Morning Bell: The Limitless Power of the Obama-Kagan Congress

Morning Bell: The Limitless Power of the Obama-Kagan Congress

Posted By Conn Carroll On July 1, 2010 @ 9:23 am In Rule of Law | 8 Comments

This Sunday, our nation will celebrate Independence Day, which commemorates the Continental Congress’ adoption of the Declaration of Independence on July 4, 1776. Thomas Jefferson’s Declaration preamble reads: “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.” The fact that we as a nation came together every year to celebrate this document might lead many Americans to believe that a Supreme Court Justice should take the Declaration of Independence into account when they are interpreting the Constitution. Elena Kagan is not one of those Americans. Under questioning from Sen. Tom Coburn (R-OK) yesterday, Kagan admitted [1]: “To be honest with you, I don’t have a view of what are natural rights independent of the Constitution.”

And Kagan’s disturbing indifference to the existence of natural rights is just one of the many frightening revelations her confirmation hearing has produced. On Tuesday, Sen. Coburn pressed [2] Kagan about the limits the Constitution places on Congress’ power to control what Americans do:

Coburn: If I wanted to sponsor a bill and it said Americans, you have to eat three vegetables and three fruits every day and I got it through Congress and that’s now the law of the land, got to do it, does that violate the Commerce Clause?

Kagan: Sounds like a dumb law

Coburn: Yeah, but I got one that’s real similar to it that I think is equally dumb. I’m not going to mention which it is.

Kagan: But I think that the question of whether it’s a dumb law is different from whether the question of whether it’s constitutional and I think that courts would be wrong to strike down laws that they think are senseless just because they’re senseless.

The law Coburn was referring to, of course, was President Barack Obama’s signature legislative accomplishment: the Obamacare provision that forces all Americans to buy health insurance. But Jefferson and the other Constitution framers designed the document to protect our “unalienable Rights” by limiting the power of Congress. They designed an ingenious system of checks and balances that divides state and federal authority in the hope of preventing any one government from exerting too much control over a free people. Specifically [3], Article I allocates to Congress “[a]ll legislative powers herein granted,” and section 8 of Article I (referred to by Sen. Coburn above as the Commerce Clause), grants Congress the authority “[t]o regulate Commerce with foreign Nations, and among the several States, and with the Indian tribes.” The Supreme Court has always understood that, taken together, these clauses put some legislative powers beyond Congress’ reach [3].

But Kagan has now testified that not only does she find the Founders’ concept of “unalienable Rights” irrelevant to Constitutional interpretation, but she also declined to say if the Constitution prevents Congress from telling Americans what to eat.  Her evasive non-response to Coburn’s Commerce Clause inquiry shows that she would indeed be a rubber-stamp for almost any part of the Obama agenda that Congress enacts [4]. So if the Obama administration convinced Congress (and this is a total hypothetical) that the survival of a single car company, let’s say Chrysler, was absolutely necessary for the survival of the nation’s economy, and Congress then passed a law forcing all Americans to buy a Chrysler car, Kagan would find such a law, while perhaps “dumb,” perfectly constitutional. Jefferson must be rolling in his grave.

The leftist members of the Senate Judiciary Committee know that the Obamacare individual mandate is extremely vulnerable to being struck down by the Supreme Court. That is why they have spent so much of the hearing trying to redefine what “judicial activism” is [5]. As Heritage Deputy Director of the Center for Legal and Judicial Studies Robert Alt will testify today, the Court is not committing “judicial activism” every time it finds that a law violates the Constitution. Judicial activism is not a function of outcomes, but one of interpretation [6]. Instead, it occurs when a judge applies his or her own policy preferences to uphold, or strike down, a statute or other government action which is clearly forbidden by the Constitution.

Kagan came to the committee with one of the thinnest records of any Supreme Court nominee in recent history. What little has been learned about her views so far has been highly disturbing. Nothing in her testimony has demonstrated she has either the respect for our nation’s founding documents or the independence from this White House to apply the law as it is written, and dispense justice without regard to the parties before her.

