DeMint: Obama nominee got Constitutional issue wrong in testimony

posted at 3:40 pm on January 27, 2009 by Ed Morrissey

Senator Jim DeMint tangled with Barack Obama’s choice for Deputy Secretary of State yesterday over the revocation of the Mexico City policy, and left the new administration with a bruise on its constitutional competency.  When DeMint challenged James Steinberg on Obama’s decision to fund international organizations that provide or advise for abortions, Steinberg said that it was a matter of freedom of speech:

Question from Senator DeMint: For more than 30 years the Hyde amendments, which prohibit federal funding for abortion services, have been supported by Republican and Democrat administrations and Congresses. Unfortunately, while this is the domestic policy of the United States, President Obama has vowed to reverse our foreign policy by repealing the Mexico City policy and use the federal taxpayer dollars to fund abortion services overseas. Do you support President Obama’s efforts to lift the Mexico City restrictions? Do you believe our foreign policy should contradict long held domestic policies?

Answer from James Steinberg: President Obama has supported repeal of the Mexico City policy, as has Secretary Clinton. Longstanding law, authored by Senator Jesse Helms, expressly prohibits the use of U.S. funds of abortion. The Mexico City policy is an unnecessary restriction that, if applied to organizations based in this country, would be an unconstitutional limitation on free speech.

Steinberg engages in some lazy thinking in this response.  The Constitution also guarantees the right to gun ownership.  Does that mean that a failure to subsidize gun purchases amounts to an infringement on our constitutional rights?  Of course not — and that’s an actual, enumerated right, not an emanation from a penumbra.

Besides, as DeMint points out, the Supreme Court has already settled this specific issue on free-speech grounds:

Steinberg’s opinion is in direct contradiction to the U.S. Supreme Court, which has already definitively decided the matter in Rust v. Sullivan in 1991. The court’s majority opinion concluded: “The Government has no constitutional duty to subsidize an activity merely because it is constitutionally protected, and may validly choose to allocate public funds for medical services relating to childbirth but not to abortion.”

In other words, not all that is allowed becomes compulsory for the government to provide.  I have a right to free speech, but not the right to have the government confiscate air time on CBS for my use.  That’s an important point when discussing abortion and policies of government subsidies to its practitioners.  The government can choose to fund it, but they’re not required to do so.  Steinberg’s explanation attempts to evade responsibility by the Obama administration for their choice to fund abortions abroad, and we can expect the same kind of evasion when they try to void the Hyde Amendment, either through the Freedom of Choice Act or some intermediary step, in order to fund abortions within the US.

Either Steinberg has some competence issues or honesty issues.  There isn’t a third option.


Related Posts:

Breaking on Hot Air

Blowback

Note from Hot Air management: This section is for comments from Hot Air's community of registered readers. Please don't assume that Hot Air management agrees with or otherwise endorses any particular comment just because we let it stand. A reminder: Anyone who fails to comply with our terms of use may lose their posting privilege.

Trackbacks/Pings

Trackback URL

Comments

and president obama was gonna ban pork because that is clearly a power of the executive branch.

rob verdi on January 27, 2009 at 3:45 PM

Did DeMint ask Steinberg to explain the Bush Doctrine? Would’ve been funny.

Cicero43 on January 27, 2009 at 3:45 PM

“Either Steinberg has some competence issues or honesty issues. There isn’t a third option.”

Ehm, that would be Deputy Secretary of State Steinberg.

As you were.

artist on January 27, 2009 at 3:46 PM

Abortion is truly racist in effect. A larger percentage of black children are aborted than any other. It will be interesting to see if race becomes an issue here. Calling Niger Innis.

Buford Gooch on January 27, 2009 at 3:46 PM

“Mr. Steinberg, what Supreme Court decisions do you disagree with? And provide the full caption, year, and citation in both the Official Reporter and the Lawyer’s Edition.”

Oh wait, those questions only apply to conservative female governors who are vice-presidential nominees.

Cicero43 on January 27, 2009 at 3:50 PM

Either Steinberg has some competence issues or honesty issues. There isn’t a third option.

