Speaking of hopeless geeks, check the legal beagles

by Smitty

In my mis-spent youth, I used to think that there was a direct relationship between wisdom and rank. By the time you make Admiral, you must be admirable.

Later I realized that 'everything is easy, when you know how to do it'.

Currently, I'm realizing that 'most things that are apparently hard have been obfuscated by somebody with a business model to protect'.

The U.S. Constitution, as written and amended, is one of those things that isn't terribly magical. Read Amar's book. My takeaway is that the more Progressive your read of the Constitution, the less your feet are touching bottom. If the legal theories can't be explained in a straightforward way to a child, then there may be too much abstraction afoot.

In light of the recent Constitutional flap about Obamacare, Volokh has been a good read, up to this point. But I fear they may have blown a gasket over there discussing Orin Kerr's post "The Myth of an Expert Consensus on the Constitutionality of Anything":

Richard Epstein says:
Orin’s post is unconstitutional.

December 23, 2009, 7:24 pm

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Orin Kerr says:
Richard Epstein is unconstitutional. So there!

December 23, 2009, 7:26 pm

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Richard Epstein says:
Only if one accepts an untenably expansive view of the Commerce Clause can Orin be correct that my very existence is in gross violation of our Nation’s fundamental charter.

December 23, 2009, 7:33 pm

We will test these legal theories about ObamaCare in just over 10 months. The opinion from the American people will be a "No" with a four letter prefix starting with "F". My prediction for the Democratic Party is well stated by the G3, with a rare Satriani vocal:

(Satch sounds like Steve Miller, and has obviously spend more time honing the fingers than the vocal chords.)

The bummer about the election being this soon is that they'll not flip enough Democrats in the House to the Republican party for the Wicked Witch of the West to loser her position as speaker. Probably for the best. The schadenfreude backlash would leave a steep death toll amongst conservative political junkies.

No Unintended Consequences Here

by Smitty (h/t Volokh)

Emphasis mine:

Yesterday, as expected, the U.S. Environmental Protection Agency issued a proposed finding that emissions of six greenhouse gases, including carbon dioxide, pose a threat to public health and welfare due to their contribution to global warming. The EPA further found that the emission of such gases from motor vehicles contribute to dangerous concentrations in the atmosphere. The EPA announcement is here.
The proposed findings will now go through a 60-day public comment period. Shortly thereafter, the findings will be finalized. Industry and anti-regulatory groups will almost certainly challenge the findings in court, and their legal challenges will almost certainly fail. Even if one doubts the accumulated scientific evidence that anthropogenic emissions of greenhouse gases contribute to climate change and that climate change is a serious environmental concern, the standard of review is such that the EPA will have no difficulty defending its rule. Federal courts are extremely deferential to agency assessments of the relevant scientific evidence when reviewing such determinations. Moreover, under the Clean Air Act, the EPA Administrator need only "reasonably . . . anticipate" in her own "judgment" that GHG emissions threaten public health and welfare in order to make the findings, and there is ample evidence upon which the EPA Administrator could conclude that climate change is a serious threat. This is a long way of saying that even if climate skeptics are correct, the EPA has ample legal authority to make the endangerment findings.

I predict that this little tweak is going to have the same stunning effect upon the economy as Fannie Mae and Freddie Mac.
The good news is that this legislation can be painted as a vampire, and candidates can run on the promise of putting a stake through the very heart of this smiling, fanged menace.

Moving to Montana Soon...

by Smitty (h/t: Volokh)

From the blogosphereic equivalent of Perry Mason, we hear:

Montana's staunchly pro-Second Amendment Governor, Democrat Brian Schweitzer, has signed Montana HB 246, the Montana Firearms Freedom Act. The bill declares that a firearm which is manufactured in Montana, and never leaves the State of Montana, "is not subject to federal law or federal regulation, including registration, under the authority of congress to regulate interstate commerce. It is declared by the legislature that those items have not traveled in interstate commerce."

...gonna be a dental floss tycoon: