Right Wing Nut House

My latest is up at FPM and I take a look at the so-called “reform” that the Syrian parliament passed that would theoretically allow opposition political parties.

Guess what. The law does no such thing:

But it is in this new draft law regarding political parties that Assad’s hypocrisy has reached its zenith. Not only is there no chance that any opposition will ever challenge the Baath party to govern the country, the rules for these new parties to be certified are designed to make sure that Assad maintains a firm grip on the political life of the country. First, there is a prohibition of parties based on religion, tribe, denomination or profession. While this will keep Islamist parties from forming, it will also make it difficult for Syrian citizens to create natural political allegiances. Secondly, there is a threshold of members that must be crossed before a party can be legalized. Anwar Al Bounni, who is head of the Syrian Center for Legal Studies and Research in Damascus, told CNN, “The law stipulates that any political party needs to have at least 2,000 members representing at least seven Syrian provinces before being active.”

The third roadblock that Assad has placed in the way of any real political opposition is the manner in which a party must be certified. Bounni pointed out that a party cannot be legalized unless a committee made up of the interior minister, a judge, and three other members appointed by the president give their assent. This, for all practical purposes, means that few, if any, parties will be allowed to function.

Elliot Abrams , whose experience in government goes back to the Reagan administration, was contemptuous of Assad’s reform efforts. He referred to the “unrivaled standard of hypocrisy” by Assad in this instance being “prizewinning.” He quotes a Reuters dispatch on the government’s stipulation that the new parties must have “a commitment to the constitution, democratic principles, the rule of law and a respect for freedom and basic rights.” Abrams writes, “Of course, were parties in Syria actually required to be committed to democracy and human rights, much less the rule of law, the Baath Party itself would be viewed–accurately–as a criminal organization.”

My latest at FPM is about the security handovers in Afghanistan and the enormous challenges facing the Afghan government of Hamid Karzai.

A sample:

Perhaps the biggest question mark is the Afghan government itself and the performance of its mercurial president. The shock of losing his half-brother and close adviser, Ahmed Wali Karzai, last week was compounded when another close confidant, Jan Mohammed Khan, was killed by a suicide bomber in Kabul on Monday. Some in Afghanistan are questioning whether Karzai’s government can survive once the handover is complete. One member of parliament told the Guardian newspaper, “These killings show the weakness of failure of Karzai’s politics. The situation is crisis. Karzai has lost control of the country.”

In fact, Karzai is scrambling to fill the void of his half-brother’s death, casting about for someone who can fill the hole in his leadership circle in Kandahar province, the most crucial area of the country. According to the Washington Post, several candidates are being considered, including Gul Agha Shirzai, the governor of eastern Nangahar province, who would replace the current governor of Kandahar. But tribal jealousies — Shirzai is of a different tribe than Karzai — might make that choice problematic.

Regardless, the dual blow of losing two of his closest advisers has jolted Karzai’s government and knocked it off-balance at an important juncture. The security handovers in Helmand province (Lashkar Gah), Bamiyan province in central Afghanistan, and Lagham province (Mihtarlam) are being seen as a test case for the government’s ability to keep the peace and build trust with citizens in order to extend the influence of the Karzai administration into the provinces. At the handover ceremony in Mihtarlam, British General James Bucknall, deputy commander of the International Security Assistance Force, said, “There will be plenty of challenges ahead, security and otherwise, as Mihtarlam progresses through transition over the coming months[.]”

And the biggest of those challenges will be finding out just how well the newly-trained Afghanistan police force performs under pressure. NATO soldiers will still be stationed nearby, but they will take their orders from the Afghanistan security services. The police force has been built from scratch, trained by NATO, but suffers from both a shortage of personnel and lack of equipment.

ABC News spent 6 days prior to the handover roaming the city of Mihtarlam talking to residents and officials. What the news outlet discovered is disturbing. There were only a “few dozen” officers patrolling a city of 100,000, which is “like asking the New Orleans Police Department to maintain security with fewer than 100 cops.”