It’s Called “Liberal Expediency”

Dr Evil on January 27, 2009 at 3:50 PM

So, killing babies is free speech?

CP on January 27, 2009 at 3:51 PM

We need elected officials who are willing to mix it up with these clowns. A force of dedicated I don’t care if I only serve one term representatives and senators who are will stand up and say the right things and vote the right way.

And then I woke up….

pugwriter on January 27, 2009 at 3:52 PM

Abortion is truly racist in effect. A larger percentage of black children are aborted than any other. It will be interesting to see if race becomes an issue here. Calling Niger Innis.

Buford Gooch on January 27, 2009 at 3:46 PM

But isn’t that really the whole point? Democrats secretly see abortion as their way of limiting the number of ‘undesirables’.

stonemeister on January 27, 2009 at 3:53 PM

“Either Steinberg has some competence issues or honesty issues. There isn’t a third option.”

But, maybe he is a tax cheat. If so, everything is OK.

Johan Klaus on January 27, 2009 at 3:55 PM

Expediency
The quality of being expedient or advantageous; fitness or suitableness to effect a purpose intended; adaptedness to self-interest; desirableness; advantage; advisability; — sometimes contra distinguished from moral rectitude.

Dr Evil on January 27, 2009 at 3:57 PM

Abortion is truly racist in effect. A larger percentage of black children are aborted than any other.

Buford Gooch on January 27, 2009 at 3:46 PM

That statistic may be misleading. Is the rate of pregnancy the same? What about availability and proper use of contraception? I don’t have the answer to these questions but it does provide a context that should be considered.

backwoods conservative on January 27, 2009 at 3:58 PM

DeMint is about the only Senator who doesn’t make me want to throw up.

Chuck Schick on January 27, 2009 at 3:58 PM

“Either Steinberg has some competence issues or honesty issues.”

He’s a Democrat right? Both, it runs in their veins.

kirkill on January 27, 2009 at 4:00 PM

Either Steinberg has some competence issues or honesty issues.

As so often happens in politics, the choice here comes down to “are you a liar or an idiot?”

Jaibones on January 27, 2009 at 4:03 PM

In other words, not all that is allowed becomes compulsory for the government to provide.

Someone might want to remind Mr. Obama and the Democrats of this………..

………………. before it’s too late.

Seven Percent Solution on January 27, 2009 at 4:03 PM

Has there ever been any significant effort to get DeMint to run for presidency?

amerpundit on January 27, 2009 at 4:04 PM

Killin the chillin… a democrat tradition.

jukin on January 27, 2009 at 4:08 PM

WOW, they sure are dumb appointees. Crooks, tax cheats, liars and incompetent, something for everyone.

Like your enumerated rights slam, hit it often. James Madison was quite proud of writing it. He said … Some more Madison pertinent quotes: “A well regulated militia, composed of the body of the people, trained in arms, is the best most natural defense of a free country.”

“Americans have the right and advantage of being armed – unlike the citizens of other countries whose governments are afraid to trust the people with arms.”

And this also states the corollary, why Communists disarm the people.

“A well-instructed people alone can be permanently a free people.”

What we have now is a one sided partisan press that is free. But what is needed is alternative voices. A press that is interested in truth, not DNC talking points.

“A well-instructed people alone can be permanently a free people.”

Well instructed, would that be our DNC press release media?

tarpon on January 27, 2009 at 4:12 PM

Um…. The Constitution grants rights to PEOPLE… to individuals, and limits the Government…

The Government rules at the behest of the people… and has no rights unto itself… it has LIMITATIONS…

And, an individual Right does not really cross to become a right for a group… ie… I can own a gun… but they could place restrictions on a COMPANY owning guns…

This is actualy one of the primary differences between Libertarians, and current culture… currently for some reason the idea that an individuals Rights, automaticly grant that same right to a group, has taken hold…

Thus we get the idea that in Race politics, a GROUP of Blacks have to have the exact same results as Whites, even when no single Act of prejudice can be prooven… that if the GROUP somehow is not the same as other groups, it is enough of a reason to legaly discriminate against Whites…

Its all about the Group, instead of the Individual… and that is just what this guy seems to be doing as well.

