Courtesy of Mark Larks, this pearl of wisdom from Charles Schultz: "Don't worry about the world coming to an end - it's already tomorrow in Australia."

VISITING ROTARIANS

Larry Sly - Concord

Alicia Cragholm - Lafayette

Anna Stevenson - Lafayette

GUESTS OF OTHER PERSUASIONS

Holly Landers-Burke - Buddy's one and only

Terry Franklin - ditto for Charlie

Chris Fazel - John's cousin

Vince Maloney

Valerie Shearer - Rich's reason for living

MJ Marggraff - Jim's beloved

Blake Marggraff - Jim's and MJ's progeny

Glenda Fillinger - Paul's Queen, and ours

Tamara Johnson - Gillett's better half

Joseph Captain

Tina Bettencourt - Joe's blushing bride

Allysa Bettencourt - Joe's and Tina's pride and joy

Julie Seelen

Barbara Carlson

Tom Jenks

Agatha-Sue Lee - Cal's sweetheart

BIRTHDAYS, ANNIVERSARIES, AND OTHER MISCELLANEOUS GOODIES

Well done Skip

Skip McCowan celebrated 34 years of wedded bliss to the lovely Linda, of whom Skip said: "She looks sooooo young."  In addition to the $34 normal assessment, Skip generously contributed $100 to The Rotary Foundation and another $100 to the Lamorinda Sunrise Endowment Fund. Thanks, Skip.

Cal Lee would have been recognized for Agatha-Sue's birthday, but, as Cal pointed out, he "did it last week."

YOU SAY TOE-MAY-TOE, I SAY TOE-MAH-TOE

Please, don't tell us more than we need to know Mark

Fines. Recognitions.  Happy Bucks.  Different Clubs and different Club Presidents have used different terms, but the result is always the same; separating Members from their cash.  Today, President Mark Roberts bravely rushed in where angels, or at least Past Presidents, have feared to tread; explaining to the huddled masses the purpose and logic of these transactions.  Mark's explanation, subsequently reaffirmed by an e-mail to all of us, was brilliant, diplomatic and well thought out.  But this reporter was able to cut through the barnyard stuff and establish the real purpose: money-generation and embarrassment of the Members.

Actually, as President Mark explained, these recognitions (or fines, if you like) represent a portion of our annual dues (about $100 per year per member), just collected in a way that makes sure that all Members are an active, vocal part of the meeting a few times a year. Some Past Presidents have used the random assignment method of determining amounts of the emoluments, but President Mark has decided to use a fixed scale.  In any event, keep in mind that you are not being punished for having a birthday, a wedding anniversary or anniversary of joining the Club and have fun with it.  You might as well, because it's going to happen regardless.

IT'S NOT QUITE A WHITE-SMOKE MOMENT, BUT IT'S CLOSE ENOUGH

One of the functions of the Club's Endowment Fund Board is to waive their collective hands beneficently over the incoming Club President's and Board's budget for the coming year.  President Mark announced that, after countless nanoseconds of consideration, the Endowment Board has approved his budget and there was great rejoicing.

WAY TO GO, STROKES

Dan loves those "Strokes"

Dan Herbert reported that the Oakland Strokes, our favorite rowing club (Katie Rose Ware is currently one of the Strokes), fielded not one but two National Championship boats - Women's Open and Women's Lightweight.  Not only that, but three former Strokes will be rowing for the US Olympic team, and that a fourth came thiiiiiiiiiis close to making the team.  Way to go, Strokes, and thanks for the update, Dan.

COMING ATTRACTIONS

Our former Youth Exchange Student Malte Fischer will be at our next meeting.  At that same meeting, Claire Roberts will present the next installment of our famous "Expose Yourself" series.  And then, that evening, Mark and Claire Roberts will host this month's TGITLFOTM. It should be a great day.

PROGRAM

Welcome, Professor Yoo

Today's speaker was John Yoo, Professor of Law, University of California, Boalt Hall School of Law.  Prof. Yoo received his bachelor's degree from Harvard and his law degree from Yale.  Among his numerous other achievements he served as Deputy Assistant Attorney General in the U.S. Justice Department's Office of Legal Counsel from 2001-2003, General Counsel of the U.S. Senate Judiciary Committee from 1995-96.  He also clerked for U.S. Supreme Court Justice Clarence Thomas. 

Prof. Yoo spoke to us today about the U.S. Supreme Court's recent decision upholding some of the Health Care Act. (Because it is a handy shorthand, and because the term is used by so many, both proponents and opponents, this reporter will use the term "ObamaCare."  It is meant neither to praise nor condemn the legislation.)   He started by explaining what the Court did regarding the "individual mandate," that is, the provision that says that everyone over 26 will either buy insurance or, if you don't, pay money to the federal government.  The main focus of the debate, both before the Court and in the news media, was whether this part of the statute passed muster under the commerce clause of the U.S. Constitution.  The commerce clause grants Congress the authority to regulate "interstate commerce," and has been used over the past 70 or so years to justify a wide range of Congressional enactments. 

The Court, with Chief Justice Roberts writing the opinion, ruled that the individual mandate was not constitutional under the commerce clause.  Dr. Yoo explained that the reasoning boils down to distinguishing between regulating an existing purchase, which the commerce clause permits, and the government forcing a purchase, which the Court says is not permissible under the commerce clause.  Put another way, Prof. Yoo reads the decision as the Court saying that the commerce clause does not give Congress the power to force people to buy something.

So that means ObamaCare lost, right?  Wrong.  The Court, per Chief Justice Roberts' majority opinion, says that the payment for not purchasing your own health insurance is a tax, regardless of what the proponents or even the language of the statute itself calls it.  Under the taxing power the Constitution gives to Congress, said the Court, Congress can enact such a tax.  So, explained, Prof. Yoo, the Court said the Congress can't force you to buy something, but it can tax you if you choose not to. 