Police officials do not patrol with armored trucks, despite the presence of IEDs, nor do they have bulletproof vests. In fact, the police do not patrol at all, according to ABC. US mentors have been urging the police to get out into the neighborhoods, but instead, the officers “would set up checkpoints and respond to emergencies, but they were not familiarizing themselves with the city they now officially protect.”

And there are troubling signs that citizens are not very accepting of their new security shield. When police officers caught a man trying to plant an IED, they chased him down only to have angry villagers confront them and drive them back. “There’s no intimidation factor,” says a special forces soldier who mentors the Afghan security forces. “They walk down the street, they have no vests, no helmets, and nobody is scared of them.” A senior aide to President Karzai told ABC that it might take 10 years before cities have functioning police departments. “The Taliban will continue to use suicide attackers and IEDs,” says the precinct captain. He added, “But if we receive the right equipment and more men, we will be ok.”

Read the rest here.

I have been remiss in publishing links to my work around the web lately. Allow me to rectify that:

My latest was published at FPM today about the planned massive demonstration today in Tahrir Square, Cairo. Protestors are angered at the slow pace of change and want the military to step aside for a civilian “transnational council” that would rule until elections were held - now put off till probably December.

On 7/12, I had another piece at FPM “Syria Embassy Attack: The Last Straw?” which gave some background on the attack on the US embassy in Damascus. Assad bused in hundreds of thugs to attack both our and the French consulate. It was in response to a visit to Hama by our ambassador to stand in solidarity with the Syrian people in their right to protest.

On 7/11, my FPM piece was on the “The Peaceful Palestinian ‘Fly-In’ Lie.” So many useful idiots - so little time to list them all.

Finally, the brand new PJ Media Lifestyles page was the venue for my short blog post on Falling Skies and why it might go all PC on us.

Enjoy. Political writing to return at any moment so stay tuned.

There are serious issues that the administration is apparently dismissing as they insist that trying all terrorists in federal court is the best way to combat terrorism.

I am sympathetic to the argument that whenever possible, terrorism related crimes should be tried by the regular courts. The Holy Land Foundation trial is a good example of this, where various Muslim “charities” were caught funneling money to Hamas. Other terrorist financing cases have been successfully prosecuted in civilian courts, and even FBI “stings” involving  home grown terrorists plotting mayhem might conceivably be better off being tried in federal court.

But for genuine, committed terrorists who are a danger to the entire world, a military tribunal and indefinite detention appears to be the only option. Civilization should have a trap door for these extremists, and granting them the extra protections afforded defendants in civilian courts is not only dangerous but a waste of time. As I point out in my FPM piece today, even if Mr. Warsame, the Somali captured in April and brought to New York to stand trial, is acquitted, he isn’t going anywhere. He will be sent to the “Supermax” prison in Colorado to spend the rest of his life behind bars.

Is it really that important that the rest of the world will think better of us if we allow a defense lawyer in federal court to make a circus out of the proceedings?

A sample from my FPM piece:

Obama’s new policy seeks to avoid the “tainted fruit” charges made by defense attorneys for terrorists who argued that some evidence used in court or offered during the military tribunals was the result of interrogations where the suspect was not apprised of his rights, or illegal methods were used to obtain the evidence.

This was the major problem during the 2010 trial of Ahmed Khalfan Ghailani, charged with more than 280 counts of murder and conspiracy in the bombing of our embassies in Africa in 1998. A pre-trial ruling by the judge denied the prosecution the testimony of a key witness who sold the explosives to Ghailiani, because the government learned of the sale when interrogating the witness at Guantanamo. Ghailiani was acquitted of all but one charge of conspiracy to destroy government property.

There were many who argued at the time that Ghailiani had no business being tried in a civilian court anyway, and that a military tribunal would have worked much better at bringing him to justice. Whether or not that supposition is true, it is a fact that Ghailiani was sentenced to life in prison without parole and is currently incarcerated at the “Supermax” detention facility in Colorado, along with other participants in the embassy bombings. His fate was ultimately no different than if he had been tried at Guantanamo, which raises serious questions about the efficacy of civilian trials in the first place.