Romeo13 on January 27, 2009 at 4:14 PM

Ed:
I’m not sure that Steinberg isn’t right here. Or, at least, that Rust v. Sullivan is the applicable case.

It’s one thing to argue that the government isn’t obligated to fund a “right” but quite another to say that the recipients of government funding must give up their First Amendment Rights (Establishment Clause excepted) or other essential rights.

Example: If the government funds or provides funds for a US hospital, the government can’t say, I don’t think, that no one for the hospital may provide abortion information (or other medical information) to patients. That would be violating their free speech rights.

A closer case may be Rumsfeld v. FAIR that upheld the Solomon Amendment. That law required that universities that received government aid must permit ROTC or military recruiters on their campuses. Yale university, the plaintiff in the case, argued that the law (among other items) violated their Free Speech and Free Association rights by requiring them to associate with the recruiters.

It’s not as clear cut, I think, as DeMint makes it.

SteveMG on January 27, 2009 at 4:14 PM

Good to know that our “brilliant,” “first-rate intellect,” “Constitutional law scholar” president is appointing such knowledgeable and well-prepared individuals to these important positions.

Imagine if we’d elected some dumb Republican, and he was choosing a gaffe-prone idiot to be VP, or an ethically-challenged liar to be Secretary of State, or a known tax cheat to be Treasury Secretary . . . .

Oh, wait . . . .

AZCoyote on January 27, 2009 at 4:15 PM

OK,

I gotta say it. Who says a politician can’t be both incompetent and a liar?

To the point CP made earlier. The maroon equated abortion and free speech. Anyone with half a brain (omits most politicians) would easily figure out the two are not the same. Don’t know what to say about something? Lie and call it a constitutional right. After all “The One” swore to uphold the constitution, so this guy would only be helping the one do what he said he would right?

Duncan Khuver on January 27, 2009 at 4:17 PM

But isn’t that really the whole point? Democrats secretly see abortion as their way of limiting the number of ‘undesirables’.

stonemeister on January 27, 2009 at 3:53 PM

As demonstrated by Pelosi’s now abandoned attempt to include eight hundred millions of dollars for the abortion powerhouse Planned Parenthood as a way to reduce health care costs: just reduce the number of undesirables, the same class they claim to serve and protect.

neuquenguy on January 27, 2009 at 4:17 PM

Depends on what your definition of “Constitutional” is.

mankai on January 27, 2009 at 4:17 PM

worst president ever!

joeindc44 on January 27, 2009 at 4:17 PM

Funny, the question from the beginning of Obama’s candidacy has been: “He is either lying or incompetent, which is it?”

Awilson on January 27, 2009 at 4:18 PM

DeMint is about the only Senator who doesn’t make me want to throw up.

Chuck Schick on January 27, 2009 at 3:58 PM

Agree! Although I think Inhofe also makes the short list. Have you watched his floor speech against confirming Geithner? It’s on Youtube and Michelle’s got it, too. Well worth 7 minutes of your time.

califcon on January 27, 2009 at 4:19 PM

SteveMG,
What the heck are you talking about. Why should the US government provide funding for foreign abortion advocats? It’s my money!

Vince on January 27, 2009 at 4:20 PM

What the heck are you talking about. Why should the US government provide funding for foreign abortion advocats? It’s my money!

I agree!! The government has no business funding this nonsense.

The question on the table is whether the government can require that Americans who receive government money be required to give up some of their other rights.

If the government funds a hospital or organization here, can they tell that organization/hospital what type of medical advice they can give to their patients? Otherwise, they don’t receive the money?

I’m not sure. I don’t think Rust v. Sullivan is the relevant case. More likely, it’s Rumsfeld v. FAIR that applies.

We’re not talking about abortion funding of overseas organizations. The question is whether the US government has the power to limit the free speech (or other rights) of those who receive its largesse.

SteveMG on January 27, 2009 at 4:24 PM

SteveMG,
No. Obama revocated the Mexico City policy which prevents funding, with US taxpayer dollars, abortion services overseas!

