June 30, 2012

Open Thread and Free Movie
— rdbrewer

Dancing Hot Dog rates it "friggin awesome." more...

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Randy Barnett Says This; John Yoo Says That
— rdbrewer

Philip Klein at the Washington Examiner interviewed Randy Barnett, "the legal architect behind challenges to the health care law." Barnett says that Congress is unlikely to use the expanded power and that it's lame; it's too flimsy to survive. He points out that a future (conservative) court could use the "built-in tripwires" to fix the expanded tax power.

He continued, “This is big. And it’s only the stinging disappointment of not being able to take down Obamacare that conceals how big this was. Every one of our arguments got accepted by five justices. Every one.”

. . .

Barnett criticized Roberts’ reasoning in upholding the mandate on taxing grounds, but said it was too flimsy to survive as constitutional doctrine.

“It’s lame,” he said. “The reasoning is transparently lame, and that doesn’t hurt, that helps. Transparently lame reasoning doesn’t stand the test of time. What will stand the test of time is everything he had to say about the Commerce Clause and Necessary and Proper Clause, because that was hard-edged. And that had five votes in support of it.”

. . .

“That is an expansion of the use of the tax power beyond where it’s gone before,” Barnett said. “(Roberts) claimed it wasn’t, that’s lame too. It’s an expansion. It’s just an expansion that Congress will not make use of in the near future and a future court can fix and so what’s necessary now is political action to ensure that that’s not a problem.”

He explained, “If we do change the legal culture, even in the slightest, and we do get new justices on the Court, they are not going to have any problem with this precedent on the tax power. It was lame, it was (Roberts’) own opinion, it built in trip wires that could easily be used in the future by a court that cared.

John Yoo at the Wall Street Journal writes about Chief Justice Roberts "and his apologists." Yoo says no federal law is put in jeopardy by this ruling and that it puts in place a road map for the next great federal expansion. He also points out that a future liberal court would simply ignore Roberts' Commerce Clause ruling.

Conservatives are scrambling to salvage something from the decision of their once-great judicial hero. Some hope Sebelius covertly represents a "substantial victory," in the words of conservative columnist George Will.

. . .

The outer limit on the Commerce Clause in Sebelius does not put any other federal law in jeopardy and is undermined by its ruling on the tax power (discussed below). The limits on congressional coercion in the case of Medicaid may apply only because the amount of federal funds at risk in that program's expansion—more than 20% of most state budgets—was so great. If Congress threatens to cut off 5%-10% to force states to obey future federal mandates, will the court strike that down too? Doubtful.

Worse still, Justice Roberts's opinion provides a constitutional road map for architects of the next great expansion of the welfare state. Congress may not be able to directly force us to buy electric cars, eat organic kale, or replace oil heaters with solar panels. But if it enforces the mandates with a financial penalty then suddenly, thanks to Justice Roberts's tortured reasoning in Sebelius, the mandate is transformed into a constitutional exercise of Congress's power to tax.

. . .

Given the advancing age of several of the justices, an Obama second term may see the appointment of up to three new Supreme Court members. A new, solidified liberal majority will easily discard Sebelius's limits on the Commerce Clause and expand the taxing power even further.

Much more at both links.

I think the difference here is that Barnett is arguing best case scenario. He relies a little too much on hope. Too much "if." Too much belief Congress will view the expanded tax power as radioactive. I'm not so sure they will. And when Congress uses the expanded tax power, it'll be small. Just a little here and there. That's all. Hey, no worries, taxpayer. Trust us. But, of course, that will grow and never go away.

Yoo is more practical. Roberts sacrificed too much for political reasons, "a little peace and quiet from attacks during a presidential election year." And I would add cocktail party reasons. Because what can be better than having Laurence Tribe slap you on the back and bathe you in warm admiration in front of everyone at the backyard party just before offering you a second helping of his famous grilled herbed bell peppers?

Both opinions rely on the future composition of the court, and Yoo points out the necessity for the next president to be very careful. Hopefully Mitt Romney has an adviser who sees the importance of avoiding another moderate. Now there has to be another constitutional conservative.

