Thursday, June 22, 2017

The Evolution of the Commerce Clause (Part IV)

The 2000 case between Reno v. Condon the Court held the Driver’s Privacy Protection Act of 1994 (DPPA) was Constitutional. Chief Justice Rehnquist wrote the unanimous decision citing the commerce clause. Since Nevada was selling personal information of driver license applicants, the Court ruled that they violated the commerce clause because some of that information can travel across state lines. Rehnquist also held that the DPPA law was not coercive in any matter. The Court’s imagination for creating new rights in the Constitution is only matched by the Court’s imagination to find applications for the commerce clause. In Hunter v Pittsburg in 1906 it was established that States can make bad laws (as long as they did not violate the liberty of individuals). The Nevada law’s attempt to get more revenue was not much different than ObamaCare’s mandate to get more revenue – both uniquely bad in nature. In Reno, the Court assumes some information will cross state lines without actual proof that it is happening. However, in Filburn, it was established that 0% of goods have to cross state lines for it to be considered violating interstate commerce. The Court’s rationale was that since Filburn had more crops to feed his assets, less crops would have to travel to his state. The DPPA is further proof of how powerful and how imaginative the federal government and the Court has become in applying the commerce clause. There is one question the Court has refused to answer over years while strengthening the commerce clause: What State economic activity is free from any commerce clause intrusion?

The 1996 case between Seminole Tribe v. Florida was a very interesting one. In 1988 Congress passed the Indian Gaming Regulatory Act (IGRA) requiring States to negotiate with Indian Tribes for gaming contracts and licenses. However, Florida refused to negotiate a contract with the Seminole Tribe and they filed suit for their failure to meet IGRA regulations allowed by the commerce clause. The Court ruled that Congress did not have the power to overrule Florida’s State sovereignty immunity protected by the Eleventh Amendment (maybe giving credence to the Ninth Amendment). This overruled the 1976 case between Fitzpatrick v. Blitzer when the Court held that State sovereignty immunity can be overruled via the Fourteenth Amendment. In Pennsylvania v. Union Gas the Court held that State sovereignty immunity can be overruled via the commerce clause. In the 1812 case between Schooner Exchange v. M’Faddon the Court held that a state has absolute and exclusive jurisdiction within its territory – State sovereignty immunity. From M’Faddon to Seminole Tribe it seems the Court has come full circle.

In the 2000 case between United States v. Locke the Court held certain state regulations for oil tankers and barges were preempted by federal law imposed by the Coast Guard using the Supremacy clause and commerce clause. In 2006 in United States v. Stewart the Court held that machine guns can be regulated under the commerce clause.

Gonzales v. Raich was decided in 2005 where the Court ruled that Congress has the power to regulate homegrown marijuana even if it is used for medical purposes. Thus the Court upheld the 1937 Marijuana Tax Act and the Controlled Substance Act. The Court cited Wickard v. Filburn where it was decided the government could regulate personal crops and cultivation. Scalia was wrong when he cited the necessary and proper clause for granting Congress this power. Raich changed the Court’s position over several recent cases trying to undo some of the vast limits created by the FDR administration for the commerce clause (Lopez and Morrison). In United States v. Lopez in 1995 the Court ruled that Congress could not regulate carrying an unloaded handgun in a school striking down the 1990 Gun-Free School Zones Act. The majority ruled that Lopez was a non-economic issue whereas most commerce clause cases are economic in nature; the gun had not been involved in interstate commerce; and finally there was no link between guns and education. Justice Breyer dissented and worried about the cumulative effect of thousands of students carrying handguns in schools (not really realistic and the guns are unloaded). He further argued that Congress has a “rational basis” for acting even if the commerce clause was not actually in play. The United States v. Morrison case of 2000 the Court decided parts of the federal Violence Against Women Act (VAWA) of 1994 were unconstitutional. Morrison was accused of rape but a Virginia grand jury refused to indict him because of a lack of evidence. The victim in the case then moved to sue Morrison under the VAWA. The Court correctly stated that there is a distinction between what is a local and what is a national crime or issue.

In the National Federation of Independent Business v. Sibelius in 2012 (ObamaCare), the Court threw a curveball. Although the Court held that the “mandate” to force Americans to buy insurance was unconstitutional and therefore, the commerce clause and necessary and proper clause were not applied properly in this law. However, Chief Justice Roberts provide Congress an out by carefully changing the wording in the “mandate” section to be a “non-coercive tax” making the law constitutional under Congress’s ability “to lay and collect taxes”. The Court also decided that the federal government could not withhold Medicaid funding if states decided not to implement ObamaCare – this was coercive and illegal. Roberts contended it was not the role of the Supreme Court to decide if a law is a good one or bad one, just whether it is legal or not.

Sunday, June 18, 2017

The Evolution of the Commerce Clause (Part III)

The 1946 case between North American Company v. Securities and Exchange Commission the Court held that the Public Utility Holding Company Act (PUHCA) was constitutional citing the commerce clause. The North America Company trust contained over 80 communications companies in 17 states. PUHCA laws forced North America Company to divest its holdings into just one company in an effort to break up electricity trusts and monopolies. This was similar to how Teddy Roosevelt used the Sherman Anti-Trust Act to break up the beef trusts in the early 1900s.

The Boynton v. Virginia case in 1960 was a civil rights case over African-Americans being barred from a bus terminal. The Court ruled that the law violated the Interstate Commerce Act of 1887. The purpose of the Interstate Commerce Act was to prevent railroad monopolies as well as price discrimination against farmers. The Boynton case is a simple Fourteenth Amendment equal protection clause violation. It is difficult to rationalize why the Supreme Court decided this issue based on the commerce clause. In a similar case Atlanta Hotel v. United States the Court upheld the Civil Rights Act of 1964 via the commerce clause. In this case the Atlanta hotel refused to rent rooms to African-Americans and since it this affected the travels of people it violated the commerce clause. The Court conceded there were other and probably more effective ways for Congress to abolish racial discrimination – i.e. the equal protection clause – other than the commerce clause. Also, in 1964 the Court held in the case Katzenbach v. McClung that Congress could use the commerce clause to stop racial discrimination at restaurants. Title II of the 1964 Civil Rights Act granted African Americans full access to public facilities including hotels and restaurants. The Court cited one of the worst possible cases when defending this ruling: Wickard v. Filburn. Once again, why not use the equal protection clause for what it was intended to be used: to stop racial discrimination.

Edison Company v. Montana was decided in 1981 and the Court held a state severance tax on coal did not violate the interstate commerce clause. Taxes under the commerce clause were decided on the standards set in the 1977 case Auto Transit v. Brady: 1. a clear relationship between state and taxpayer, 2. Interstate and intrastate taxes do not discriminate against each other, 3. there is a fair apportionment within the tax jurisdiction and 4. There is a fair relationship of service provided by the state to apply a tax. Justice Blackmun dissented because of his concern over a few items: Montana controlled about 25% of coal production and most of Montana coal came from federal lands.

The 1985 case Garcia v. San Antonio Metropolitan Transit Authority held that Congress had the power via the commerce clause to extend the Fair Labor Standards Act (FLSA) to the States. The FLSA was passed in 1938 and requires that state governments pay employees a minimum wage and overtime. In 1968 the Court held in Maryland v. Wirtz that Congress had the authority via the commerce clause to regulate wages and overtime for hospital and school employees (obviously, this is intrastate and not interstate commerce – the expansion of the commerce clause continues under the Warren Court). Justice Blackmun wrote the majority opinion and said that Congress could use the Constitution’s supremacy clause to preempt any state laws that conflict with FLSA standards. In her dissent, Justice Sandra Day O’Connor expressed concern over how interstate commerce power of Congress can be used to control every economic aspect in society. Justice Powell dissented saying “The State’s role in our system of government is a matter of Constitutional law, not legislative grace”. In the 1995 case United States v. Lopez, Justice Rehnquist did not overturn Garcia but emphasized the need to regulate or set standards for interstate commerce. The Garcia ruling overturned the 1976 case National League v. Usery where the Court claimed the FLSA could NOT be applied to the states. In Lopez, Justice Rehnquist concluded economic decision such as wages, overtime pay, and compensation were best decided by the states. For instance, a national minimum wage does not consider the cost of living in all of the states. In some states with a high cost of living, the minimum wage may not be enough, but in states with a low cost of living, the minimum wage could be detrimental to businesses and employment (commerce). For these reasons, the Federal government and Court have no business deciding economic decisions for the states: One size does not fit all.

By the 1990s some of the power of Congressional coercion and the commerce clause began to dwindle. In the 1992 decision for New York v. United States the court held that the Low-Level Radioactive Waste Policy (LLRWP) of 1985 exceeded Congress’s power under the commerce clause. However, only one of three provisions of LLRWP was found unconstitutional. Justice O’Connor found that the provision in question of the LLRWP attempted to “commandeer” or coerce state governments to participate in the program.

Thursday, June 15, 2017

The Evolution of the Commerce Clause (Part II)

In 1935 the case between Panama Refining Company v. Ryan the Court ruled that certain provisions of the National Industrial Recovery Act (NIRA) were unconstitutional. The Court found that the NIRA breached the use of the commerce clause because it provided the president with large amounts of unchecked power to dictate economic trade without any standards or criteria. The 1938 case involving the United States v. Carolene Products Company the Court began to set standards for applying the commerce clause (the Famous Footnote 4 case). While the Court used very low standards for economic issues, the Court applied higher standards for other laws affecting other areas of “commerce”. One standard was whether or not the law attempted to distort the political process and another standard was whether or not the law discriminates against a smaller minority groups (i.e. the power of majority groups over smaller groups). Carolene Products lost this case because their healthier products were falsely deemed unhealthier than other milk products. Hence, the dairy lobby won this case using false information and denied Carolene products the right to interstate commerce. The Supreme Court was making up rules (and using false data) to protect earlier New Deal decisions using substantive due process and the commerce clause. After all, siding with Carolene Products would set possible precedent to overrule FDR’s agenda. Carolene Products would be vindicated decades later.