Vince on January 27, 2009 at 4:30 PM

No. Obama revocated the Mexico City policy which prevents funding, with US taxpayer dollars, abortion services overseas!

That’s not the topic. Did you read the debate between Steinberg and Demint?

We’re not talking about whether the US government (us) is required to fund abortions or abortion counseling.

The question is whether the previous policy if applied to Americans was Constitutional.

Steinberg said: The Mexico City policy is an unnecessary restriction that, if applied to organizations based in this country, would be an unconstitutional limitation on free speech.

The debate is whether the US government has the power under the Constitution to require that organizations in the US that receive funds not discuss abortion or provide abortion counseling.

Example: If the US government gave $100 million to the Red Cross, could the government require that the Red Cross not discuss abortion with their patients? Not perform abortions, but discuss it?

I’m not sure they can.

SteveMG on January 27, 2009 at 4:36 PM

My guess is that Steinberg just hasn’t given any thought to the issue, and just needed some words. I appreciate this type of post is how we whip up the pro-lifers into thinking something is corrupt with the Obama regime on this issue, but it’s really pretty thin gruel unless one desires to be riled up. Of course, many people just need something to get their blood boiling and given the temperatures outside who can blame them?

I’ll just fuel the fire a little myself. The pro-lifers won’t be able to filibuster the overturning of the Hyde Amendment, because it will likely be done as part of the budget. I’d rather there wasn’t this loophole in the filibuster, but since it’s there this is sure one place that the Democrats should use it.

thuja on January 27, 2009 at 4:39 PM

People who oppose illegal immigration should also oppose the Mexico City policy. High population growth rates in other countries push people into America.

thuja on January 27, 2009 at 4:41 PM

SteveMG,
Foreign organizations in the US. I don’t care where they are based they should not get our money.

Vince on January 27, 2009 at 4:49 PM

Foreign organizations in the US. I don’t care where they are based they should not get our money

Did you read my example about the Red Cross?

Can the government – under the Constitution – say to the Red Cross, “If you provide abortion information or counseling to people, you will not get our funds”?

Or is that requirement an infringement on the free speech/First Amendment rights of the people working for the Red Cross?

SteveMG on January 27, 2009 at 4:52 PM

“emanation from a penumbra”? Wow – things are gettin’ fancy ’round here.

FuriousAmerican on January 27, 2009 at 4:52 PM

SteveMG,
Explain the Hyde amendment.

Vince on January 27, 2009 at 4:52 PM

Explain the Hyde amendment.

That forbids US federal taxpayer money from being used for abortions.

SteveMG on January 27, 2009 at 4:54 PM

SteveMG,
Read the 2 paragraph block quote at the beginning. I think we are dancing in the dark here.

Vince on January 27, 2009 at 4:54 PM

Steinberg’s opinion is in direct contradiction to the U.S. Supreme Court, which has already definitively decided the matter in Rust v. Sullivan in 1991. The court’s majority opinion concluded: “The Government has no constitutional duty to subsidize an activity merely because it is constitutionally protected, and may validly choose to allocate public funds for medical services relating to childbirth but not to abortion.”

Subsidizing an activity or right is different that telling US citizens that their First Amendments rights are taken away if they want US funds.

Did you read my first post? This isn’t about performing abortions. It’s about discussing the procedure.

Can the US government tell the Red Cross that in order to receive funding they must tell their workers/personnel not to discuss – not perform – discuss abortion? Or any other medical procedure?

Let’s change the topic from abortion to kidney transplants. Abortion, after all, is a legal medical procedure.

Can the government tell US medical organizations – in effect, Americans – that if they want funding they can’t discuss kidney transplants with their patients.

SteveMG on January 27, 2009 at 4:59 PM

Its all about the Group, instead of the Individual… and that is just what this guy seems to be doing as well.

Romeo13 on January 27, 2009 at 4:14 PM

And that sounds strangely like communist doctrine.

Johan Klaus on January 27, 2009 at 5:00 PM

SteveMG, They can discuss and perform medical procedures, just not abortions according to SCOTUS.