Like I said, too much "if."

Follow me on Twitter.

Posted by: rdbrewer at 01:16 PM | Comments (307)
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Super Derecho Rips Eastern US
— Ace

A derecho. I didn't even know that was a thing.

It's kind of like a circular storm except it's not circular -- it's a long (240 miles+) front of straight-line wind and rain.

There are two known deaths:

One of the multiple trees that crashed into homes in Springfield, Va., killed a 90-year-old woman as she was sleeping in her bed, according to the Associated Press.

A few hours earlier, a falling tree outside of North Middletown, Ky., (located east-northeast of Lexington) killed a man who was attempting to clear some tree limbs off a road.

The storm has left millions without power, on one of the hottest days of the year.

UPDATE [DiT]: Some pretty freaky pics of the storm and damage here, including this one,


Posted by: Ace at 08:35 AM | Comments (474)
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Laura Ingraham's O'Reilly Factor Interview with Two Constitutional Scholars
— rdbrewer

Laura Ingraham had a great interview with two constitutional scholars last night, Michael Carvin, the attorney who argued the case before the Supreme Court and law professor John Eastman. She started with a quote from Ann Coulter from 2005, "We don't know much about John Roberts. Stealth nominees have never turned out to be a pleasant surprise for conservatives. Never. Not ever." Carvin said that Roberts deliberately ignored the law and called a ball a strike. Eastman said Roberts should resign. From Mediate's report:

Ingraham asked her guests if conservatives are right to feel “mortified” about Roberts being a turncoat. Michael Carvin, a constitutional lawyer opposed to Obamacare who argued before the Supreme Court on this case, boiled Roberts’ decision down to “What Congress did… was unconstitutional, so I’m gonna pretend they did something different and make it constitutional.” He credited Roberts for being “a terrific lawyer who understands the rule of law,” but admitted that unlike Coulter, he did not see a ruling like this coming.

Law professor John Eastman also found the ruling somewhat questionable, stating that the role of the Supreme Court is to tell Congress whether they have or don’t have the authority to do something. And for Roberts to do what he did and find and alternative way to keep it constitutional, Eastman concluded that the chief justice needs to resign.

At the Weekly Standard, Jay Cost makes the case for John Roberts, saying that there is a counterintuitive case to be made that Roberts' decision is a victory for conservatives.

This points to the gravest danger of Obamacare. Much like the progressives of the 1910s, the New Dealers of the 1930s, and the liberals of the 1960s, Obama and his allies assured us that this law was entirely consistent with what had been offered in the past. Nothing new to see here; move along! But that was not at all true. In fact, Obamacare represents the single greatest qualitative expansion of federal power in 80 years.

But, in a subtle way, Chief Justice Roberts did away with much of that. Where he could justify Obamacare on existing federal authority, like the taxing power, he let it stand. Though his factual argument here was admittedly strained, his legal reasoning seems to have created no qualitative expansion of the federal taxing power, which is very broad to begin with (and has been for centuries). But where there was no extant power to back up the bill, he struck it down. In so doing, Roberts actually secured two, hugely important consitutional victories (if not policy ones) for conservatives. He lmited the scope of the Commerce Clause in a meaningful way, spoiling the liberal hope that it confers upon the Congress a general police power. He also won a significant victory for supporters of our dual sovereignty system; by striking down portions of the Medicaid expansion, he sent a clear message that there are limits to how the federal government can use money to boss the states around. These are two enormous triumphs in the century-long war over the principle that the Constitution forbids unlimited federal power.

Cost goes on to point out that there are many who are made worse off by the bill, including "seniors who lose their Medicare Advantage, employees who get dropped from their employers’ plans, families who will see their premiums increase, businesses that have to endure the employer mandate, the taxpayers who have to foot the bill for the whole thing." In other words, the bill is politically unpalatable, and, in Cost's opinion, conservatives can more easily deal with policy problems at the ballot box than they can stealth the constitutional innovations.