The 1937 case Steward Machine Company v. Davis the Court upheld the unemployment compensation provision of the 1935 Social Security Act. In Steward, the Court showed it had a broad interpretation of Federal government powers over the states. Both the Social Security Act and the unemployment provision were coercive just as was every entitlement act to follow in American history. For instance, if states opted out of entitlement laws, then they would never recoup the Federal tax monies paid by its constituents. Justice Cardozo wrote “the petitioner confuses motive with coercion” since “The states are at liberty, upon obtaining the consent of Congress, to make agreements with one another”. That may be true, but the federal government never takes advice from anyone, it only dictates terms. There is a fine line between motive and coercion and that is precisely why laws should be constructed carefully. The Court also ruled that the Social Security Act were necessary and proper to promote the general welfare of the nation to fight the Great Depression. In his dissent, Justice McReynolds wrote “I cannot find any authority in the Constitution for making the federal government the great almoner of public charity throughout the United States”. Justice Sutherland correctly predicted that “encroachments upon other functions, will follow”. He also added “Imposing a tax that could be avoided only by contributing to a state unemployment compensation fund was effectively coercing each state to make law creating such a fund.” Steward marked the beginning of New Deal programs that were found constitutional by using the spending clause to promote the general welfare of the nation. The precedent for this decision was set in the 1935 case United States v. Butler. Although the decision invalidated many provisions of FDR’s 1933 Agriculture Adjustment Act, for some reason the Court felt compelled to provide an expansive interpretation of the spending clause as it pertains to the promotion of the general welfare of the nation. In fact, the Court suggested that Congress had powers not enumerated in the Constitution when using the spending clause. Also in 1937 the Court upheld the National Labor Relations Act (NLRA) of 1935 in National Labor Relations Board v. Jones and Loughlin Steel Company. After the steel company fired 10 employees for trying to unionize, they filed suit under the NLRA. For the first time in the FDR era the Court used the commerce clause to uphold economic regulations. This case as well as West Coast Hotel v. Parrish turned the tide for the New Deal program. Justices were now approving everything FDR passed instead of finding his laws unconstitutional and an encroachment of power. By 1938, FDR passed a new Agriculture Adjustment Act (AAA) and the Court in Wickard v. Filburn decided that a farmer could not grow more than what was allotted by the AAA because it would violate the commerce clause. Filburn was using the excess crops he grew to feed his farm animals and family, yet the Court decided that even this act violated the interstate commerce clause. So, it was legal for the government (under the AAA) to dictate how many acres of crops a farmer could grow; how much tonnage of crops could be harvested for sale; and how much of the crops can be used to feed your family and farm animals. If this does not violate the Tenth Amendment, then nothing will ever violate the amendment. In a similar case to Steward, in South Dakota v. Dole the Court held that Congress could withhold federal highway money if states did not raise the drinking age to 21. Liberals call the South Dakota ruling incentive, but conservative call it what it rightly is: coercion. Many individuals have been convicted of blackmail using similar types of “incentive” requests in exchange for money. Steward was a big shift in the Court who just two years earlier invalidated FDR’s National Industrial Recovery Act (NIRA) of 1933 in Schechter Poultry Company v. United States. This was a unanimous decision where the Court ruled that NIRA and FDR could not use the commerce clause for wage fixing, maximum work hours, and the right for unions to organize. The Court found NIRA violated the Tenth Amendment. The Court quickly changed its mind on economic regulations with West Coast Hotel Company v. Parrish in 1935. After Parrish the commerce clause began to grow in size and scope such as in cases like National Labor Relations Board v. Jones and Laughlin Steel Corporation in 1937. By 1995, the Court finally tried to reign in the limits of the commerce clause in cases such as United States v. Lopez and in Bond v. United States in 2014. In summary, FDR legislation went from unconstitutional to constitutional using broad interpretations of the commerce clause and the spending clause along with some coercive politics.

Sunday, June 11, 2017

Trump is Innocent

I do not like Trump. He is his own worst enemy. But the media will not even give him an opportunity to govern. I have been quiet about Trump because I wanted to see how this whole Russian collusion investigation played out. I did not think he was guilty and after the Jim Comey testimony, I am now convinced he is innocent and he should be given a fair opportunity to govern. Here are the reasons I believe Trump is innocent if everything Comey said was factual:

Comey admitted Trump was not under investigation or a target of an investigation. He also said that Trump told him to “nail” anyone in his circle that may have colluded with Russia. Comey also said that the General Flynn investigation was not complicit with the Russian collusion investigation. Thus, Trump in no way interfered in the Russia collusion investigation.

Trump “hoped” that Comey would find a way to be lenient on General Flynn. Trump never ordered (which he could do) Comey to stop the Flynn investigation. He only desired for Comey to be lenient on a “good guy”. Trump should not have done this but if Comey saw this as a directive to stop the Flynn investigation, he ignored a direct order. If Comey thought this was a crime or inappropriate he did not report it. And if Comey thought Trump was forcing him to do something he was uncomfortable with, then he should have resigned. For these reasons, I do not believe Comey really felt Trump’s “hope” was a direct order. It was a personal desire for Trump and a suggestion for Comey. Trump cleared the room because he realized what he was “suggesting” or “hoping” for may be frowned upon by others, so he wanted to make sure the conversation was private. But just because the conversation was done in private it does not logically follow that the meaning of the word “hope” changes. Liberals have a way of changing the meaning of words to fit their narrative and this is no different.

Attorney General Jeff Sessions and Representative Devin Nunes have recused themselves from the Russian and Flynn investigations. Robert Mueller was named Special Counsel to investigate these issues. If there was something to hide these things would not have happened. Why didn’t Loretta Lynch recuse herself in the Clinton case after meeting with her husband on a plane? Why was no special counsel ever created to investigate Fast and Furious, Benghazi, IRS targeting of conservative groups, DOJ targeting of the media, VA fraud, or Clinton’s email fiasco? Because Democrats had something to hide. Comey’s testimony points directly to how Loretta Lynch tried to influence the Clinton investigation. Why isn’t the Left upset with this type of Democratic collusion in an independent agency? Why isn’t the Left upset with the Democratic Party collusion to defeat Bernie Sanders? Collusion only matters if there is an “R” next to the person’s name. More importantly, the Trump administration did not try to stop the Comey testimony by using “executive privilege” as the Obama and Bush administrations used successfully to thwart investigations. If Trump had something to hide, they would have fought hard to stop Comey’s testimony.

Comey also testified that a vast majority of the information reported by the New York Times and Washington Post on the Russian Collusion ties to Trump were completely incorrect and thus, fake news.

All of the leaks were one sided: anti-Trump. Not one leak said the most important thing: Trump was not under investigation. When leaks are one sided and a vast majority of media reporting is proven false and leaks that would vindicate Trump are withheld, I am now skeptical of all reporting on this issue. It has also become alarming to learn that Comey is one of the leakers and for this he loses respectability and credibility because this violates FBI regulations even if the information is considered non-sensitive. Why would Comey do this? Comey’s opening statement proved he had an axe to grind and he wanted revenge on Trump. However, I do believe Comey’s testimony was for the most part the truth for fear there Trump taped the meeting.

So the million dollar question is why did Trump fire Comey? First, let’s face facts, Comey deserved to be fired. He botched the Clinton investigation (for many reasons I will not go into here) and then he botched the reopening of the Clinton case just days before the election. Trump fired Comey for what he said “over the Russian investigation”. Trump wanted to let the public know “he was not under investigation” to get his administration out from the Russian collusion dark cloud that has paralyzed his administration. Trump knew as long as the investigation went on it would be a liability to the administration unless the public understood some real facts instead of fake facts about the investigation. My guess is that Comey would not leak that Trump was not under investigation so Trump fired him and told the pubic what Comey told him “he is not under investigation”. Of course Comey had no issue leaking this information and more information once he was a private citizen with an axe to grind.

Comey’s testimony revealed crimes were committed but they were not by Trump: Comey’s leaking of information and Loretta Lynch’s manipulation of the Clinton investigation. Tim Kaine said of the Loretta Lynch criminal mishandling of the Clinton case “that is last year’s news”. We know the statute of limitations is more than a year for any crime but this is how Democrats think. Even Chris Matthews correctly points out that Comey’s testimony clears Trump of any Russian collusion hysteria. Yet, Comey’s testimony has done little to calm the Left’s insanity of wanting to impeach Trump.

Why doesn’t every one calm down and give Trump a chance to govern. If Trump is half as bad as the Left claims he will do a bad job and the Democrats can win back the White House. This fabrication of news is not making the media look good. And let’s not forget Trump got elected partly because the media did not treat him fairly. The media may just be giving Trump four more years because most people can see through the lies and deceit of the media anti-Trump frenzy.

Thursday, June 8, 2017

The Evolution of the Commerce Clause (Part I)

The Commerce Clause of the Constitution has grown in size and scope to limit federalism and liberty to the individual states. If Federalism is denied to the states, then it follows liberty is denied to the people. The greatest aspect of America is different laws governing each state allows individuals the freedom to live in a state of their liking. If the federal government forces all states to have common laws, federalism and individual liberty are gone. The Commerce Clause refers to Article 1, Section 8, clause 3 of the U.S. Constitution, which gives Congress the power “to regulate commerce with foreign nations, and among the several states, and with the Indian tribes.” From the early definition of “commerce” and from Madison’s writings in the Federalist Papers it is easy to determine that he had a narrow view of “commerce” to mean only “trade” between states, foreign nations, and Indian tribes. “Commerce” did not mean controlling production, manufacturing, or all economic parameters of businesses.

In Paul v. Virginia in 1869 the Court held that insurance policies were not protected under the commerce clause. However, Paul was overturned in the 1944 case between United States v. South-Eastern Underwriters Association. In this case, the Court held that the 1890 Sherman Anti-Trust Act applied to insurance companies citing the commerce clause. Congress passed the McCarran – Ferguson Act of 1945 in an attempt to limit the implications and impact of the South-Eastern Underwriters decision a year earlier. The United States v. E.C. Knight Company case in 1895 limited Congress’s power to control and regulate monopolies through the commerce clause and the Sherman Anti-Trust Act. In this case Congress tried to break up the Sugar Trust but the Court claimed “Refining was a local activity not subject to Congress regulation by the commerce clause” (as Madison asserted). Hence, action against manufacturing monopolies relied on state law until the 1930s and the FDR era.