But by keeping Warsame’s interrogations separate, with a clear wall between the CIA’s national security interrogations and the FBI’s efforts to gather evidence for trial, the administration is hoping to avoid the problems that emerged in the Ghailiani case, and that they can satisfy critics who worry that placing a terrorist in the court system is a wasted opportunity to glean significant intelligence from suspects. They also hope to satisfy their own supporters who believe Guantanamo should be closed and all terrorism suspects tried in federal court.

Judging by the reaction from both sides to Warsame’s indictment, it appears that the administration has failed to convince anybody that their new policy is the answer.

This is Obama manufacturing a policy not based on the reality of the situation, but rather on the political calculation that he must do something differently than George Bush. I’m not sure that a defense strategy wouldn’t try to claim that Warsame should have been mirandized by the CIA and that anything from those interrogations should not be allowed. Rules of evidence is one reason why a tribunal is preferrable to a civilian trial in some cases.

In the end, it won’t matter. Warsame is going to jail for life and those so disposed to believe that holding a civilian trial for enemy combatants will meet with the approval of the world - or at least liberals in Europe - will no doubt feel better about themselves.

Asking if it is the best course for protecting ourselves doesn’t seem to enter into their heads.

The indictments were long expected but still, there is great uneasiness in Lebanon as a result of the Special Tribunal Lebanon’s (STL) action in charging 4 members of the terrorist group/political party with Rafiq Hariri’s murder.

My piece from Monday’s FPM:

Hezbollah has rejected the indictments and the authority of the tribunal, claiming the court is a tool of the Israelis and Americans and vowing that it won’t cooperate with any efforts by the STL to try its own party members. Hassan Nasrallah, the group’s spiritual adviser and acknowledged leader, blasted the court as “corrupt” and stated, “They will not be able to arrest them in one year, two [years], nor in 30 or 300 years[.]” Nasrallah previously threatened to “cut off the hands” of anyone who tried to apprehend members of his group and claims that the goal of the tribunal is to sow sectarian strife in Lebanon between Sunnis and Shias.

Hariri was a beloved figure in the Sunni community, having served as prime minister four different terms between 1992 and 2004. His murder in a massive car bombing on February 14, 2005 set off a series of demonstrations that eventually led to the Syrian army quitting Lebanon the following spring.

The indictment names Mustafa Badreddine, the brother-in-law of assassinated Hezbollah commander Imad Mughniyeh, as the prime suspect and the chief planner in the assassination. Badreddine replaced Mughniyeh as Hezbollah’s chief operations officer after he was killed in a mysterious explosion in Syria on Feb. 12, 2008 — presumably carried out by Israeli intelligence, although there were murmurs at the time of his death that Syria’s President Assad or a rival Hezbollah faction might have been responsible for the attack.

Also named were Salim Ayyash, 48, who headed up the terrorist cell that carried out the operation. Ayyash holds a US passport and was a volunteer with Lebanese civil defense. It is believed both men have fled Lebanon and are currently hiding in Iran.

Little is known about the two other conspirators — Asad Sabra and Hasan Ainessi — except that Hezbollah has confirmed they are members of the terrorist group.

In a vaguely worded policy statement, of which portions related to the STL were released on Friday, the new government stressed its “respect” for all UN resolutions and its intention to follow the tribunal’s instructions in order to get to the bottom of the Hariri assassination. The policy statement must be approved in parliament in order for the cabinet to be seated.

Prime Minister Najib Mikati, fearful of an international backlash if his new government totally rejected the work of the STL, was at odds for weeks with Nasrallah over the best approach to take toward the tribunal, with Nasrallah demanding a cut off in funding for the court, as well as total non-cooperation with its investigation. For the time being at least, Nasrallah appears to have acceded to the necessity of appearing to cooperate with the STL — at least until the government can gain a vote of confidence in the parliament and the policy statement approved.