Vince on January 27, 2009 at 5:04 PM

SteveMG,
Hypotheticals get you nowhere. Talk about the specific topic at hand not what if, perhaps, maybes.

Vince on January 27, 2009 at 5:05 PM

They can discuss and perform medical procedures, just not abortions according to SCOTUS

.

When did the Court rule on this? When did the Court rule that abortion wasn’t a medical procedure?

The specific topic at hand is whether the US government can tell US recipients of funding what type of speech they may engage in.

Again, this is not about performing abortions. It’s about telling patients about the procedure.

SteveMG on January 27, 2009 at 5:09 PM

SteveMG,
For crying out loud. Google “mexico city policy” and you will see that it bans fundin by the US or even private groups that provide abortions or abortion counseling overseas.

If a foreign entity gets our money, it can’t perform abortions or provide counseling for abortions

Vince on January 27, 2009 at 5:14 PM

For crying out loud. Google “mexico city policy” and you will see that it bans fundin by the US or even private groups that provide abortions or abortion counseling overseas.

Geezus, did you read Ed’s post? Please, go back and read the post.

This is NOT about the Mexico City policy or funding of overseas groups.

This is whether the US government can tell US groups that they can’t provide abortion counseling (or other medical advice or information) if they want funding.

Here is the question:

The Mexico City policy is an unnecessary restriction that, if applied to organizations based in this country, would be an unconstitutional limitation on free speech.

If applied to organizations in the US.

Not foreign organizations.

I give up. You’re not capable of discussing anything other than the Mexico City funding matter when the topic is about US organizations and not foreign ones.

SteveMG on January 27, 2009 at 5:23 PM

The specific topic at hand is whether the US government can tell US recipients of funding what type of speech they may engage in.

Again, this is not about performing abortions. It’s about telling patients about the procedure.

SteveMG on January 27, 2009 at 5:09 PM

The US can even prevent US recipients of funding that they cannot tell patients about the procedure. See Rust v. Sullivan (500 US 193 (1990)). You are always free to exercise your First Amendment Rights — it’s just that the US Government, per the Hyde Amendment, does not deign to fund your printing press. Note that this does not stop the States from replacing Federal funds within their jurisdictions — it stops Federal funding of both abortions and abortion counseling.

unclesmrgol on January 27, 2009 at 5:33 PM

Does that mean that a failure to subsidize gun purchases amounts to an infringement on our constitutional rights?

If the govt were going to ever subsidize something like this, I would vote for it.
You can NEVER have enough guns!

Badger40 on January 27, 2009 at 5:37 PM

it’s just that the US Government, per the Hyde Amendment, does not deign to fund your printing press

Yes, but this is not about US funds directly going to abortion counseling (e.g., the printing press).

This is whether the US government can tell recipients of funding that they must not provide abortion counsel. Period. Not just with US funds; but with their own.

In other words, can the US government tell US organizations that if you want funding, you can’t provide abortion counseling even if NO US funds are used in that counseling?

Remember, the Mexico City policy banned funding of groups that provided abortions or abortion counseling. This applied even if the money given was used for strictly and exclusively non-abortion related activities (condoms, birth control pills/devices).

SteveMG on January 27, 2009 at 5:47 PM

The law that was upheld in Rust v. Sullivan was that no US funds:
“Shall be used in programs where abortion is a method of family planning.”

Again, this is about abortion counseling, not the actual abortion or procedure.

Clearly, the government can say that no funds can be used for the procedure itself. The government isn’t required to fund every medical procedure. They can restrict what procedures will be funded or not funded.

But can the government say that if your organization/program discusses abortion, even with their own money, you will not receive funding?

SteveMG on January 27, 2009 at 5:53 PM

Its all about the Group, instead of the Individual… and that is just what this guy seems to be doing as well.

Romeo13 on January 27, 2009 at 4:14 PM
And that sounds strangely like communist doctrine.

Johan Klaus on January 27, 2009 at 5:00 PM

Isn’t that a primary part of the overall debate/strugle? Collectivism VS Individualism?