In 1888 the Supreme Court decided in Kidd v. Pearson that there was a distinction between manufacturing and commerce (again as Madison asserted). The Court held that Iowa could prohibit the manufacturing of alcohol even if the product was going to be sold across state lines because it did not interfere with commerce. The Champions v. Ames case in 1903 upheld the Federal Lottery Act of 1895. This law prevented the buying and selling of lottery tickets across state lines via the interstate commerce clause. This ruling was important because it meant Congress could prohibit good from crossing state lines. In the Passenger Car Cases of 1899: Smith v. Turner and Norris v. Boston, the Court held that the commerce clause included regulation of people including immigrants when it struck down passenger taxes on ships.

The 1911 case between Southern Railway v. United States the Court held that Congress had the authority to apply the commerce clause to regulate intrastate safety on railways. In other words, Congress could demand intrastate trains be equipped with safety equipment to prevent injury and property damage on interstate trains.

In Hoke v. United States in 1911, the Court held Congress did not have the power to regulate prostitution using the commerce clause. Prostitution was clearly an issue up to the states to decide and explains the reason why prostitution is legal in Nevada and illegal just about everywhere else. However, in 1914 the case between Houston E. W.T. Company v. United States the Court ruled Congress could regulate intrastate commerce to control interstate commerce. The Court held that regulating railroad taxes within the state of Texas was needed so out of state railroad companies could also compete in Texas.

Hammer v. Dragonhart was decided in 1918 and the Court held that the regulation of child labor was not interstate commerce. Therefore, Congress does not have the power to regulate the manufacturing process and the products made by children outlawing the Keating – Owens Act of 1916. Justice Oliver Wendell Holmes in his dissent (Holmes is known as the great dissenter) said “the entire manufacturing process in the U.S. is under Congressional jurisdiction”. Holmes claimed that federal government prohibition laws prove that Congress can regulate any industry or product. However, prohibition was an Amendment to the Constitution. Hammer was overturned in 1941 in United States v. Darby Lumber Company. In Darby the Court upheld FDR’s Fair Labor and Standards Act (FLSA) of 1938 using the commerce clause to yield Congress the power to regulate economic conditions. This ruling limited the decision in Carter v. Carter Coal Company. This case was decided in 1936 and was over whether or not Congress had the power to regulate the coal industry. The Court ruled that “production and manufacturing” of products is not covered by the commerce clause which overruled the FDR administration’s Bituminous Coal Conservation Act which tried to control wages, overtime, and other economic factors in coal mining. Darby also upheld wage regulation for women in West Coast Hotel v. Parrish in 1935. In Darby, the Court held that the FLSA prevented States from using “substandard” practices to create an unfair economic advantage affecting commerce.

Sunday, June 4, 2017

The Dormant Commerce Clause (Part II)

Hunt v. Washington State Apple Company (1977): The Court struck down a North Carolina law that only allowed apple containers to be marked with a grade assigned by the USDA unconstitutional. The law probably infringed on the liberties of apple producers selling its product in North Carolina.

Philadelphia v. New Jersey (1978): The Court held that one state could not discriminate against another state’s commerce in any way. New Jersey was forced to accept waste from other states or stop its landfill waste disposal process even if it means undermining the safety of its residents. Once again the Court ruled in favor of federal power over a states right to protect the health and safety of its citizens.

Exxon v. Maryland (1978): The Court upheld a Maryland law that prohibited oil producers from operating service stations within the state claiming it did not violate the commerce clause.

Kassel v. Consolidated Freighters Corporation (1981): The Court struck down an Iowa law wanting to restrict the length of tractor trailers from 65 to 55 feet over safety concerns. The Court said “protectionism legislation is unconstitutional under the commerce clause, even if the benefits are related to safety than economics”. This essentially reversed the Supreme Court’s precedent in South Carolina Highway Department v. Barnwell in 1938 where the Court allowed weight and width requirements by South Carolina on its roads over safety concerns.

Sporhase v. Nebraska (1982): The Court ruled that a Nebraska statute forbidding the commercial exploration for water violated the commerce clause. Once again, this law was in place over safety concerns.

South-Central Timber v. Wunnicke (1984): The Court invalidated an Alaska law requiring a timber companies from processing their products in state before shipping the goods out of state.

Maine v. Taylor (1986): The Court ruled that a state law prohibiting out of state bait was constitutional. This law was an exception to the safety concerns because Maine could not properly determine if the bait contained a parasite or some other disease that would create an environmental issue. Blackmun wrote that “legitimate local purposes could not adequately be served by available nondiscriminatory alternatives.”

Quill Corporation v. North Dakota (1992): The Court ruled a North Dakota “use tax” on an out of state retailer was unconstitutional since orders were placed directly. This ruling was used by Amazon.com to justify charging customers no state sale taxes on internet orders.

Oregon Waste System v. Department of Environmental Quality of Oregon (1994): The Court held that Oregon’s surcharge or tax on waste violated the commerce clause because it charged out of state businesses three times what it charged in state businesses.

West Lynn Creamery v. Healy (1994): The Court held that a Massachusetts tax on milk to help local dairy farmers was unconstitutional. Scalia agreed saying the negative commerce clause can be used if it discriminates against interstate commerce or if the case is indistinguishable from a Court precedent.

Hughes v. Alexandria Scrap Corporation (1996): This case created what is known as the “market participant” exception to the dormant commerce clause. As long as a state is an active market participant and not just a market regulator then states could create laws favoring its citizens over out of state citizens.

Granholm v. Heald (2005): The Court ruled that laws in both New York and Michigan that permitted in state wineries shipping directly to customers but denied the same right to out of state wineries as unconstitutional.

United Haulers v. Solid Waste Management Authority (2007): The Court upheld a New York law that forced private waste management companies to deliver waste to a public facility did not violate the commerce clause. Scalia wrote “negative commerce clause is unjustified judicial invention” and Clarence Thomas wrote the dormant commerce clause “proved to be unworkable in practice”. Both Scalia and Thomas obviously changed from their earlier views on the dormant or negative commerce clause.

Kentucky v. Davis (2008): The Court upheld a Kentucky law which provides tax breaks to residents who buy state bonds claiming it does not violate the commerce clause.

The Supreme Court has allowed the commerce clause to be used to justify federal laws regulating industry over safety concerns. Yet, the Supreme Court has used the dormant commerce clause to strike down state laws regulating industry over safety concerns.

Wednesday, May 31, 2017

The Dormant Commerce Clause (Part I)

Most of us have heard of the commerce clause: Article 1, Section 8, clause 3 of the U.S. Constitution, which gives Congress the power “to regulate commerce with foreign nations, and among the several states, and with the Indian tribes.” But what is the Dormant Commerce Clause? It is the negative commerce clause where the Court has given themselves the power of jurisdiction over cases involving State restrictions or burdens over interstate commerce even in the absence of a conflict between federal statutes. In this article, many of the Dormant Commerce Clause cases in U.S. history are revealed and how this judiciary theory has further increased the size, scope, and power of the Federal government over the States.

Brown v. Maryland (1827): The Court held that a Maryland statute requiring importers of foreign goods had to purchase a license to sell those goods violated the commerce clause. Since, importers of goods from other states did not face the same burdens, this ruling was correct because it unfairly violated the liberties of Maryland importers.

Wilson v. Blackbird Creek Company (1829): The Court ruled that the state construction of a damn did not violate the commerce clause even though it may actually interfere with commerce at some point in the future. Chief Justice John Marshall first used the term “Dormant Commerce Clause” when writing the majority opinion for this case in what I believe to mean slowing down, interfering, or slightly delaying commerce activity, not stopping it. The Marshall Court applied the commerce clause properly to the states: State police power trumped federal police power unless it violated the liberties of individuals.

Coley v. Board of Wardens (1852): The Court upheld a Pennsylvania statute requiring all ships entering Philadelphia harbor to hire a local pilot did not violate the commerce clause. This was obviously intended as a safety requirement to protect life, liberty, and property of individuals using the harbor and it was not meant to delay commerce.

Wabash, St. Louis, and Pacific Railway Company v. Illinois (1886): This was a significant case because it severely limited state rights under the commerce clause. It was the first instance where the court allowed the federal government to intrude on state activities over economic issues. What’s worse, the result of the Wabash decision led to the introduction of the first regulatory agency in the federal government: The Interstate Commerce Commission.

Swift Company v United States (1905): The Court held that the federal government can regulate monopolies. This allowed Teddy Roosevelt to assault the “Beef Trust” for price fixing. Congress followed with the Pure Food and Drug Act and the Meat Inspection Act of 1906. This was the beginning of unlimited Federal authority over all economic issues via the commerce clause.

George W. Bush and Sons v. Malloy (1925): The Court held a Maryland law requiring business carriers within the state to purchase licenses or certificates to engage in commerce illegal. This ruling was similar to Brown v. Maryland one hundred years earlier.

Edward v. California (1941): The Court struck down California’s “indigent person” law as unconstitutional in violation of commerce clause because it denies certain person’s from other states the right to move to California. This is a sound decision because it protects individual liberty.

Southern Pacific Company v. Arizona (1945): The Court held an Arizona law placing railway car limits on passenger and freight trains for safety purpose unconstitutional. Justices Black and Douglas dissented arguing the difference between “discrimination and burdens placed on interstate commerce.” States should be allowed to enact laws to protect the safety and health of its citizens without government intrusion because they view it as either a “burden or that the law discriminates”.

Dean Milk v. Madison (1951): The Court held that a municipal law requiring all milk sold in Madison Wisconsin to be pasteurized at an approved plant within 5 miles of the city violated the commerce clause. Once again, this law was enacted to protect the safety and health of Madison residents.

Miller Brothers v. Maryland (1954): The Court ruled that an out of state business was not responsible for collecting a “use tax” from Maryland citizens who purchased product from an out of state vendor. Since Maryland residents went directly to Delaware to buy the products, Miller Brothers had no “contact” with Maryland. However, the Court ruled that Maryland citizens were responsible for the tax.

Bibb v. Navajo Freight Lines (1959): The Court held that an Illinois law requiring trucks to have curved mudguards instead of straight ones for safety purposes violated the commerce clause. This may be the most ridiculous abridgement of federal power since this statute did nothing to mitigate commerce. The law was enacted merely for safety and health purposes.

Florida Avocado Growers v. Paul (1963): The Court held that a California law imposing fat standards on Avocados did not violate the commerce clause or the equal protection clause.

National Bellas Hess v. Illinois (1967): The Court held that the commerce clause prohibits one state from levying a use or sales tax on out of state businesses who have minimal contact with the state: such as with orders filled through the mail only. This ruling was consistent with the 1954 Miller Brothers case.

