Matthew Alexander, former senior military interrogator in Iraq, says the abuse and torture of prisoners hurt the U.S. by giving up the moral high ground. He says the policy also helped al-Qaeda recruit and very likely slowed the effort to find bin Laden.

More here, here, and here.

Santa Clara law professor Brad Joondeph, who runs the very helpful — as a primary document aggregator for all the Obamacare cases — ACA Litigation Blog, thinks he’s stumbled onto something :

So after reading my roughly 500th ACA-litigation-related brief, motion, or filing of some sort, I think I have gotten a little punchy. But it occurs to me that a a great new drinking game for those ACA litigation buffs who sit around on Friday nights drinking beers — a huge cohort, I am sure — would be to read aloud briefs filed by the challengers, and take turns drinking when the word “unprecedented” is used.

Indeed, the argument that there is no Supreme Court precedent sanctioning the assertion of power the government claims — that the individual mandate is, quite literally, unprecedented — goes back to the earliest articulated constitutional arguments against Obamacare, particularly by the “intellectual godfather” of the legal challenges. I can tell you that Cato’s latest Obamacare brief, which we’ll be filing in the Eleventh Circuit — the Florida-led 26-state case — next week, uses the word three times. (We also use “novel.”)

The drinking game that Joondeph proposes, however, is not, um, unprecedented. Josh Blackman has been talking about it incessantly at least since our time writing about the Privileges or Immunities Clause. He even blogged about it last August! 

I would suggest that Brad and Josh play the “unprecedented” drinking game to settle the score once and for all, but alas Josh doesn’t drink. Maybe I should step in for him; if I can bet Yale law professor Akhil Amar $100 on the outcome of the litigation, I can certainly do this.

For other connections between booze and the Commerce Clause, see my recent post on the (unfortunately not unprecedented) Care Act.

Yesterday’s giants continue to exit the arena: I missed the news cycle on this, but two weeks ago Bill Rusher died at the ripe old age of 87.

Rusher was a conservative writer and activist, and the publisher of National Review in its first few decades. Although he mostly dropped off the public stage after retiring from NR in 1989, he had latterly been involved with such Cato-friendly groups as the Pacific Research Institute and Pacific Legal Foundation.

From the Wall Street Journal’s obit-itorial:

In the early 1960s, Rusher and others built the foundation for what became Barry Goldwater’s successful run for the Republican Presidential nomination in 1964. While Goldwater lost, his candidacy signaled the conservative ascendancy within the GOP that culminated in Ronald Reagan’s election in 1980.

Rusher wrote a successful syndicated column for 36 years in which he exhibited his fundamental optimism about America and its purposes—even through the dark days of reckless government expansion after 2008. Having once thought Reagan should mount a populist, third-party challenge to the GOP in the 1970s, Rusher and the tea party were kindred spirits. He had a deep faith in the ability of the American people to regain their bearings after a political mistake.

He was also a man of great personal dignity and superb taste who we recall once offering us the very good advice that, “The best restaurant is the restaurant that knows you best.”

It is this last bit that has perhaps stuck most with me about the man, whom I met a few times in college because Rusher enjoyed mentoring young right-of-center writers. I remember well talking with him late into the night about how to balance intellectualism and activism, or more simply how to put ideas into action. Well into his 70s by then, Rusher had this cool, stylish charm, a lively mind behind a steely manner (and an impeccable wardrobe).

Not quite a household name any more even in conservative circles, Bill Rusher will certainly be missed in my household.

As advocates gear up for the first appellate argument in the ongoing Obamacare lawsuits — Tuesday in Richmond — today marks an important milestone: the filing of two eloquent briefs responding to the government’s appeal of Judge Roger Vinson’s January ruling that found the individual mandate unconstitutional and non-severable, thereby striking the entire legislation. 