Quick Hits:

Censors In, Liberty Out

Censors In, Liberty Out

Eileen F. Toplansky

We are learning that Elena Kagan would be quite comfortable subverting the First Amendment’s right to free speech.  In May of this year, activist Nat Hentoff, renowned authority on the First Amendment, sounded the alarm when he wrote that “last September, Kagan, then Obama’s solicitor general was asked to consider the government’s case for limits to corporations’ political speech rights (Citizens United v. Federal Election Commission).  During the oral argument, Chief Justice John Roberts asked Kagan how far the government could censor corporations’ political speech.  Roberts queried, “If you say you are not going to apply (censorship) to a book (about the candidates), what about a pamphlet?”
Kagan, a former Dean of the Harvard Law School replied, “I think a pamphlet would be different.  A pamphlet is pretty classic electioneering.”  So, in her judgment, the government could penalize such corporate speech.
American patriot Thomas Paine, author of the pamphlet “Common Sense,” and the “The Crisis” is turning over in his grave as is Samuel Adams, author of the pamphlet entitled “The Rights of the Colonists.”  The stench emanating from Obama and his cohorts is getting stronger by the day.
Chief Justice Roberts wrote:
“The [Obama] government urges us in this case to uphold a direct prohibition on political speech.  It asks us to embrace a theory of the First Amendment that would allow censorship not only of television and radio broadcasts, but of pamphlets, posters, the Internet, and virtually any other medium that corporations and unions might find useful in expressing their view on matters of public concern.

“Its theory, if accepted, would empower the Government to prohibit newspapers from running editorials or opinion pieces supporting or opposing candidates for office, so long as the newspapers were owned by corporations-as the major ones are.  First Amendment rights could be confined to individuals, [thus] subverting the vibrant public discourse that is at the foundation of our democracy.”

Thus, as Anthony G. Martin has opined, it is clear that the nomination of Elena Kagan to the U.S. Supreme Court is intended to bolster the Obama’s intention to censor anything he chooses.  Obama, the dictator would come full circle.
Why aren’t the journalists up in arms about this?  Don’t they see that this is yet another of Obama’s serial double-crossing strategy? He smooth talks a group, invites them into his lair, and then tears them apart when they are no longer useful to him. What is blinding reporters who cannot perceive the end result of the ill-named Fairness Doctrine, a tactic of Obama who has publicly stated that he wants to suppress and control conservative talk radio, for starters?
In his book entitled Babi Yar: A Document in the Form of a Novel, Anatoli Kuznetsov writes,
“…books are always being burnt.  The library at Alexandria went up in flames, the Inquisition had their bonfires…books were burnt under Stalin; there have been bonfires in the squares under Hitler, and there will be more and more of them burnt.  There are always more people to burn books than to write them…this is the first sign of trouble-if books are burned, that means things are going wrong.  It means that you are surrounded by force, fear and ignorance, that power is in the hands of the barbarians.”
Of course, Mr. Obama, the genteel, would never actually stoop to burning books — yet!
But censorship has always been the prelude to the bonfires.
The fact that a Jewish woman would even consider censorship makes this all the morevile.  She, of all people, should recall “a rule worth remembering:  Wherever hatred against Jews became inflamed, Jewish books or Jews or both were burned.  Such events took place in pagan Rome in the first century of the Common Era, in Christian Spain in the fifteenth century and in Nazi Germany in the twentieth century.
Nine years before the furnaces in Auschwitz and other death camps were lit, Jewish books were consigned to the flames in Germany.  The flames that burned the portrait of Albert Einstein became the signal for the first bonfire.  Jewish history shows that side by side with their books, especially the Talmud, Jews themselves were burned as well.  This occurred in Paris in the thirteenth century, in Rome and in Holland in the sixteenth, in Poland in the eighteenth.  As People of the Book, Jews and their books suffered a common fate.
That Ms. Kagan would give a scintilla of aid to bolster the Obama Administration’s intention to undo the First Amendment is a terrifying attack on American liberties. 
Eileen can be reached at

SCOTUS theater: Kagan kabuki

Lead Story

SCOTUS theater: Kagan kabuki

By Michelle Malkin  •  June 28, 2010 04:12 AM

Places, places everyone.

Today, the curtain officially opens on the Senate “battle” over Obama Supreme Court nominee Elena Kagan. “Battle” gets ghost quotes because all the poohbahs on Capitol Hill are already treating her confirmation as a “foregone conclusion.”

Beltway Republicans will put up just enough of a fight to placate grass-roots conservative activists on Kagan’s radical social views, while the nutroots will pout (but not too loudly) that Kagan isn’t enough of a liberal activist for them. And GOP Sen. Lindsay Graham, after several minutes of obligatory grandstanding mixed with obsequious suck-uppage, will cast his vote with Kagan and Obama — as he did with Sonia Sotomayor (whom he praised as “bold” and edgy”).