Pike v. Church (1970): The Court struck down an Arizona law requiring Cantaloupe growers from placing the state symbol on packaging. The Court ruled it was too high a cost burden to ask growers to adhere to the law. Church did, however, ship his Cantaloupe to California to be packaged. The Court was probably right that the law infringed on Church’s liberties, but it had very little to do with limiting commerce.

Friday, May 26, 2017

How the Supreme Court Denies Federalism and Liberty (Part III)

The 1985 case Garcia v. San Antonio Metropolitan Transit Authority held that Congress had the power via the commerce clause to extend the Fair Labor Standards Act (FLSA) to the States. The FLSA was passed in 1938 and requires that state governments pay employees a minimum wage and overtime. In 1968 the Court held in Maryland v. Wirtz that Congress had the authority via the commerce clause to regulate hospital and school employee wages and overtime (obviously, this is intrastate and not interstate commerce – the expansion of the commerce clause continues). Justice Blackmun wrote the majority opinion and said that Congress could use the Constitution’s supremacy clause to preempt any state laws that conflict with FLSA standards. In her dissent, Justice Sandra Day O’Connor expressed concern over how the interstate commerce power of Congress can be used to control every economic aspect in society. Justice Powell dissented saying “The State’s role in our system of government is a matter of Constitutional law, not legislative grace”. In the 1995 case United States v. Lopez Justice Rehnquist did not overturn Garcia but emphasized the need to regulate or set standards for interstate commerce. The Garcia ruling overturned the 1976 case National League v. Usery where the Court claimed the FLSA could NOT be applied to the states. Justice Rehnquist concluded economic decision such as wages, overtime pay, and compensation were best decided by the states. For instance, a national minimum wage does not consider the cost of living in all of the states. In some states, with a high cost of living, the minimum wage may not be enough, but in states with a low cost of living, the minimum wage could be detrimental to businesses and employment. For these reasons, the Federal government and Court have no business deciding economic decisions for the states.

By the 1990s some of the power of Congressional coercion and the commerce clause began to dwindle. In the 1992 decision for New York v. United States the court held that the Low-Level Radioactive Waste Policy (LLRWP) of 1985 exceeded Congress’s power under the commerce clause. However, only one of three provisions of LLRWP was found unconstitutional. Justice O’Connor found that the provision in question of the LLRWP attempted to “commandeer” or coerce state governments to participate in the program.

In the 1988 case South Carolina v. Baker the Court ruled that the Tax Equity and Fiscal Responsibility Act of 1982 (TEFRA) did not violate the Tenth Amendment. The federal government continued its practice of allowing a federal tax exemption for state bonds except in the case of bearer bonds. South Carolina sued to reinstate all its bonds for tax exempt benefits and status. The 2000 case between Reno v. Condon the Court held the Driver’s Privacy Protection Act of 1994 (DPPA) was Constitutional. Chief Justice Rehnquist wrote the unanimous decision citing the commerce clause in a challenge by the state of Nevada. Since Nevada was selling personal information of driver license applicants, the Court ruled that they violated the commerce clause because some of that information can travel across state lines. Rehnquist also held that the DPPA law was not coercive in any matter. The Court’s imagination for creating new rights in the Constitution is only matched by the Court’s imagination to find applications for the commerce clause. In Hunter it was established that States can make bad laws. The Nevada law’s attempt to get more revenue was not much different than ObamaCare’s mandate to get more revenue – both uniquely bad in nature. In Reno the Court assumes some information will cross state lines without actual proof that it is happening. However, in Filburn, it was established that 0% of the goods have to cross state lines for it to be considered violating interstate commerce. The Court’s rationale was that since Filburn had more crops to feed his assets, less crops would have to travel to his state. The DPPA is further proof of how powerful and how imaginative the federal government and the Court has become in applying the commerce clause. There is one question the Court has refused to answer over years of strengthening the commerce clause: What State economic activity is free from any commerce clause intrusion?

The Lopez, Bond, and New York decisions provided some hope over the past two decades. There was one other promising case where the Court emphasized state rights. In the 1997 case Printz v. United States the Court held certain provisions of the Brady Handgun Violence Prevention Act of 1993 (BHVPA) were unconstitutional. BHVPA required state attorney generals to create a background check system to prevent the sales of guns to people prohibited to own guns such as felons. Printz objected to state officials being coerced into executing a federal law. Justice Antonin Scalia agreed that the federal government drafting state officials to run its programs and laws is unconstitutional citing New York v. United States. In his dissent Justice John Paul Stevens said the government could use the commerce clause to regulate handguns as well as the necessary and proper clause to pass any law it sees fit to carry out its enumerated powers (gun control is not an enumerated power of the federal government). The Printz ruling was instrumental to the Court applying the Second Amendment to the States in Heller v. DC or McDonald v. Chicago (Just as the Warren Court applied other Bill of Right amendments to the states in the 1960s). Hence, Justice Steven’s commerce clause claims in his Printz dissent were proven wrong.

Monday, May 22, 2017

How the Supreme Court Denies Federalism and Liberty (Part II)

The 1937 case Steward Machine Company v. Davis the Court upheld the unemployment compensation provision of the 1935 Social Security Act. In Steward, the Court showed it had a broad interpretation of Federal government powers over the states. Both the Social Security Act and the unemployment provision were coercive just as was every entitlement act to follow in American history. For instance, if states opted out of entitlement laws, then they would never recoup the Federal tax monies paid by its constituents. Justice Cardozo wrote “the petitioner confuses motive with coercion” since “The states are at liberty, upon obtaining the consent of Congress, to make agreements with one another”. That may be true, but the federal government never takes advice from the states. There is a fine line between motive and coercion and that is precisely why laws should be constructed carefully. The Court also ruled that the Social Security Act were necessary and proper to promote the general welfare of the nation to fight the Great Depression. In his dissent, Justice McReynolds wrote “I cannot find any authority in the Constitution for making the federal government the great almoner of public charity throughout the United States”. Justice Sutherland correctly predicted that “encroachments upon other functions, will follow”. He also added “Imposing a tax that could be avoided only by contributing to a state unemployment compensation fund was effectively coercing each state to make law creating such a fund.” Steward marked the beginning of New Deal programs that were found constitutional by using the spending clause to promote the general welfare of the nation. The precedent for this decision was set in the 1935 case United States v. Butler. Although the decision invalidated many provisions of FDR’s 1933 Agriculture Adjustment Act, for some reason the Court felt compelled to provide an expansive interpretation of the spending clause as it pertains to the promotion of the general welfare of the nation. In fact, the Court suggested that Congress had powers not enumerated in the Constitution when using the spending clause. By 1938, FDR passed a new Agriculture Adjustment Act (AAA) and the Court in Wickard v. Filburn decided that a farmer could not grow more than what was allotted by the AAA because it would violate the commerce clause. Filburn was using the excess crops he grew to feed his farm animals and families, yet the Court decided that even this act violated the interstate commerce clause. So, it was legal for the government (under the AAA) to dictate how many acres of crops a farmer could grow; how much tonnage of crops could be harvested for sale; and how much of the crops can be used to feed your family and farm animals. If this does not violate the Tenth Amendment, then nothing will ever violate the amendment. In a similar case to Steward, in South Dakota v. Dole the Court held that Congress could withhold federal highway money if states did not raise the drinking age to 21. Liberals call the South Dakota ruling incentive, but conservative call it what it rightly is: coercion. Many individuals have been convicted of blackmail using similar types of “incentive” requests in exchange for money. Steward was a big shift in the Court who just two years earlier invalidated FDR’s National Industrial Recovery Act (NIRA) of 1933 in Schechter Poultry Company v. United States. This was a unanimous decision where the Court ruled that NIRA and FDR could not use the commerce clause for wage fixing, maximum work hours, and the right for unions to organize. The Court found NIRA violated the Tenth Amendment. The Court quickly changed its mind on economic regulations with West Coast Hotel Company v. Parrish in 1935. After Parrish the commerce clause began to grow in size and scope such as in cases like National Labor Relations Board v. Jones and Laughlin Steel Corporation in 1937. By 1995, the Court finally tried to reign in the limits of the commerce clause in cases such as United States v. Lopez and in Bond v. United States in 2014.

The 1947 case United Public Workers v. Mitchell found that the Hatch Act of 1939 did not violate the First, Fifth, Ninth, or Tenth Amendments of the Constitution. The Hatch Act placed political activity restrictions on federal employees. The 1800s “Doctrine of Privilege” which claimed that “public employment was a privilege, not a right” and hence, restriction can be placed on employees. Justice Stanley Reed wrote the majority decision. Reed noted that in United States v. Wurzbach in 1930 the Court upheld the “Doctrine of Privilege” even though it violated rights guaranteed by the Constitution. The Ninth Amendment says “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage other retained by the people”. Liberals falsely claim that the Ninth Amendment guarantees rights not mentioned in the Bill of the Rights. The Ninth Amendment actually assures that nothing written in the Constitution can deny or cancel any of the Amendments. However, Justice Reed claimed that since the Ninth and Tenth amendments are “reserved” powers, rather than enumerated powers, and therefore, they carry less weight than say the First or Fifth Amendments. The Mitchell decision was upheld in 1973 in United States Civil Service Commission v. National Association of Letter Carriers. The Mitchell decision was only one of seven Tenth Amendments cases decided before 1965 and it was the only way to do so in a substantive way. Many legal scholars do not agree with Reed’s assessment of the Ninth and Tenth Amendment because it basically makes them meaningless compared to other Amendments. However, the fact that Reed uses the Ninth Amendment together with the Tenth Amendment it does overall strengthen the Tenth Amendment, but not to the degree of the first eight Bill of Rights amendments.

Thursday, May 18, 2017

How the Supreme Court Denies Federalism and Liberty (Part I)

The Supreme Court has denied state rights time and time again. The Tenth Amendment says: “The powers not delegated to the United States, by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people”. The Court circumvents state rights through the following techniques: making up imaginary rights, Constitutional avoidance, coercion, mitigating the strength of the Tenth Amendment, the commerce clause, treaties, the spending clause, the general welfare clause, the necessary and proper clause, and the supremacy clause. To view how the Court uses imaginary rights such as the right to privacy to breach State rights please read my articles: “The Supreme Court on Sex, Obscenity, and Marriage” or the “Liberal Evolution of Due Process”.