A great presenter here

Prof. Yoo also explained a final portion of the Court's decision.  There is a long-standing federal program, Medicaid, in which the federal government gives money to the states, which, in turn, add some of their own money to provide health care on a "needs" basis.  (This is unlike Medicare, which is based on age or existing disability regardless of need.)  Under ObamaCare, the federal government was to provide increased Medicaid funding to the states to help fund the increased number of people receiving public health care, but would withdraw all existing federal Medicaid funding if a state did not set up the ObamaCare program in the state.  Prof. Yoo pointed out that this is not small change; federal Medicaid dollars account for, on average, 10% of a state's budget.

The Supreme Court struck down that part of the law. The Court ruled that this was too coercive a use of Congress's spending powers under the Constitution.  It was also a historic moment, as it represents the first time since the New Deal that the Supreme Court has ruled that Congress went too far in using its spending authority.

Prof. Yoo turned next to some of his opinions about what the Court did.  What bothered him most about the decision is the apparent politicking that went on within the Court.  First, he is surprised by the leaks that have come out of the Court concerning its inner workings. Prof. Yoo has worked in all three branches of the federal government, and his experience is the Executive and Legislative Branches "leak like a sieve," but the Supreme Court is usually devoid of such leaks. 

Second, he is bothered by what the leaks appear to show, that is, that Chief Justice Roberts may have initially been in favor of striking down the individual mandate but changed his mind to avoid popular backlash and to not make the Court an issue in the upcoming presidential election.  Prof. Yoo believes (along with many other Court observers of all persuasions) that the Court should not tailor its decisions to fit perceptions of the popular mood.  Or, as Prof. Yoo put it, "judges should not be politicians."  He believes such actions actually weaken the legitimacy of the Court.

Prof. Yoo generously kept his remarks short in order to allow for as many questions as possible.  And questions he got.

He was first asked about the evolution of Supreme Court appointees; for example, Justices Souter and Stevens were Republicans appointed by Republican Presidents with the expectation that they would be "conservative" voices of the Court, but came to be seen as stalwarts of the "liberal" wing of the Court.  Prof. Yoo's take is that, since the 1960s or so, it is the Republican appointees who "evolve" and the Democratic appointees do not..  He pointed to Justice Byron White, who was appointed by President Kennedy, as the last example of a Democratic President appointing a Justice who came to be seen as increasingly conservative on the bench. 

Prof. Yoo was next asked if he thought there were any constitutional issues arising from the way ObamaCare was passed by Congress, referring to some of the uses (and some would say abuses) of parliamentary procedure to get the legislation through both houses of Congress.  Prof. Yoo noted that the Senate leaders managed to avoid the requirement of 60 votes for "cloture," meaning the end of discussion.  (Ed. Note: Any one or collection of Senators can try to talk a bill to death; unlike the House of Representatives, the Senate starts with the presumption that every Senator can have unlimited time to discuss a bill.  This is the "filibuster.") However, the cloture requirements do not apply to certain tax and financial legislation. Then, only a simple majority is required to end debate and force a vote.  The Democratic leadership declared ObamaCare to be such legislation and prevented a filibuster from working. 

Prof. Yoo observed that he had seen far greater skullduggery in his time on Capitol Hill.  He also noted that, if and when Republicans take control of the Senate and move to repeal ObamaCare, they should be able to use this same tactic.

Next up was a question about the impact of ObamaCare on a day-in, day-out level.  It was pointed out that many doctors, as many as 45% according to polls, will drop out of providing care to Medicaid patients.  Also, asked the questioner, why would an employer provide health care coverage to his or her employees if the government is providing it?  While noting that the ins and outs of health care finance were not his field of expertise, Prof. Yoo noted that he believes a better solution would be for the government to provide funds directly to the end users, i.e, the individual, to use for medical insurance or care.

The next questioner asked whether it is advisable to put an upper age limit on Supreme Court justices (and, presumably, other federal judges).  Prof. Yoo seemed sympathetic to the idea, noting that the average age and length of service for Supreme Court justices has been steadily increasing.  However, he pointed out, enacting a mandatory retirement age would require an amendment to the Constitution, as the Constitution provides that federal judges serve for life.  (Ed. Note: They can also be impeached, using more or less the same procedures as those for impeaching and trying a President, and it has been done, but it is not easy to do and is rarely tried.)  Constitutional amendments are exceedingly difficult to enact, requiring super-majorities in both Houses of Congress and ratification by 75% of the States' legislatures. 

A fine turnout for our speaker this morning

The final question concerned the memo Prof. Yoo wrote while at the Justice Department concerning the legality of what some call "enhanced interrogation techniques" and some call "torture."  In particular, he was asked to explain his role in the debate within the second Bush Administration regarding what could and could not be done vis-a-vis questioning captured al Qaeda members and other combatants.  Prof. Yoo explained that he was a Department of Justice lawyer when the 9/11 attacks happened. He said we knew "very little" about al Qaeda, and there was a fear that they would attack again, as their previous pattern had been to return to the area of a successful attack for follow-up attacks.  This was also an enemy that had no country and none of the infrastructure normally associated with combatants. In addition, al Qaeda had shown that they were willing to actively target civilians.

Then we started capturing their leaders and the question arose: what can the US do, and not do, in interrogating them?  The Office of Legal Counsel was asked by the policy decision-makers: how far can we go?  That was what Prof. Yoo tried to answer.  He stressed the difference between defining the parameters of what is legal, which was his assignment, and what actions would be taken in light of that information, which was a policy determination made by others. 

Many thanks, Prof. Yoo, for taking the time to give us the benefit of your insights into these ongoing and important issues.