Red State State of Mind on January 27, 2009 at 5:54 PM

Unfortunately, it also looks like DeMint and Ed are either lazy or doesn’t know all the specifics.

DeMint said: For more than 30 years the Hyde amendments, which prohibit federal funding for abortion services, have been supported by Republican and Democrat administrations and Congresses. Unfortunately, while this is the domestic policy of the United States, President Obama has vowed to reverse our foreign policy by repealing the Mexico City policy and use the federal taxpayer dollars to fund abortion services overseas.

And Ed writes: Steinberg’s explanation attempts to evade responsibility by the Obama administration for their choice to fund abortions abroad

But the Helms Amendment is still in place, and that says that “No foreign assistance funds may be used to pay for the performance of abortion as a method of family planning or to motivate or coerce any person to practice abortions.”

So the revoking the Mexico City Policy didn’t mean that the US was funding foreign abortions, because that is still prohibited by the Helms Amendment.

jim m on January 27, 2009 at 5:56 PM

Obama revoked the Mexico City Policy. The Mexico City Policy banned US funds for abortions and abortion counseling overseas. DeMint questioned Steinberg about this in light of the bi-partisan Hyde Amendment banning federal funding of abortions in the US. Steinberg answered by trying to change the subject essentially saying that if it is possible, the Obama administration will try to do away with the Hyde amendment.

You can try to obfuscate all you want but the question is why does the Obama administration want to fund foreign abortions and abortion counseling.

Vince on January 27, 2009 at 7:04 PM

The Mexico City Policy banned US funds for abortions and abortion counseling overseas

No, it banned funding for abortions and also funding for groups that promoted abortions.

Any international group that promoted abortion or counseled for abortions were not allowed to receive funds. Even if the funds were not going to be used for abortion counseling or promotion.

Again, I’m against all of this funding. Period.

SteveMG on January 27, 2009 at 7:15 PM

Hey according to this moron liberals logic
The us provides and funds prisons and the cia

So it is therefore Our right to demand
Obama FUND and fully utilize CIA secret prisions
Hell it could boost the economy..

Morons..

jcila on January 27, 2009 at 7:31 PM

I don’t think the issue is quite as cut and dried as you suggest, Ed. The Mexico City policy didn’t just prohibit the federal government from subsidizing abortions, it conditioned the receipt of subsidies for other activities on the recipient agreeing to refrain from performing abortions abroad.

Assuming for argument’s sake that there is really some hidden clause of the Constitution that protects a right to abortion, this policy would be analogous to a policy of subsidizing newspapers, but only if they support Democrats, and then rationalizing that the policy is OK because the government was under no obligation to subsidize the press at all. Which, of course, it wasn’t, but…

Xrlq on January 27, 2009 at 8:43 PM

People who oppose illegal immigration should also oppose the Mexico City policy. High population growth rates in other countries push people into America.

thuja on January 27, 2009 at 4:41 PM

It’s not the population growth that’s driving immigration, it’s economics. Neither the U.S. or Mexico ranks in the top 100 countries by population density.

IOW, plenty of room in both countries, much more per capita $ in the U.S.

cs89 on January 27, 2009 at 8:58 PM

The Obama doctrine: mothers killing their babies.

Mojave Mark on January 28, 2009 at 12:18 AM

Either Steinberg has some competence issues or honesty issues. There isn’t a third option.

I vote third option of both.

Buford on January 28, 2009 at 2:27 AM

The nominee was merely reading his answer through the lacunae and penumbras of Rust v. Sullivan and considering how the current or furture SCOTUS might revisit the issue and come down in favor of the smartest constitutional lawyer’s (Mr. Obama’s) position).

eaglewingz08 on January 28, 2009 at 7:43 AM

it conditioned the receipt of subsidies for other activities on the recipient agreeing to refrain from performing abortions abroad.

It is also said, I believe, that the recipient of the funds could not “actively promote” – not just perform but promote – abortions as a method of family planning.

So, mere advocacy of abortion as a method of family planning would prevent a organization from receiving funds.

I can’t see how that would be legal if it was US organizations here and funding.

SteveMG on January 28, 2009 at 9:31 AM