These two briefs, one by 26 states (and for the first time signed by former solicitor general Paul Clement) and one by the private co-plaintiffs in that same Florida case (the National Federation of Independent Business and two individuals) present a full-throated defense of the basic principle upon which this country was founded: that the federal government is one of enumerated and limited powers whose primary goal is to preserve liberty. They describe exhaustively why that government cannot require people to buy goods or services as a means of regulating interstate commerce and why therefore the unprecedented individual mandate goes beyond what the Constitution authorizes. Indeed, forcing people to buy health insurance is neither a regulation of interstate commerce nor a constitutionally appropriate means of achieving such regulation. 

If the Eleventh Circuit, which will hear argument June 8 in Atlanta, takes these arguments seriously — and adheres to the truism that the Constitution provides fixed limits on federal power — then the “linchpin” of Obamacare is doomed. Any ruling to the contrary, allowing the individual mandate to stand, would unleash an entirely novel and unbounded conception of federal power.

Cato will be filing our own brief a week from today. Georgetown law professor and Cato senior fellow Randy Barnett will not be on it, however, because he has joined the NFIB’s legal team — an exciting development, to be sure!

As Chris Preble noted early Monday morning, Osama bin Laden is dead. In addition to celebrating V‑OBL Day, we should take a moment to reflect on wars of the last decade and the civil liberties we have sacrificed since September 11, 2001. Malou Innocent makes the case for reconsidering our foreign policy, and Jim Harper asks if he can have his airport back. We lay out these thoughts in more detail in this Cato video, After bin Laden.

The phrase “after bin Laden” has a nice ring to it. Cato held counterterrorism conferences in 2009 and 2010, and there’s more Cato work on counterterrorism and homeland security here.

The Good: Congressional investigators are in Arizona to gather information on the ATF’s ill-conceived “Gunwalker” operation that supplied Mexican drug cartels with weapons. As I wrote at National Review, street agents objected from the beginning, but were told in no uncertain terms to pipe down:

Agents raised warnings to their superiors about the quantity of sales and the rising violence across the border, but were told that the operation had been approved at ATF headquarters. They were also told that if they didn’t like it, they were welcome to seek employment at the Maricopa County jail as detention officers making $30,000 a year.

I’d like to think that investigators will find that managerial incompetence was the culprit and not intentional facilitation of cross-border violence in order to hype gun control for the sake of Mexico. We’ll see.

The Bad: Philadelphia TSA screener Thomas Gordon has been arrested on child pornography charges.

The Ugly: Unions worked (for unrelated reasons) to keep said TSA screener in his job a few months before his arrest.

Thanks to AFGE’s legal assistance, a TSO at Philadelphia International Airport will remain employed at TSA after being proposed for removal. TSO Thomas Gordon had difficulty maintaining his work schedule because he had to take care of a family member…

“It means a great deal to me to know that my union — AFGE — has my back in situations like this,” Gordon said.

Now that the TSA screener workforce has voted to unionize, the only question is which union will represent them. Expect a stout union defense against any allegations of TSA excesses in patting down children or attractive women. If a union doesn’t defend the bad apples, it isn’t doing its job. Just ask the families of Sal Culosi and Erik Scott.

Dale Carpenter of the University of Minnesota Law School, who wrote a Cato Policy Analysis on the Federal Marriage Amendment, has an op-ed today in the New York Times about changing attitudes among lawyers and judges about sexual orientation:

The prestigious law firm King & Spalding has not fully explained its decision this week to stop assisting Congress in defending the law that forbids federal recognition of same-sex marriage. But its reversal suggests the extent to which gay men and lesbians have persuaded much of the legal profession to accept the basic proposition that sexual orientation is irrelevant to a person’s worth and that the law should reflect this judgment.

And speaking of sexual orientation and the legal profession, don’t miss our upcoming Policy Forum with superlawyers and co-counsels Ted Olson and David Boies, “The Case for Marriage Equality: Perry v. Schwarzenegger,” on May 18.