STL chief prosecutor Daniel Bellemare made it clear that these four indictments were only the beginning. Sources told Lebanon’s Daily Star that the indictments contained arrest warrants for other, non-Lebanese suspects. It is widely believed that members of Syrian intelligence, as well as Palestinian terrorists, will also be named in the indictments, although it appears to be less likely that high-ranking members of the government of Bashar Assad will face trial. It is also thought that any indictment of Syrian nationals has been put on hold due to the unrest in that country.

My guess is that because Hezbollah-dominated government doesn’t want any trials, there won’t be any. Still, it will be interesting to see who else is indicted - probably some Syrians and perhaps a surprise Iranian or two.

My piece on Blago’s conviction yesterday is up at Frontpage.com.

A sample:

Blagojevich is the 4th governor since 1973 to be convicted of a felony. The state has also seen an incredible run of other politicians and state officials being marched off to jail. At least 79 Illinois public officials have been convicted of wrongdoing since 1972, including now 4 governors, two other state officials, 15 state legislators, two congressmen, one mayor, three Chicago city officials, 27 Chicago aldermen, 19 Cook County judges, and seven other Cook County officials.

The unifying factor in the overwhelming majority of these cases was petty, personal monetary aggrandizement. Payoffs to judges for lenient sentences or even acquittals, kickbacks to aldermen, illegal campaign contributions, cash in shoeboxes, “pay to play” payoffs, contracts to cronies — the endless, ridiculous, maddening, depressing litany of abuses Illinois taxpayers have had to endure for most of the 20th century and beyond have made the state a laughingstock.

So it was with the Blagojevich caper. This was the second trial of the former governor in less than a year. The first trial ended ignominiously for the prosecution when the jury could come to an agreement on only 1 of 25 counts in the indictment, convicting Blagojevich of lying to the FBI. A review of that trial by US Attorney Patrick Fitzgerald’s office discovered that the jurors were confused by the numerous threads of wrongdoing by Blagojevich, including a prosecutorial effort to convict the former governor on several counts of racketeering. Also, Blagojevich’s brother Robert stood trial at the same time on 4 other corruption charges on which the jury could not agree.

For the second trial, the prosecutors streamlined the charges, concentrating on the “pay for play” schemes of Blagojevich to sell Obama’s Senate seat in exchange for either a cabinet post in the president’s administration, or hefty campaign contributions from other players. They also declined to retry Robert Blagojevich and dropped the racketeering complaints altogether.

Unlike his trial last summer, Blagojevich took the stand in his own defense. For seven dramatic days, Blagojevich held the court spellbound as he mounted a spirited defense of his actions in the Obama Senate seat controversy. He endured 3 days of grilling by Assistant US Attorney Reid Schar, who questioned his honesty, his motives, and his character.

The governor’s defense — that he was only doing what all other politicians do in the course of their duties — fell flat with the jury. What he referred to as “horse trading” turned out to be far more than simple political back-scratching. Secret recordings made by Fitzgerald’s office prove that time and again, Blagojevich discussed either large campaign contributions or a lucrative job offer for himself in exchange for appointing a favored politician to the Senate seat.

I make the point at the end of the piece that Blago is a tragic character:

Blagojevich himself said he was “stunned” by his conviction. Herein lies the real Shakespearean tragedy of the disgraced governor’s life and times. For the classical tragic figures - Hamlet, Macbeth, King Lear - it was a combination of their flaws as human beings and their inability to recognize that those flaws would lead to their own destruction, which gave their characters pathos and supplied a sense of impending doom that surrounded them.

For the disgraced ex-governor - arrested, impeached, convicted, tried twice, and now found guilty on 17 counts of political malfeasance and corruption - there will be no second act.

Not being aware that your actions are sowing the seeds of your own destruction - or believing, as Blago did that he was getting away with it — is one of those telling personality traits that reveals a shocking amorality. He really thought he could hold up the newly elected  president of the United States for a cabinet post.