The 1906 case between Hunter v. Pittsburgh the Court set the standard that state sovereignty ruled over local governments and hence state laws trump local municipality laws. “Although the inhabitants and property owners may, by such changes, suffer inconveniences, and their property may be lessened in value by the burden of increased taxation, or for any reason, they have no right, by contract or otherwise, in the unaltered or continued existence of the corporation or its powers, there is nothing in the Federal Constitution which protects them from these injurious consequences. The power is in the state, and those who legislate for the state are alone responsible for any unjust or oppressive exercise of it”. This decision is important because the outcome of this case is very similar to how the Supreme Court decides cases involving the federal government and the states: Federal government laws trump state laws.

The 1920 case Missouri v. Holland held that a Treaty (Migratory Bird Treaty Act of 1918 - MBTA) trumped the Tenth Amendment via the supremacy clause. The MBTA restricted hunting of migratory birds. Congress purposefully made a Treaty with Canada (England) to avoid or circumvent a Tenth Amendment fight. The state of Missouri argued that the Federal government could not create a Treaty over the subject of birds. Justice Oliver Wendell Holmes wrote the majority opinion stating that treaty provisions were not questionable by the states. Holmes also went on to declare that the Constitution is a living document and hence, allowed to change over time. The Missouri ruling led to proposed amendments that would limit the scope of Treaties created by the executive branch to breach state rights (they never passed). Missouri has not been overruled but recent precedent has probably made it moot. For instance, the 1914 decision in Bond v. United States the Court held that the Chemical Warfare Act could not be applied to the States. Clarence Thomas was the first to place a standard on treaties when he wrote that a treaty cannot regulate “purely domestic affairs”. Scalia called Holmes’s opinion in Missouri as “unreasoned”. Although Chief Justice Roberts used Constitutional avoidance and declined to define limits of Treaty power (as Thomas tried), it was clear limits existed based on the 9-0 unanimous decision.

Constitutional avoidance was used in the 1936 case Ashwander v. Tennessee Valley Authority (TVA). The Court avoided addressing the challenge to the Constitutionality of the government program (TVA): Does the Federal Government have the right to create an energy company to compete against the private sector? Instead, the Court upheld Congress’s authority to generate electricity by validating its business contracts. The Court also concluded Congress had commerce authority to construct a damn to create electricity. Justice Brandeis concluded that the plaintiffs had no right to interfere in corporate governance under the substantive due process of the law. Brandeis further concluded due to separation of powers that one branch of government should not “encroach upon the domain of another”. Brandeis authored a doctrine of seven rules outlining a convoluted theory called Constitutional avoidance which was used to bypass questions placed before the Court. Although the government has no Constitutional authority to create an electricity company, through avoidance the Supreme Court implicitly granted the Federal Government the authority to do so. Brandeis separation of powers argument is hard to swallow. According to Hamilton in the Federalist Papers, the goal of the Supreme Court is to provide a check and balance over the Legislative branch to ensure they are not passing unconstitutional legislation.

Sunday, May 14, 2017

The Supreme Court on Sex, Obscenity, and Marriage (Part V)

People are obviously missing the point on the importance or significance of marriage in Windsor and Obergefell. The only reason these cases are important is not out of love, but for economic concerns. Liberals argue that the Court ruled in favor of love. That is not true. First, the Court cannot rule using emotion over law. Secondly, in Windsor she faced much higher estate tax rates after her partner died. Windsor did not fight the issue of same sex marriage when her partner was alive. It is important to note that married couples do have several federal tax advantages over single persons. And in the private sector some companies may provide lower benefit costs for partners and spouses. Therefore, the question that needs to be addressed is why marriage is a basis for any economic advantages over single persons. One purpose is to promote families. Families are important to the economic survival of the country. For instance, more tax payers are needed to pay for the future unfunded liabilities generated by the government entitlement system. Of course, this reason does not necessarily include the usefulness of gay marriages unless they adopt children.

Marriage used to be a purely religious function. However, today, the number of civil marriages are increasing (gay marriage is one reason). Today, about two-thirds of all marriages are religious in nature. However, the definition of a religious marriage and civil marriage are vastly different. Religious marriages tend to have the traditional definition for marriage (between one man and one women) and civil marriages omit the gender requirement from the definition or marriage. More importantly, statistics show that religious marriages have a much higher chance of success (close to 40% better). For these reasons, Obergefell and Windsor, may lead to a complete separation between civil and religious marriages. For instance, churches do not have to file a civil wedding paperwork with the state – they generally do it out of courtesy. Furthermore, just as the Catholic Church can deny a heterosexual marriage for compatibility issues they can deny a homosexual marriage (hence deny does not mean discrimination). If marriage was truly a religious function (as was intended by traditional American customs) then it would be easy to rule upon Windsor and Obergefell. Thomas Jefferson wrote that the “establishment clause” of the First Amendment provided for the separation of church and state. This philosophy was upheld in Reynolds v. United States in 1879 and Everson v. Board of Education in 1947. Hence, DOMA would be unconstitutional on the grounds the law violates separation of church and state (Establishment Clause). Besides, the federal government would have no reason to pass DOMA in the first place if all marriages were religious. And Obergefell would be denied the right to gay marriage for the same reason as the DOMA case.

The question that needs to be resolved are the unfair and unequal treatment of citizens in the federal tax scheme. If taxes were fair to all; if all corporate benefits allowed spouses, friends, and partners to be added at cost; and marriage was only recognized by the church and not the state or federal governments then Obergefell and Windsor would have no meaning (marriage does not provide any advantage). In Windsor, the question of marriage was not the issue since Windsor was single because her partner died when she filed suit. Therefore, the question before the Court was not the “unfairness” of marriage, but the “unfairness” of the federal government’s tax code. If single people can be treated differently than married people under the federal tax code and it is not seen to violate the equal protection clause of the Fourteenth Amendment, then it is hard to reason how gay marriage and traditional marriage are seen to be equal under the equal protection clause. This is especially true for traditional marriages held within churches. After all, without traditional marriage the human race would cease to exist which makes it vastly different in nature than gay marriages.

Thursday, May 11, 2017

The Supreme Court on Sex, Obscenity, and Marriage (Part IV)

In the 2003 case Lawrence v. Texas, the Court overturned Bowers and outlawed all homosexual sodomy laws in the 13 states that still has such statutes. Justice Anthony Kennedy wrote the majority decision saying sodomy was protected through the right of privacy (Griswold) obtained via the due process clause of the Fourteenth Amendment. Kennedy described the “right to privacy” found in Griswold as “the beginning point” in the evolution of concepts found in Lawrence. Sandra Day O’Connor voted with the majority but felt the Texas law violated the equal protection clause of the Fourteenth Amendment. Justice Clarence Thomas in his dissent used the same argument as Justice Potter Stewart in his dissent of Griswold: “it is a silly law, but still constitutional”. Justice Antonin Scalia in his dissent proclaimed many of the arguments used by the majority opinion could be used to overturn Roe v. Wade. The Lawrence precedent led to other sex cases on consensual incest, fornication, and consensual statutory sex decided in state courts. Remember the “Slippery Slope” warned by Justice White in Bowers? He was right, the Lawrence ruling opened the door for people trying to find a “constitutional right” for sleeping with their sister or under aged students. These sex acts may be taboo in American history or tradition, but that has not stopped the Court in past to find these types of issues constitutional. Based on Lawrence, and the right to privacy, it seems any act of sex is Constitutional. Once again, the right of privacy is a broad and ambiguous term that basically has no limits and the Court has failed to set any standards on the meaning of privacy.

The 2013 case United States v. Windsor overturned the 1996 Defense of Marriage Act (DOMA) on the basis of the Fifth Amendment’s equal protection clause. DOMA defined marriage as a union between one man and one woman. Windsor was married in Canada with her partner but their marriage was not recognized in the United States. After Windsor’s partner died, she owed a huge estate tax that would have been much less if the Federal government recognized her marriage. Antonin Scalia in his dissent claimed that the Supreme Court did not have jurisdiction to review the case nor the power to invalidate a democratically enacted law. Scalia also argued that the majority opinion is wrong in assuming that the Court has the final say on federal government laws. Alito once again argued that same sex marriage is not deeply rooted in American tradition to qualify as a substantive due process right. DOMA was merely a definition of marriage as being between one male and one female. Marriage is the cornerstone of all life on earth.

The landmark gay marriage case in 2015 was Obergefell v. Hodges. The Court ruled that gay marriage was legal based on both the equal protection and due process clauses of the Fourteenth Amendment. The case was decided by a 5-4 decision with the same result as United States v. Windsor (Same Justices concurring and dissenting). All states now have to issue same sex marriage licenses and recognize all same sex marriages. The majority decision cited Griswold’s right for privacy; Loving v. Virginia that provided the right for biracial marriages; and Lawrence v. Texas that provided the right for homosexual sodomy. Chief Justice John Roberts wrote the dissenting opinion and said that the majority decision is based on moral convictions and not the law. He also argued that the majority opinion opens the door for the legalization of polygamy and the decision will have consequences against religious freedom. Roberts further argues that the right to privacy is not at issue since gay behavior is not subject to government intrusion or punitive action. Justice Samuel Alito wrote a dissent citing Washington v. Glucksberg which states the due process clause only protects values or traditions that are deeply rooted in American history. Justice Clarence Thomas states the only liberty protected by the due process clause is that from government restraint and not a government entitlement such as a marriage license. Justice Antonin Scalia argues that by deciding gay-marriage, the national democratic process has come to a halt. The Court decision wiped out hundreds of statutes and laws in all 50 states. Most landmark civil-rights issues are decided by amending the Constitution: Slavery or women’s right to vote. Is it right to consider gay marriage as being the same thing as traditional marriage? An apple and orange are both types of fruit but they are not the same or equal. Gay couples can adopt and raise a family, but not in the traditional sense of childrearing. Citing Loving makes little sense because theirs was a traditional marriage. Citing Griswold makes little sense based on Roberts point and the fact that marriages are not private, they are open for all to see with a government record. And citing Lawrence makes no sense because single couples can partake in sex just as homosexual partners partake in sodomy. By changing the gender clause in the definition of marriage it opens up the argument for changing the number requirement of 2 in the definition of marriage or even that marriage has to be between humans. Does a marriage between 5 people require equal protection under the law or does a dog require equal protection under the law for being wed to its owner? It is a “slippery slope” when the Court feels compelled to overstep its bounds of the Constitution and interfere on state matters.