Here’s one MSM list of the “5 things to watch out for” during Kagan Kabuki.

I would add:

Will Kagan impersonate Goodwin Liu? Confronted with his radical writings and speeches, Obama’s far Left 9th Circuit Court of Appeals nominee cut and ran from his long-held political beliefs on everything from the welfare state to racial quotas to the role of the judiciary.

Will Kagan impersonate Joe Biden? Kagan’s hostility to the 2nd amendment is certain to be raised by Republicans. When faced with criticism from gun-owners regarding his boss’s views, Biden turned into a gun-slinging cowboy — and attempted to assuage self-defense activists by bragging about his own shotguns and Berretta.

(Speaking of guns, the Supreme Court is expected to hand down a ruling today in the gun rights McDonald v. Chicago case.

How many times will we hear the Kagan=”everyday people/compelling personal story” meme before the hearings are through? Hey, it worked for Sonia Sotomayor

– How quickly will left-wing WaPo fashion writer Robin Givhan (who bashed Bush-nominated Supreme Court Justice John Roberts’ children’s clothes) crank out a piece praising Kagan’s sensible, down-to-earth, common people style?

– How many times will we hear Democrat Senators vouch for Kagan’s commitment to social-engineering “diversity” at Harvard?

How many Senators have actually read through the 44,000-plus pages of Kagan-authored legal memos, analysis and other documents during the Clinton era just released less than two weeks ago. Answer: ZERO.

Americans United for Life has a Kagan backgrounder and questions for the nominee has a rundown of today’s events:

Lee Ross at

Monday’s kickoff will be the most scripted day of the confirmation hearing that is expected to last all week. The day is dedicated to opening statements from the 19 Senate Judiciary Committee members (12 Democrats and seven Republicans) and the nominee. Kagan will be presented to the committee by Massachusetts Senators John Kerry (D) and Scott Brown (R). In between her work in the Clinton and Obama Administrations, Kagan was a professor at Harvard Law School outside Boston. It is customary for nominees to be presented to the committee by their home state senators, though Kagan was born and raised in New York City and once taught at the University of Chicago Law School.

Kagan’s statement to the committee will not come until late in the afternoon and will end the hearing’s first day. It will mark the first substantive remarks from her since the May 10 nomination announcement at the White House. In the weeks since, Kagan has met with 62 senators and more recently has spent several hours each day preparing her answers to questions she expects to hear.

Here’s a brief summation of conservative concerns about Kagan from Utah GOP Sen. Orrin Hatch. I know. I know. It’s Senator Open Borders Hatch. But at least he’s right about this:

“Judges who bend the Constitution to their own values and who use the Constitution to pursue their own vision for society take this right away from the people and undermine liberty itself.”

Jewish Clergy Group: Elena Kagan Isn’t ‘Kosher’ to Serve on Supreme Court

Jewish Clergy Group: Elena Kagan Isn’t ‘Kosher’ to Serve on Supreme Court
Friday, June 25, 2010
By Pete Winn, Senior Writer/Editor