Obama smelled trouble and  he and his staff steered clear of  making direct contact with the sleazy governor. But what does it say about the president that he was still willing to negotiate with Blago using 3rd parties? Recall that Blago was still talking to Obama intermediaries just hours before he was arrested.

They should have cut off any and all contact - even through 3rd parties - when it became clear that Blago was trying to get cash for the senate seat.

The key in my FrontPage.com article today is: “The notion that it is folly to base important military decisions on how politically popular the move might be, or how much money it will cost, has fallen on deaf ears in the White House.”

The president’s decision was made against the political backdrop of a re-election campaign and a battle in Congress over the deficit. His call to cut another $400 billion from the defense budget over the next 10 years, in addition to the $78 billion already slashed by Secretary Gates, will be an easier pill to swallow if the $120 billion a year we are currently spending on the Afghanistan war alone were to be substantially reduced. The cost of the war in Afghanistan surpassed spending for the Iraq war for the first time in 2010 after money earmarked for Afghanistan skyrocketed when Obama took office.

But clearly, the overriding reason for the faster pace of withdrawal than that recommended by military commanders is due to the genuine war weariness of the American people, and the political calculation that bringing the troops home at an accelerated pace will help the president win votes in 2012. A Pew poll out this week showed that 56% of Americans favored bring the troops home “as soon as possible.” This reflects a 16-point rise in that number since June of 2010. A similar rise in support for a quick withdrawal was seen in a CBS poll from earlier this month where 64% of respondents were in favor of the troops leaving Afghanistan.

The president’s Republican rivals have responded cautiously, arguing that any withdrawal must be measured against the situation on the ground. But it is unlikely they will criticize the president too heavily for doing essentially what most of them have been arguing for these past months on the campaign trail.

There were scattered voices of opposition. Senator Lindsey Graham said, “We’ve undercut a strategy that was working. I think the 10,000 troops leaving this year is going to make this fighting season more difficult.” Presidential candidate Tim Pawlenty broke with most of his fellow Oval Office aspirants, saying, “When America goes to war, America needs to win. We need to close out the war successfully.” Pawlenty urged the president to follow the advice of General Petreaus and “get those [Afghanistan] security forces built up where they can pick up the slack as we draw down.”

And House Intelligence Committee Chairman Mike Rogers bluntly accused the president of making the withdrawals because of politics. “It seems the President is trying to find a political solution with a military component to it, when it needs to be the other way around,” wrote Rogers.

There are many reasons to start withdrawing from Afghanistan. Political expediency is the worst and budget considerations is close behind.

It isn’t that two more summers - the time the military wanted - will make a big difference in the field. But by keeping the Taliban at bay while the Afghan army is give a small chance to improve enough to stand up to them when we are gone seems the least we can do to justify the sacrifice of blood and treasure.

Is it a good idea to negotiate with the Taliban?

I address this question in my latest column at FPM:

Ultimately, the question of leaving Afghanistan precipitously comes up when discussing the wisdom of talking to implacable enemies whose fanatical hatred of Americans would prevent them from compromising. The fact is, the army and police forces we are training to take over when all American combat troops are supposed to leave in 2014 are nowhere near ready, and have demonstrated little stomach so far to engage the Taliban in the areas assigned to them.

This is why the initial draw-down of US forces should be minimal, as the Pentagon is recommending. The president is set to announce his decision on Wednesday, but the pace of withdrawal would ideally hinge on the success – or failure – of negotiations with the Taliban. But the political pressure coming from even his own party to speed the withdrawal is intense, making any measured actions by the president problematic.

But there is a case to be made that it is far too soon to be pulling out of Afghanistan — negotiations or not. Frederick and Kimberly Kagan, writing in the Weekly Standard, make the point that if the ultimate goal of the war is to defeat not just the Taliban, but al-Qaeda as well, we must continue a high level of pressure on the Taliban in order to see our counter-insurgency strategy in Pakistan succeed:

Moreover, al-Qaeda is not finished because of bin Laden’s death. Senior leaders continue to live and work in Pakistan, coordinating operations with other al-Qaeda franchises around the world to attack Americans and America. What is the strategy for finishing this fight if we abandon Afghanistan prematurely or put progress toward stabilizing that country at risk?