Monday, May 8, 2017

The Supreme Court on Sex, Obscenity, and Marriage (Part III)

The 1973 case between Roe v. Wade decided by a 7-2 margin declared that a Texas statute making abortion illegal was unconstitutional based on the right of privacy (Griswold) guaranteed through the due process clause of the Fourteenth Amendment. The Court did not use the rational of applying the right of privacy by means of the Ninth Amendment as was also done in Griswold. Justice Harry Blackmun wrote the majority ruling and obviously was not influenced by the opposing argument wanting a right to life for a fetus. Justice William Rehnquist and Byron White wrote dissenting opinions. Rehnquist argues that the framers of the Constitution were not aware of abortion issues in 1789 (hence abortion issues have no federal jurisdiction). Connecticut placed the first abortion laws on the book in 1821. When the Fourteenth Amendment was drafted in 1868, there were over 30 state and territory laws limiting abortion, 21 of which remain on the books today. The Roe decision invalidated hundreds of laws and statutes in all 50 states. Like Buck, Roe is a discriminatory inhumane act against fetuses. Margaret Sanger, the founder of Planned Parenthood started her mission of population control (not just birth control) back in 1914. Both Roe and Buck are population control measures. Today, Planned Parenthood sells aborted fetal tissue to research outlets. That is not a crime, but what is a crime is that Planned Parenthood has a monetary incentive to influence women to have an abortion. This is analogous to having a sitting Senator also being a lobbyist for Big Oil companies. This is a conflict of interest. And, most importantly, if first term fetuses are not considered living persons then why are their organs and tissues needed to cure ailments in humans that synthetic drugs cannot? Premature babies live at 20 weeks and some born at 13 weeks live, but only for a short time. Since Liberals declare themselves the Party of science it should be apparent to them that a baby’s (fetus) nervous systems is developing in the first trimester and they therefore have the ability to feel pain. An abortion (with the absence of a crime or health issue to the mother) is analogous to a spouse killing their partner to avoid a divorce. There are better solutions than to kill a fetus – such as adoption. If the government or Planned Parenthood placed more time and emphasis into the subject of adoption then maybe there would be little need for abortions. It is ironic that Justice Brennan talks about “state government intrusion” in many of his opinions but the Court legalizes, mostly unnecessary, medical procedures for sterilization and abortion. What can possibly be more federally intrusive governance than the decisions for Korematsu, Buck, and Roe?

The 1986 case Bowers v. Hardwick, in a 5-4 decision, the Supreme Court upheld the constitutionality of a Georgia sodomy law. Although the law did not specify any difference between consensual homosexual sodomy and heterosexual sodomy, the majority decision of the Court based its decision on the former. Justice Byron White wrote the majority opinion stating “to claim that a right to engage in such conduct is deeply rooted in this Nation’s history and tradition or implicit with the concept of ordered liberty is at best, facetious”. In other words, in the past the Court has provided “substantive due process” rights not listed in the Constitution if they were “deep rooted in American traditions”. Obviously, homosexuality was not an American tradition (nor was the right to an abortion or contraception). In fact, homosexuality was taboo in American and world history and is still taboo to most religious Americans. However, with social changes in society occurring over time, homosexuality is much more tolerated today, but its acceptance in not deep rooted in American history. Justice White also warned about the potential implications of going down the path of a “slippery slope” when it comes to ruling on other sex laws. Justice Harry Blackmun wrote the dissent and did not understand why the majority opinion focused solely on “homosexual activity”. Justice John Paul Steven’s dissent cited Griswold v. Connecticut and Eisenstadt v. Baird. In Griswold the Court found a Connecticut statute unconstitutional that denied contraception to married couples based person’s right to privacy. Although privacy did not exist in the Constitution the Court made up this right to rule the Connecticut law unconstitutional. In Eisenstadt the Court conversely found a Massachusetts statute unconstitutional that denied contraception to unmarried persons based on the equal protection clause of the Fourteenth Amendment and the right to privacy.

There were a couple of interesting aspects to the Bowers case. First, Georgia District Attorney, Lewis Slaton, did not prosecute the sodomy charge because he felt the law should not be used to prosecute consensual sex. Secondly, Blackmun revealed that his openly gay clerk, Pamela Karlan, wrote his dissent. Thirdly, most states invalidated their sodomy laws in the years following the Bowers decision (even though the law was upheld – social changes influence states to change laws). By 2003, only 13 states continued to have sodomy laws on the books. And finally, it was extremely rare when sodomy laws were used against consensual sex or in the privacy of someone’s home (no one would know if the act was being done in privacy). So it begs to question: Why did the Supreme Court even rule on this case since there was no conviction or punitive damages? Why would Blackmun let a gay clerk write the opinion? Deciding cases on emotion and not the law is a serious offense in our judicial system. Finally, why is the Court deciding cases on issues where State statutes and laws are already evolving to keep up with social changes in our environment (Let alone the Court has no standing in sodomy cases as Justice Harlan points out in Roth on obscenity)?

Friday, May 5, 2017

The Supreme Court on Sex, Obscenity, and Marriage (Part II)

Griswold was a director of a Planned Parenthood clinic and was arrested and convicted for handing out conception to women at the birth control clinic. In 1961, the Supreme Court refused to hear a similar case, Poe v. Ullman since the plaintiffs had not been charged or faced prosecution. Griswold and Planned Parenthood actively sought a case to challenge the contraception law. Nobody would have ever predicted the paramount significance of this case. The imaginary (substantive) right to privacy lead to many more rights not found in the Constitution: the right of birth control for unmarried couples (Eisenstadt v. Baird); the right of abortion for women in Roe v. Wade in 1973; and the right to homosexual sodomy (Lawrence v. Texas) in 2003. All of these rights according to the Court are guaranteed through the imaginative and ambiguous right to privacy. Privacy is a very broad subject, and the Court did nothing to set any definition or standards for privacy as our Founding Fathers did in the Bill of Rights. Griswold may be the most influential decision in the Court’s history. Yet, it was a case over a dying and hardly used statute and the majority opinion could not even agree on how to read its substantive due process (imaginary) right to privacy into the Constitution. If the right of privacy is in the constitution, one would imagine that the seven majority Justices could agree upon a standard or theory as to how to apply the substantive due process principle to guarantee the right of privacy.

The Loving v. Virginia decision in 1967 invalidated laws prohibiting interracial marriages based on both the due process and equal protection clauses of the Fourteenth Amendment. The Loving decision was precisely the reason the Fourteenth Amendment was ratified: To protect a group of people (in this case African-Americans) from inhumane treatment and or discriminatory laws and statutes. This decision was sound.

The 1972 case Eisenstadt v. Baird established the right for unmarried people to possess contraception striking down a Massachusetts statute based on the equal protection clause of the Fourteenth Amendment. Justice William Brennan wrote the majority opinion citing that the Massachusetts law lacked a rational basis that the law was used to protect the public health. He also cited Griswold v. Connecticut that since States could no longer withhold contraception to married couples therefore, it follows that States cannot withhold contraception to unmarried persons (also based on the right to privacy). Oddly, Brennan’s ruling conceded that states may prohibit sex outside of marriage. If that is true, then why would unmarried people need contraception? Wouldn’t providing single people contraception influence them to break the law by having sex? If prohibiting sex for unmarried people does not violate the equal protection clause then it would follow that denying unmarried people contraception should not violate the equal protection clause either. Brennan’s statement: “If the right of privacy means anything, it is the right of the individual, married or single, to be free from unwarranted government intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child” has led Eisenstadt to be cited in well over 50 Supreme Court cases. Of course, the Eisenstadt precedent resulted in the Court overruling a New York statute in Carey v. Population Service International prohibiting contraception distribution for minors under 16. While deciding these cases the Court never considered questions such as would the availability of contraception lead to more or less promiscuity? If prosecuting sex outside of marriage is legal, then why isn’t denying contraception illegal? Why are only State government laws intrusive to individuals but not Supreme Court rulings? In fact, in Hunter v. Pittsburgh the Court ruled in 1906 that State laws trump municipality laws regardless to how good or bad they may be. In other words, bad State laws can still be constitutional.

To better understand the evil nature of the Court (government intrusion) we can turn to two of the most horrific decisions in the history of the Supreme Court: Buck v. Bell in 1927 and Roe v. Wade in 1973. In Buck v. Bell, the Court upheld a Virginia law for the compulsory sterilization of “intellectually disabled” persons by a vote of 8-1. The Court said the law did not violate the due process clause of the Fourteenth Amendment. This is crazy! If there was ever a time to use the due process clause of the Fourteenth Amendment, Buck v. Bell was it! This law was not only discriminatory but it was inhumane treatment toward a specific group of people. The Fourteenth Amendment was written to not only end discrimination but to stop the barbaric inhumane treatment toward a race of people: African-Americans. Similarly, in 1944, the evil Court upheld a FDR executive action to intern Japanese Americans (Korematsu v. United States). This was no better behavior than Hitler interning Jews in concentration camps. This was not only discrimination but barbaric inhumane treatment toward a specific race of people (German-Americans did not face the same fate during WWII) covered specifically by the due process clause of the Fourteenth Amendment. The lone dissenting justice in the Buck case (Pierce Butler) did not write a dissenting viewpoint (another travesty of the case). In the majority opinion, the so called “Great” Justice Oliver Wendell Holmes wrote “three generations of imbeciles are enough” about the Buck family. Hence, Carrie Buck was sterilized, but she did lead a productive life. The goal of sterilization was to create an “optimum gene pool” based on the theories of eugenicist Harry Laughlin. Hitler and Nazi Germany used Laughlin’s models to “prevent diseased offspring”. At the Nuremberg war crimes trials after WWII, Nazi doctors on trial quoted Holmes’s majority opinion in their defense. The implications of the Buck decision not only created more sterilization laws, but they were enforced more strictly (few states had statutes before Buck and they were barely enforced). The 1942 case Skinner v. Oklahoma did not overturn Buck but it discouraged most sterilizations (Buck has never been overturned, nor has Korematsu). After Skinner states began to remove sterilization laws from their books and sterilizations finally ended in the early 1960s (no thanks to the Supreme Court). One may ask, if a state can legally sterilize a person, then what is the big deal if two states have a dumb law such as denying contraception to married people?

