a spring deluge.

“Hope Springs Eternal,” is a phrase from the Alexander Pope poem An Essay on Man in which he wrote:

“Hope springs eternal in the human breast;

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Man never Is, but always To be blest.

The soul, uneasy, and confin’d from home,

Rests and expatiates in a life to come.”

“Hope is, of course, the belief one holds during difficult circumstances that things will get better,” writes Saul Levine M.D., Professor Emeritus in Psychiatry at the University of California at San Diego in Psychology Today. “It is unique to our species because it requires words and thoughts to contemplate possible future events.”

Dr. Levine concludes that hope is the very nature of the optimism that drives us to work toward overcoming.

“It has religious meaning for believers in God, who through prayer trust that their future will be protected by their Deity,” said Levine. “But the presence of hope is secular and universal, and serves as a personal beacon, much like a lighthouse beckoning us during periods of darkness and stormy seas.”

There is a reason for alarm as the government’s response to the COVID-19 pandemic has been uneven, ineffectual and at times bordering on dereliction of its duty.

For years, there has been a movement to shrink government to a size where it can be drowned in a bathtub. The response by the federal government to the COVID-19 outbreak is a manifestation of that thinking.

Except for Gov. Kay Ivey, most state officials have remained near mute or totally silent during the crisis. Lt. Gov. Will Ainsworth has offered encouragement. Still, others seem to be in hiding except for a few Republicans who have sought to politicize the moment by criticizing U.S. Sen. Doug Jones and Speaker of the House Nancy Pelosi.

These times call for decisive leadership, frank words about the realities facing our State but not political pandering.

Diseases like COVID-19 are not partisan, seeing neither Democrat or Republican. The State’s political leaders—the real ones—need to offer solutions, not partisan finger pointing.

Gov. Kay Ivey and her staff are doing their best, Press Secretary Gina Maiola is keeping the press informed almost hourly, likewise Communications Director Leah Garner is guiding the governor’s message so that the public is informed. Health officer, Dr. Scott Harris’, briefings are realistic, sobering and needed. Ivey’s chief of staff, Jo Bonner, is a steady hand quietly and methodically aiding the governor and the various agencies who need support.

There have been missteps and blunders, but the governor’s office is meeting a Herculean challenge with calm and efficiency.

If good intentions and best efforts are worth anything, if giving it one’s all is the best any of us can do, then Gov. Ivey and her staff deserve appreciation.

The situations in the State will worsen before it is better.

No one knows how long COVID-19 will plague our State, but be assured that hope and faith beat worry and fear every time.

In what has become known as the “Four Freedoms Speech,” FDR also had a message for the world. “Men of every creed and every race, wherever they lived in the world” are entitled to “Four Freedoms”: freedom of speech, freedom of worship, freedom from want, and freedom from fear.

Our present danger will pass and we will once again need to work to preserve the four freedoms that FDR spoke about so many years ago.

Hope is one of our greatest assets in times like these. Please remain safe, have courage and believe that better days are ahead.

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Bill Britt

Analysis | Alabama Power is keeping the lights on for everyone, that’s not enough for some

Bill Britt

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Alabama Power Company last week announced that it had not and would not disconnect any of its utility customers during the COVID-19 crisis. That commitment was not enough for the environmental group GASP or Energy Alabama.

That was the simple story I was writing when the absurdity of the situation dawned on me.

This is no time to politicize a crisis.

The hardworking women and men at Alabama Power are on the frontlines of the COVID-19 battlefield making sure the citizens and businesses of the state have reliable energy despite the dangers posed by the coronavirus virus.

Since the Governor’s emergency declaration Alabama Power has determined that there would be no disconnects and no late fees.

“We have not terminated service for any customer since the declaration of emergency by the state,” wrote APCO spokesperson Michael Sznajderman to APR. “It has been our policy since that declaration that no customer financially affected by this health crisis will experience a service interruption.”

But GASP and Energy Alabama want Alabama Power to do more for customers impacted by COVID-19. Alabama Power has said it will work with each customer who has been affected by the crisis with no disruption of service and no late fees.

But again, that is not enough for GASP and Energy Alabama.

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Electrical power is an essential resource, so is food and gasoline, but no one is demanding that Publix or Exxon-Mobile provide groceries and fuel without payment. And neither has a food chain or filling station offered a free supply of gas or groceries until the end of this critical period.

For any individual or group to demand free gas and food would be seen as absurd, but somehow utilities should shoulder the burden, and they do.

For those who cannot pay their utility bills, Alabama Power is giving what amounts to an interest-free loan.

Credit card companies are still charging interests and late fees and no customers are being able to spend without limits, but that is what Alabama Power is doing for its customers.

However well-meaning these demands being made by GASP and Energy Alabama are, they seem to be more political than practical.

But Alabama Power has been a target of political grandstanding since Gov. George C. Wallace determined that racist rhetoric wasn’t enough to win every election and he needed a “cause” to fight for the common man. Wallace vilified Alabama Power for political gain, nearly bankrupting the company along the way.

All good populist crusades need a villain to rail against, synthesizing the fight to a David versus Goliath trial with the populist as the champion.

Of course, most times when a journalist slams Alabama Power, the left cheers, but if anyone dares to point out facts that might agree with the utilities company’s position, they must be on the take.

How silly and cynical is the world of politics where everything is conspiratorial and everyone is getting paid?

At APR, we present arguments left, right and center and when we see injustice or absurdities, we are not afraid to speak.

Alabama Power is a big company that employs thousands of Alabamians and for decades, it has been the foil of politicians, environmentalists and others.

Right now, Alabama Power’s employees are working tirelessly to keep the lights on for every citizen and business in the state.

Now is not a time for political grandstanding or seeking a fight where none truly exists.

Alabama Power has said it will not disconnect any customer or charge late fees and will work with those who need help once the crisis passes.

For now, “Always on” is a reassurance to every citizen who is out of work or struggling to make ends meet in this challenging time.

GASP and Energy Alabama may have a role to play, but during these trying times, we are better if we work together for our community and not our political causes.

Since publishing this article Alabama Power issued a more definitive statement view here. 

 

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