The Kagans discern a connection between fighting the Taliban in Afghanistan and destroying al-Qaeda in Pakistan. “Any rationalization that relies on separating those two undertakings is, in fact, misinformed and dangerous.” There is a symbiotic relationship that, if broken by a quick withdrawal from Afghanistan, would make our counter-insurgency efforts in Pakistan useless.

But political considerations appear to be the driving force in our attempts to negotiate with the Taliban. And there doesn’t seem to be any stomach in the administration – or on the Hill – for much else.

I have two recent articles on the War Powers Act battle in Congress and what’s happening in Libya with NATO and the hapless rebels fighting Gaddafi.

From PJ Media on Thursday, I look at the president’s arrogance in declining to ask congress for authorization to go to war in Libya:

A bi-partisan group of House members led by Reps. Dennis Kucinich (D-OH) and Walter Jones (R-NC) has filed suit in federal court claiming the administration is in violation of the War Powers Act. Kucinich said: “With regard to the war in Libya, we believe that the law was violated. We have asked the courts to move to protect the American people from the results of these illegal policies”

Speaker John Boehner didn’t go that far, but still registered his disgust with the administration’s non-cooperation in explaining the U.S. mission in Libya by sending a letter to the White House on Tuesday calling on the president to “faithfully comply with the War Powers Resolution and the requests made by the House of Representatives, and that you will use your unique authority as our President to engage the American people regarding our mission in Libya.”

On June 4th, the House requested that the administration answer 21 questions in a resolution on Libya that sought clarification on the war, “including its goals and objectives, costs and justification for not seeking congressional authorization.” The measure included a deadline of 14 days for the president to respond.

In his Tuesday letter to the White House, Boehner told the president that he was out of time:

“Given the mission you have ordered to the U.S. Armed Forces with respect to Libya and the text of the War Powers Resolution, the House is left to conclude that you have made one of two determinations: either you have concluded the War Powers Resolution does not apply to the mission in Libya, or you have determined the War Powers Resolution is contrary to the Constitution,” Mr. Boehner wrote. “The House, and the American people whom we represent, deserve to know the determination you have made.”

Given the response of Mr. Koh, it would appear that the president does not believe that firing missiles from drones, manning a blockade line at sea, refueling NATO combat aircraft, and flying sorties that enforce the “no fly zone” in Libya can be defined as American forces engaging in “hostilities” — at least for the purpose of a work-around for the War Powers Act.

My second piece is published at FrontPage.com and is an update on what is going on in Libya and how the NATO alliance is reaching the end of its resources to fight the war:

The rebels’ claim of better coordination and communication is the result of them being equipped with satellite phones and more sophisticated radios — presumably gifts of “non-lethal aid” from the alliance. With much of Libya’s communications infrastructure destroyed, the phones and radios can potentially give the rebels an advantage over government forces.

Aside from humanitarian supplies and such non-lethal aid, NATO can do little to augment what the rebels can scrounge from captured government supplies, or make on their own. In fact, their own resources are being strained to near breaking. They are becoming more dependent on the United States for precision guided munitions and even their stockpile of conventional bombs is running low.

Then there is the strain on the national budgets of Britain and France. The war will cost Britain $1.5 billion by September at a time when the government of David Cameron is making large cuts in social service programs. And while the war flies largely below the media radar — and will probably continue to do so as long as there are few casualties — there is the real possibility that opposition to the conflict will manifest itself in both countries unless a victory can be achieved soon.

These strains have also affected the alliance as a whole. There is widespread agreement among both analysts and military experts within NATO that there is a crisis of resources largely because of a lack of participation in combat operations from several alliance nations that are perfectly capable of contributing but are refusing to do so. US Defense Secretary Robert Gates gave a withering critique of this lack of support in his speech in Brussels recently. There have also been warnings from the naval chiefs of Great Britain and France that they will not be able to sustain the same level of commitment to the operation unless the conflict can be ended before the end of the year.