Monday, May 1, 2017

The Supreme Court on Sex, Obscenity, and Marriage (Part I)

The Constitution mentions nothing about sex, obscenity, and marriage, but that has not stopped the Federal government and Supreme Court from infringing on State rights. The Court interferes on State rights by using moral convictions to conjure up imaginary rights or standards to push its agenda.

The Roth v. United States case in 1957 created a standard for what constitutes obscene material that is not protected by the First Amendment. The Court upheld the conviction of Roth in this case by a 6-3 vote. The Court defined obscenity as a “dominate theme taken as a whole appeals to the prurient interest to the average person, applying contemporary community standards”. William Brennan wrote the majority decision and confirmed that obscenity was not protected by the First Amendment. Justice Hugo Black and William O. Douglass dissented arguing that all obscene material was in fact protected by the First Amendment. Justice John Marshall Harlan II dissented because in his opinion only states had the right to prosecute obscenity and the federal government had no standing. In Memoirs v. Massachusetts in 1966 the Court updated its definition for obscenity as “patently offensive” or “without redeeming social value”. The Earl Warren Court’s decisions to broadly define obscenity helped fuel the sexual revolution in the late 1960s. In Miller v. California in 1973 the court further defined obscenity as lacking “serious literary, artistic, political or scientific value”. Justice Brennan changed his argument claiming “no formulations of this Court, the Congress, or the States, can adequately distinguish obscene material unprotected by the First Amendment from protected expression”. But others can argue that the opposite is true: can someone adequately distinguish obscene material protected by the First Amendment from protected expression. The bottom line, the Supreme Court’s meddling in issues beyond their jurisdiction did nothing to clear up obscenity and its application towards the First Amendment. It was a failure for the Court to overstep its bounds by setting convoluted and ever changing standards. The Court should have relied on the individual states to handle the issues surrounding obscenity since the Federal Government has no jurisdiction, but instead the Court relied on the First Amendment to intrude and meddle on state laws and statutes.

The 1965 case Griswold v. Connecticut was a landmark case where the Court struck down a statute which prohibited married couples from using contraception. The Court invalidated the law because it violated the “right to privacy” and people have the right to be free from “government intrusion” according to Justice William Brennan. Funny how the Court only sees government intrusion violations coming from the states but not from within its own chamber. By the 1950s only two states had statutes prohibiting contraception for married couples (Connecticut and Massachusetts). Obviously, states were invalidating these laws and the statute was rarely enforced (how would anyone know if the use of contraception was happening in privacy). Majority opinions varied on the application to the right of privacy from using the Fourteenth Amendment due process clause (Justice John Marshall Harlan II and Byron White) to the use of the Ninth Amendment (Justice Arthur Goldberg). The Ninth Amendment says “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage other retained by the people”. Liberals falsely claim that the Ninth Amendment guarantees rights not mentioned in the Bill of the Rights. The Ninth Amendment actually assures that nothing written in the Constitution can deny or cancel any of the Amendments. Justice William O. Douglas went further by declaring that the Bill of Rights contained “other Constitutional protections” (based on the imagination of each individual Justice?). Even a liberal Justice, Hugo Black, dissented. He correctly asserts that the right of privacy cannot be found in the Constitution. Justice Potter Stewart also dissented saying the statute was “an uncommonly silly law” but it was Constitutional because it was beyond the enumerated powers of the Federal Government to interfere.

Friday, April 28, 2017

I did not know the U.S. had so many Scientists

I did not realize the United States had so many scientists. They are flooding our streets in protest over climate change legislation or lack of legislation. I am willing to bet most of these “experts” have never seen a climate change model no less understand one. In fact, I am willing to bet over 90% of these scientific experts on our streets cannot do simple arithmetic without a calculator. No true scientist would take time off work to protest, they are busy and do not have time for this kind of nonsense. I will outline a few of the major issues with climate science.

Science is not factual, but theories and hypothesis that have yet to be proven. Once something is true it becomes a reality (or as Liberals call it: “settled science”), but until that point it is all theories. Of course climate change believers would say this is a reality and is “settled science”. Maybe, maybe not, but all of the many catastrophic prognostications that have been predicted over the past half century have never come to fruition. This tells me that climate science is still a theory and not at all factual or “settled science”.

Science hypothesis and theories are hardly accurate and rarely come to fruition. A scientist may go through hundreds if not more iterations of experiments before realizing their hypothesis is wrong before starting over with a new theory. Let me give a few simplistic science failures that we can all understand. Science said that women and blacks were inferior to white men. This is obviously incorrect. Science said that the offspring of intellectually challenged persons will have the same issues (100% of the time). This was wrong. In fact, scientific testimony in landmark cases led to discriminatory Supreme Court rulings in Dred Scott, Plessy, Bradwell, Mueller, and Buck that women, blacks, and the intellectually challenged were inferior persons. These were false scientific realisms that a majority of the country held as factual based on scientific theories that have long been found 100% inaccurate and false.

Present day science depends on who is doing the experiment. Ever wonder why we have seen scientific experiments with vastly different outcomes on the same subject? Coffee is good for you. Then coffee is bad for you. Fatty foods are bad for you. Fatty foods are not entirely bad for you. This happens every day when a new conflicting study surfaces. If the study is sponsored by a coffee company, well the result will be skewed to favor coffee. The initial fatty foods studies were paid for by sugar companies to blame fatty foods for the obesity problem. Now we are learning the truth and the real culprit is sugar. The same goes for climate change studies, there are not any independent ones to be found. This is a problem.

Results in many scientific studies are wrong because they do not use a correct sample size to ensure their results will be accurate up to a certain percentage such as a 95% confidence level.

Models are great, but even the best ones have an accuracy associated with it. They are only so good. Case in point, weather models. They have gotten much better, but very rarely will a weather model correctly predict the temperature, wind speed, and moisture in a specific location a mere 24 hours in advance. Models are made by humans and therefore only take so many variables into account, but in scientific studies such as weather and climate the number of variables are infinite.

Consider if climate change is man-made, what do people propose we do about it? Are we that dumb to think that moving to renewable energies will solve the problem? I have yet to hear a viable solution other than taxing citizens more and having citizens pay more for energy. If money is the solution, there is not enough money in universe to stop climate change (man-made or otherwise). Climate change is a global issue, it is not localized to the U.S. It does not matter what the U.S. does without every single country on board with a viable solution (not this renewable energy nonsense).

What we need is one of these hypocritical scientists protesting on the street to shut up and find a solution. If you are incapable of finding a solution, go home and stop talking about something you cannot do anything about. I have always told people you have the right to complain, but only if you pose viable solutions. Go home and invent a smaller battery that can store more energy. Do something other than showing off your ignorance. Obviously if you think climate science is real, settled, factual, precise, and 100% correct, you know nothing about science. I feel sorry for these people, they do not realize they are an embarrassment to the human race. If these folks are our future, we have more serious issues than climate change.

Tuesday, April 25, 2017

Can Trump Withhold Federal Funding from Sanctuary Cities?

Can President Trump withhold federal funding from sanctuary states and cities? I believe the answer to this question is not clear cut, so I will say the answer is yes and no. Let me try to explain my hedging. There is not a great deal of precedent by the Supreme Court under Spending Power (there is no doubt Congress has a great deal of authority under the Spending Clause), but a good case to investigate is the 1987 decision for South Dakota v. Dole. This was a bipartisan decision by the Court with conservative and liberal justices on both sides of the 7-2 decision. Chief Justice Rehnquist delivered the majority opinion and Justices O’Connor and Brennan delivered dissenting opinions. The case involved Congress withholding highway transportation funds to the state of South Dakota unless they increased their drinking age to 21. At the time, 18 to 20 year olds could drink “near beer” (3.2% alcohol) in South Dakota. The Court held that Congress had the Constitutional authority to apply these types of coercive / encouragement spending regulations on states. Let’s evaluate the details the case.

Rehnquist says “Congress may attach conditions on the receipt of federal funds” and Congress has the power “to further broad policy objectives by conditioning receipt of federal moneys upon compliance by the recipient with federal statutory and administrative directives.” In United States v. Butler (1936) the Court held Congress has the power “to authorize expenditure of public moneys for public purposes is not limited by the direct grants of legislative power found in the Constitution.” In other words, the spending power of Congress can encompass powers not enumerated in the Constitution. Spending power is not unlimited however, there are four restrictions: first the legislation must pursue “the general welfare”; second the legislation must pursue its objectives unambiguously; third “the statute must be reasonably related to the purpose of the expenditure”; and finally “the legislation may not violate any independent Constitutional prohibition”. The federal condition for South Dakota was seen to meet the “general welfare” because it tries to prevent drunk driving fatalities on federal highways. The condition in the legislation was not ambiguous because it was clearly defined. The federal grants are legitimate because they relate to one purpose – “safe interstate travel”. Since the amount of federal funds being withheld was only about 5%, the law was not seen as coercive, but instead as encouragement for states to raise the drinking age: “encouragement to state action found in this statute is a valid use of spending power.” In Massachusetts v. United States (1978): “The federal interest in particular national projects or programs” can have spending requirements attached to the funding.

Justice O’Connor was not convinced that point three is met: the legislation must be related to the federal funding. She does not feel “safe interstate travel” and the drinking age condition are “reasonably” related. As O’Connor says: “Rather than a condition determining how federal highway money shall be expended, it is a regulation determining who shall be able to drink liquor.” United State v. Butler (1936) was the “last time this Court struck down an Act of Congress as beyond the authority granted by the Spending Clause.” The Court held that the FDR Agriculture Adjustment Act was “an exercise of regulatory (Commerce Clause), not spending power.” The Butler Court held the Spending Clause does not give “power to Congress to tear down the barriers, to invade states’ jurisdiction, and to become a parliament of the whole people, subject to no restriction save such as are self-imposed.”

The Trump administration would have to be careful in how it words a law restricting money to a sanctuary city. I do not believe Trump can simply strip all funding going to cities because it depends on what the money is being used for. For instance, if federal money is going to education and that money is being used to support the education of illegal aliens then part of that money be withheld, but they need to word everything carefully and do their due diligence in gathering data on much illegal aliens use federally funded money given to cities. What makes this process complicated is that each sanctuary state and city may use federal funding differently. I noticed a lot of federal funding goes to “head start” educational programs. If illegal aliens use these head start programs then I believe it is okay to limit funding by the amount that illegal aliens use the program. I do not know if a court would grant Trump the right to withhold all monies for programs even if they are partially used by illegal immigrants. It will be interesting to see what happens.

