In the oral arguments to the partial-birth abortion cases, the Justices and lawyers barely discussed whether the federal government has the constitutional authority under the Commerce Clause to enact such a law. When the issue finally came up, in the second argument, it was in a cynical question by Justice Ginsburg. Ms. Federalism made this amazingly disingenuous observation addressed to Solicitor General Paul Clement:

Because your time is running out I did want to ask you about a feature of this legislation that hasn’t come up so far, and that is perhaps stimulated by Stenberg. But up until now, all regulation on access to abortion has been state regulation and this measure is saying to the states, like it or not, the Federal Government is going to ban a particular practice and we are going to take away the choice from the states, in an area where up until now it’s, it’s been open to the states to make those decisions.

It has??

General Clement managed to restrain himself from saying: “Gee, Justice Ginsburg . . . may I quote you on that?”

Ed Whelan sums up my incredulous reaction:

Does Ginsburg not realize that she joined the five-justice majority in Stenberg v. Carhart that deprived states of this very choice?

Whelan says that Ginsburg “displayed remarkable chutzpah (or obtuseness)” in making this comment. I say Whelan is being kind.

But let’s place Ginsburg’s cynical posturing aside and explore the answer to her question. It’s an academic question, because the issue was not briefed by the parties or seriously discussed at oral argument. Still, it’s worth exploring if you’re interested in what authority the federal government has (or should have).

(more…)

Lap dancing has been ruled illegal in Las Vegas.

At least, the kind where women do things to try to sexually arouse men.

The Las Vegas Review-Journal reports:

[Quote deleted. I will not quote thugs. — P]

The prohibited acts for which strippers have received citations include “rubbing breasts against patrons’ faces and grinding buttocks into patrons’ groins, according to the ruling.”

The city attorney assures the paper that, as long as strippers don’t engage in these or similar activities, lap dancing is still permitted.

Vegas strip-club owners don’t sound reassured.

Harry Reid’s phone is reportedly ringing off the hook.

(I made that part up, but you know it’s true.)

Michigan has just passed a law preventing public institutions from using racial preferences. University of Michigan President Mary Sue Coleman has all but promised to ignore the law. She brands the law “an experiment that we cannot, and will not, allow to take seed here at Michigan” and adds: “I will not stand by while the very heart and soul of this great university is threatened. We are Michigan and we are diversity.” She pledges to bring frivolous litigation arguing that the Constitution requires her school to discriminate on the basis of race.

Yes, she mouths the words “Of course the University of Michigan will comply with the laws of the state.” But she follows it immediately with: “At the same time, I guarantee my complete and unyielding commitment to increasing diversity at our institution.” Translation: “Of course we’ll comply with the law preventing us from using racial preferences. But at the same time, I guarantee my complete and unyielding commitment to using racial preferences.”

It reminds me of when Lionel Hutz said:

Mr. Simpson, the state bar forbids me from promising you a big cash settlement. But just between you and me, I promise you . . . a big . . . cash . . . settlement.

After all, what is truth? If you follow me.

Xrlq fisks her, delivering the Internet equivalent of a two-by-four across the head.