As for the Boehner-Obama dust up, Obama wins hands down. There is no way the Kucinich suit has a prayer of succeeding and the speaker’s threat to cut off funding for the war is an empty one. He would need to get such a measure through the Democratic senate and have Obama sign it.

Obama will be able to go on his merry way in Libya - perhaps leading us off a cliff if, as is very possible, ground troops will have to be committed to overthrow Gaddafi. Expect the US role to grow in the coming weeks and months as Europe runs out of bombs and can’t afford to continue operations at the level they are currently being conducted.

Not that anyone would notice…

I wrote about that federal appeals court hearing in Atlanta yesterday about Obamacare for FrontPage.com.

A sample:

The 11th circuit is considered to be one of the most conservative appeals courts in the nation. Greg Bluestein writing for RealClearPolitics.com says of the judges, “None of the three are considered either stalwart conservatives or unfailing liberals.” Chief Judge Joel Dubina was appointed by George W. Bush, while Judges Stanley Marcus and Frank Hull were tapped by Bill Clinton, although Hull was originally appointed by Ronald Reagan to the District Court in Florida.

Court watchers say that both sides had reason for hope. During three hours of questions, the judges sharply questioned acting U.S. Solicitor General Neal K. Katyal about the power of Congress to compel individuals to purchase any product, much less health insurance. “If we uphold this, are there any limits [on government power]?” asked Judge Dubina. Judge Marcus said he couldn’t find a case in the law where the courts upheld “telling a private person they are compelled to purchase a product in the open market…. Is there anything that suggests Congress can do this?”

While the judges appeared skeptical about whether the government could force individuals to purchase a private product, they also didn’t seem to think much of the plaintiff’s argument that what Congress was really doing was regulating “economic inactivity.” Walter Delligner, acting solicitor general under Bill Clinton, detected some doubt in the judge’s questions of former Bush administration Solicitor General Paul Clement who is representing the plaintiffs.”The inactivity point is losing salience,” Dellinger said.

But it is the constitutionality of the mandate that most concerns the government, because without it, Obamacare collapses. There would be no way to fund the program. As Clement observed, “If you take out the hub, the spokes will fall.”

The Washington Examiner’s Randy Barnett points out the mandate is clearly the nub of the matter — both legally and psychologically. If the mandate passes muster with the courts,”[t]he next time Congress decides to impose an economic mandate, the courts will defer to Congress’ own assessment of whether another economic mandate is ‘essential.’”

In researching this piece yesterday, I came across about a half dozen articles from legal experts who think that even if the plaintiffs prevail in appeals court that SCOTUS will almost certainly uphold its constitutionality. Megan McCardle thinks there is barely a 25% chance the Supremes will give the ax to Obamacare.

Tradition more than ideology will determine the Supreme Court decision. It is extremely rare that the high court challenges congress in their interpretation of the Commerce Clause or the Necessary and Proper Clause. Congress has said by passing Obamacare that they have a right to regulate the insurance industry any way they choose — including the individual mandate — and buttress their argument by pointing to  Article I and the Necessary and Proper Clause as giving them the power to come up with the best means to achieve their legislative goal.

This will be good enough for the 4 liberals and almost certainly Anthony Kennedy. At least that’s how court watchers have handicapped the outcome. By the time the case reaches them, Obamacare will be so entrenched with billions in funding spent, boards and commissions formed, insurance exchanges created, and more, that striking it down in total will be impossible. Even in the unlikely event the mandate is declared unconstitutional, the rest of the law will remain.

Make no mistake. A Supreme Court imprimatur on the mandate will mean that for all practical purposes, there will be no limits on what can be construed as “economic activity” under the Commerce Clause. Even “inactivity” will be judged as falling under that rubric.

And don’t think for a minute that there aren’t people who will seek to use this near unlimited power to attempt to alter our behavior. Government will be able to compel us to purchase anything they deem “necessary and proper” to the implementation of health care laws and probably other schemes as well.

We will rue the day.