Sunday, April 23, 2017

2017 NFL Mock Draft

1. Cleveland Browns: Myles Garrett, DE, Texas A&M

2. San Francisco 49ers: Solomon Thomas, DE, Stanford

3. Chicago Bears: Marshon Lattimore, CB, Ohio State

4. Jacksonville Jaguars: Leonard Fournette, RB, LSU

5. Tennessee Titans (from Los Angeles Rams): Jamal Adams, S. LSU

6. New York Jets: Mitch Trubisky, QB, North Carolina

7. San Diego Chargers: Malik Hooker, S, Ohio State

8. Carolina Panthers: Christian McCaffery, RB, Stanford

9. Cincinnati Bengals: Derek Barnett, DE, Tennessee

10. Buffalo Bills: O.J. Howard, TE, Alabama

11. New Orleans Saints: Rueben Foster, LB, Alabama

12. Cleveland Browns (from Philadelphia Eagles): Patrick Mahomes, QB, Texas Tech

13. Arizona Cardinals: DeShaun Watson, QB, Clemson

14. Philadelphia Eagles (from Minnesota Vikings): Corey Davis, WR, Western Michigan

15. Indianapolis Colts: Haason Reddick, LB, Temple

16. Baltimore Ravens: Mike Williams, WR, Clemson

17. Washington Redskins: Carl Lawson, DE, Auburn

18. Tennessee Titans: Jonathon Allen, DT, Alabama

19. Tampa Bay Buccaneers: John Ross, WR, Washington

20. Denver Broncos: Ryan Ramczyk, OT, Wisconsin

21. Detroit Lions: TJ Watt, LB, Wisconsin

22. Miami Dolphins: Forest Lamp, G, Western Kentucky

23. New York Giants: David Njoku, TE, Miami

24. Oakland Raiders: Jarrad Davis, LB, Florida

25. Houston Texans: DeShone Kizer, QB, Notre Dame

26. Seattle Seahawks: Garrett Bolles, OT, Utah

27. Kansas City Chiefs: Taco Charlton, DE, Michigan

28. Dallas Cowboys: Charles Harris, DE, Missouri

29. Green Bay Packers: Dalvin Cook, RB, Florida State

30. Pittsburgh Steelers: Jabrill Peppers, S, Michigan

31. Atlanta Falcons: Zach Cunningham, LB, Vanderbilt

32. New Orleans (From New England): Gareon Conley, CB, Ohio State

Friday, April 21, 2017

How to get faster on a bike: Suffer (Part II)

My neurological condition does not enable me to train very long for endurance, about 2.5 hours maximum before pain and cramping become unbearable. Hence, I tend to train in shorter time intervals, but more intensely than others. Most days when I ride, I ride hard and try to put some stress or suffering on the body for at least some portion of the ride. My weekly rides consist of a 38 mile ride up and back from Cottonwood Pass (12,126 feet from 8,000) feet in 2:05:00 to 2:25:00; or I do two or three hill repeats up a 2.4 mile 850 foot climb as hard as I can do them; or I will do a time trial over a variety of terrain (flat 5K sprints, 10.7 mile 700 feet, or 22 mile 1,200 feet); or I do some sort of interval training on a low incline (30 second to 10 minute intervals). I also try to schedule a Time Trial race (or some other race: road race, criterium, or hill climb) each week. I try to do a personal best most days training and all days racing. I generally have 1 to 2 easy rides and at least 1 day off each week. When I race, I make sure that I am so tired I cannot sprint for the finish. People that have enough energy to do an all-out sprint the final 250 meters or so had enough energy that could have been used to sustain higher speeds during the race. They did not suffer enough. I do not plan out a strategy for a race, I go as fast as I can which varies depending on the distance of the race. I have an average speed I try to attain for each race. I usually try to keep a steady pace but will attack going up hills a bit harder and pull back a bit on the downhill. My neurological condition makes it difficult for me to change speeds (my quick or fast muscle twitch in my quads is non-existent) and hence, I excel at getting up to speed and trying to maintain that pace. There have been many workouts and races where I have been in so much pain that I never thought I would finish, but that is part of the fun: to work through that adversity and suffering. To endure pain psychologically and or mentally I remind myself that there are so many people around the globe that are suffering much more than myself and I push on.

In many regards I believe my neurological condition helps me endure more pain while I cycle. It is odd, but sometimes the pain I feel from my disorder masks the pain I should be feeling while I ride. On most rides my hands and feet are in lots of pain. I suffer from paresthesia in my hands and feet 24/7. And of course that condition worsens when I am on the bike. Usually my hands and feet will stay cold, but from time to time they will get hot and I suffer some neuropathy symptoms where my brain is actually telling my body that my feet are burning. It is so real that when I am done riding my feet are covered in blisters. The pain is so intense I cannot even remember struggling to get oxygen in my lungs during these rides, but I was going very fast.

Pain is relative and we can never understand how much pain others are going through. I was abused as child and suffered many broken bones that were never treated; I wrestled in high school; and suffer from a painful neurological disorder whose primary symptom is exercise intolerance. Yet, some of the suffering I go through on a bike is worse than I have ever experienced. For this reason, I know my training is putting me through some extreme suffering. Some say you cannot put yourself through so much pain and not rest. However, my neurological condition never rests, I am going to be in pain one way or the other. I may as well feel “good” pain from exercising than the “bad” pain from my disorder. Sure, my cycling career may be short lived from the intensity of my workouts, but I am probably already on borrowed time with the neurological disorder.

I was never a great athlete. In high school I was an average runner, below average wrestler, and average baseball and football player. I probably overachieved because I did not have any gifted athletic talent. Now, I am a well above average masters cyclists (time trial). How can that happen? I cannot explain it but I have some theories. It is not technology or equipment because everyone else has the best that money can buy. It is not my natural doping living at 8000 feet because everyone in Colorado has natural doping. Masters competition is a war of attrition and chance. First, you must survive that long. Second, you must remain relatively healthy and free from serious injury. Third, you must still have the desire to compete – most top competitors give up and retire from sports altogether when they are young. There is no question I meet all three of these requirements with the exception of the neurological disorder. The disorder has made it practically impossible to do any sports, including hiking (too much pain and cramping making recovery times several days to weeks), except to ride a bike or to walk at a moderate pace. The only explanation for my success is my ability to train my body to deal with pain and suffering for races. A few labs at UC Irvine conducted tests on me to better understand my physical makeup that makes me an anomaly. They discovered nothing to shed any light on the situation: why an average high school athlete can become a better masters’ athlete despite a debilitating neurological disorder? My only explanation is my desire to suffer when I train and race.

Monday, April 17, 2017

How to get faster on a bike: Suffer (Part I)

Most people, nowadays, rely on technology and data to improve their cycling performance. There is an electronic gadget for everything: Speed, RPMs (cadence), heart rate, and power. They even have indoor simulators which make boring rides more exciting. Of all these parameters, most people rely on power training data to improve performance. However, I am getting better and I do not rely on any of these things in my training. The one place I rely on technology is for equipment. Since the key to time trial racing is to be aerodynamic, it is important to have a good time trial bike, aero helmet, and low drag skin suit and shoe covers. Time trial racers look silly in what my wife calls our costumes, but the equipment does matter. Due to cost, I added one item at a time and saw significant time savings. The other place technology is important is to get professionally fitted on your bike every season. In time trials positioning on the bike is the most important aspect. However, some believe that being in the most aerodynamic position will improve race times, but that is not necessarily true. The most aerodynamic position will be very uncomfortable and it can make it harder to breathe and to maximize power and therefore, most riders slowly work their way into more aero positions each season as their body adjusts biomechanically.

I am new to the sport so I have a great opportunity to improve whereas other riders who have been competitive for decades do not have as much room to grow (especially with age). But I have found training using a heart rate monitor, power meter, or cadence monitor does not really work for me, it tends to be analysis paralysis (I am an engineer, and have always found too much data can be detrimental). Knowledgeable people have said a high cadence is needed to go fast (the body saves energy by pushing an easier gear at a higher cadence than a harder gear at a lower cadence). My cadence is 5 RPM’s slower than last year (about 75), and I am going faster. Experts say riders should have a minimum cadence of 90. Experts also say older riders need more rest days to recover. However, I sleep worse on days off and my morning heart rate the day after a day off is much higher than if I exercised hard the day before. I take time off, but not as much as experts suggest. Experts claim a power meter and HR monitor are essential for training. I understand my heart very well and use average speed to understand how hard I am working instead of power meter. When I go to a race I do not have a threshold power to maintain, I have an average speed to maintain. After all, speed and placement are the two most important factors. Yes, I use technology, but only average speed as a training mechanism. Despite what experts say, my methods have worked for me. I find the most important thing to do to get better is to train hard by preparing the body through suffering to endure massive amounts of pain for races. I am in competition with myself each day of training or racing. If I can improve my times, I will get better. Yes, this is an old school training philosophy – it is as simple as that.

Every study on pain indicates that highly competitive runners and cyclists can endure massive amounts of pain when compared to noncompetitive athletes. In fact, studies indicate athletes taking pain medication can improve their performance. Many Tour de France riders take pain medication. I do not recommend this for amateur cyclists riding much shorter distances. I take Ibuprofen most nights, but that is to deal with pain for a neurological disorder. I do not take it during the day because it has bad side effects such as making the user drowsy and tired and it can therefore, have a negative effect on your riding. The bottom line is these studies prove that dealing with pain is the key to performance. People may have a low metabolic age or a very high VO2 max, but that does not mean they will be top performers. If you cannot endure pain and suffering while training, you cannot succeed especially in time trials. In a time trial racers start in 30 second intervals and therefore, riders do not know how fast other riders are going. This means there is no time to relax. A time trial is a maximum effort of speed and or power which riders can endure for the entire distance of the race. Time trials are short (5K to 40K or about 6:30 to 55:00 minutes depending on conditions), but riding for nearly an hour at maximum power and a heart rate at 95+% of its maximum is pure torture. One reason I do not need technology when I race is because I automatically get my heart rate up to 95% of maximum. Several years of data proved this fact, and hence I do not rely on my heart rate monitor anymore.