Rabbi Yehuda Levin, spokesman for the Rabbinical Alliance of America. (Photo courtesy of the Alliance)
( – Supreme Court nominee Elena Kagan is “not kosher” — meaning she is not fit to serve on the court — according to more than 850 Orthodox members of the Rabbinical Alliance of America. That’s the term the rabbis used about Kagan in a press release issued Thursday, saying “Elena Kagan is not kosher. She is not fit to sit on this Court — or any court.”
Rabbi Yehuda Levin, spokesman for the alliance, told on Thursday that “a great deal has been made about the fact that she would be the second Jewish woman on the court, and we want to signal to people across the country that we take no pride in this.” 
Levin said most people are happy when “one of their own” is nominated to such a high position. But, he added, “We feel that Elena Kagan turns traditional Judaism on its head – from a concept of a nation of priests and holy people, she is turning it into, ‘Let’s homosexualize every segment of society. And by the way, partial-birth babies have no right to be delivered.’”
In a statement issued Thursday, the rabbinical alliance called on the Senate Judiciary Committee to refuse to confirm Kagan to succeed the outgoing Justice John Paul Stevens.
“It is clear from Ms. Kagan’s record on issues such as abortion-on-demand, partial-birth-abortion, the radical homosexual and lesbian agenda, the “supremacy” of the anti-family panoply over religious liberties of biblical adherents, et. al., that she will function as a flame-throwing radical, hastening society’s already steep decline into Sodom and Gomorrah,” the rabbis said in the statement.
Levin told that his fellow rabbis – and hundreds of thousands of Orthodox and traditional Jews – are puzzled at the president’s choice of Kagan.
“What exactly was Obama thinking, President Obama thinking, when he nominated Kagan? Because eventually, down the road, someone — or some group — is going to ‘take the hit’ for the crazy decisions that Kagan is bound to make. So we would have much preferred if President Obama had given this ‘distinction’ to another minority group, instead of singling out the Jews.”
Barring a rebuff from the Senate Judiciary Committee, Levin told that the rabbis want someone in the Senate to launch a filibuster to stop Kagan’s nomination from coming to a vote.
‘We’re waiting for the more courageous, decent senators – whether it’s a (Sen.) Jim DeMint (R-S.C.) or a (Sen.) Tom Coburn (R-Okla.) or a (Sen.) Jeff Sessions (R-Ala.) – we’re looking for them to stand up and filibuster this embarrassing endangerment of a nomination,” Levin said.

Confirmation hearings for Kagan begin Monday at the Senate Judiciary Committee. Neither Sen. Dianne Feinstein (D-Calif.) nor  Sen. Russ Feingold (D-Wis.) — both members of the committee, known Kagan supporters and top Jewish members of the Senate — responded to calls for comment on this story

EXCLUSIVE: Documents Show Kagan’s Liberal Opinion on Social Issues

EXCLUSIVE: Documents Show Kagan’s Liberal Opinion on Social Issues

June 4th, 2010

by Jan Crawford, CBS News

Elena Kagan has kept her cards so close to the vest that in the days after President Obama nominated her to the Supreme Court, some on the left worried she was too moderate to replace liberal Justice John Paul Stevens.

But in documents obtained by CBS News, Kagan–while working as a law clerk to the late Justice Thurgood Marshall – made her positions clear on some of the nation’s most contentious social issues.

The documents, buried in Marshall’s papers in the Library of Congress, show Kagan standing shoulder-to-shoulder with the liberal left, at a time when the Rehnquist Supreme Court was moving to the conservative right.

They also provide a remarkably candid picture of her opinions, including on the most controversial issue Supreme Court nominees ever confront: abortion.

Although Kagan’s confirmation has thus far been an all but foregone conclusion, sources say these documents will give Republicans a few cards of their own to mount a strong fight against her.

And they will only heighten demands for more information on her views–including interest in her papers in the Clinton Library. Some of the Clinton Library documents, which cover her time working in that administration, could be released as early as Friday.

Read More

BREAKING NEWS: Kagan (Supreme Court Nominee) Advocates Radical Socialism – College Thesis Uncovered

Fellow Patriots,

We had originally been hesitant to involve the organization in the potential battle over Elena Kagan, Obama’s nominee for SCOTUS.

You see, up until this evening, Kagan’s History was largely unknown. This has changed, however, because uncovered Kagan’s college thesis that essentially exposes her as an all out radical socialist.

Here is a quote to get you started:

“In our own times, a coherent socialist movement is nowhere to be found in
the United States. Americans are more likely to speak of a golden past
than of a golden future, of capitalism’s glories than pf socialism’s
greatness. conformity overrides dissent; the desire to conserve has
overwhelmed the urge to alter. Such a state of affairs cries out for
explanation. Why, in a society by no means perfect, has a radical party
never attained the status of a major political force? Why, in
particular did the socialist movement never become an alternative to
the nation’s established parties?”

The thesis is very telling and quite profound. As
it turns out, according to Kagan’s thesis, she’s a part of a larger
movement to identify failures of socialist movements of the past, in
order to correct mistakes for future efforts

Liberty First PAC and the Patriot Caucus have launched a new petition
aimed at battling Kagan’s nomination and we thought we would send it to
you first.

Please follow these four steps:

1) Visit and sign the petition (we have links to the thesis there as well)
2) Click here to Tweet the link and share it with your followers (This MUST go viral!)
3) Email your lists, friends and family and tell them to go to and sign the petition!

Don’t let this administration install another radical in Government!

Elena Kagan Qualifications (the cartoon)


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