It just seems that Roberts could have done both while siding with the four who dissented. Roberts needed no "political space," in my opinion. He could have just done his job. But heaven forbid we inflame the hard left--the same people who would never expect the liberals on the court to side with the constitutional conservatives in order to protect the integrity of the court.

Video of the Ingraham interview below the fold. more...

Posted by: rdbrewer at 07:03 AM | Comments (394)
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Sat. morning non-chess zero content thread [OregonMuse]]
— Open Blogger

OK, so I didn't have time to put together a chess thread for tonight, so there's not going to be one. I know that this will come as a huge disappointment to thousands of you, but there you are.

So, this is an open thread. Zero content.

And since this is a non-chess open thread, talking about chess is strictly forbidden. 'Chest' jokes are OK, though. God knows we don't get enough of those on the chess threads.

Also, longbows.

Beneath the fold you will see how many times Michael Moore has seen his feet since 1993. more...

Posted by: Open Blogger at 06:23 AM | Comments (119)
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Saturday Morning Open Thread
— andy

Still tax-free.

Posted by: andy at 02:24 AM | Comments (338)
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June 29, 2012

Ersatz ONT [Ben]
— Open Blogger

CDR-M's Apple IIe finally crapped out tonight. So you're going to have to settle for this.*

No, Conservatives Did Not Win Anything In The Obamacare Decision

DrewM's write-up at his website made HotAir's Quotes of the Day.

What did Roberts get? Institutional respect for the Court from people who have no respect for the Courts unless they win? That’s not a prize one can count on to last long. If you think liberals we say, “we’ll let it slide next time we lose a 5-4 decision and promise to never again push the boundaries of the Commerce Clause because Roberts gave us ObamaCare” you’ve missed the last 80 or 90 years of liberalism and the courts. Maybe I missed something but the New Deal and Warren courts* were happy to overturn decades and decades of law and never felt the need to “throw a bone” to conservatives (or people who thought the words of the Constitution had some set meanings).

In fact, Roberts has actually lost something very important (if this theory is right)…he’s shown that with enough bullying and threats against the legitimacy of his Court, he’ll give in.


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Obama's handling on health care, per Newsweek:
37% approve, 58% disapprove (44% strongly disapprove).

Approve/Disapprove of Supreme Court Ruling?
Approve 45%
Disapprove 50%

Who should run Congress?
Republicans 38%
Democrats 36%

Obama 47%
Romney 44%

Do you think Barack Obama has done his job well enough to deserve re-election, or is it time to replace him with somebody else?
He has 42%
Time to replace 48%

Does the Supreme Court's decision make you more or less likely to vote for Mitt Romney for President, or does it not impact your opinion?
More likely 32%
Less likely 11%
Not Sure 7%
No Impact 50%

Does the Supreme Court's decision make you more or less likely to vote for Barack Obama for re-election, or does it not impact your opinion?
More likely 14%
Less Likely 29%
Not Sure 5%
No Impact 51%

Generally speaking, do you think the Supreme Court's decision will make our country better off, worse off, or will it not be impacted?
Better off 24%
Worse off 47%
No impact 14%
Not Sure 14%

This poll was conducted immediately after the announcement. Breaks down D+2, ideology 24% liberal 46% moderate 30% conservative.

Not exactly what a lot of political experts would have enjoyed, I think. The nation still disapproves of Obamacare, and calling it, more appropriately, ObamaTax would be effective. The court decision seems to have influenced voter opinions in favor of Romney, though I still suspect the President will enjoy an approval bounce out of this. How long that lasts will depend on Friday's jobs report.

Posted by: CAC at 01:54 PM | Comments (178)
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— Ace

I guess maybe this is a tax too.

“We just learned that ATF senior management placed two of the main whistleblowers who have testified before Congress about Fast and Furious under the supervision of someone who vowed to retaliate against them,” they wrote before describing how senior political figures have made dangerous threats before.

Grassley and Issa said that in early 2011, right around the time Grassley first made public the whistleblowers’ allegations about Fast and Furious, Scot Thomasson – then the chief of the ATF’s Public Affairs Division – said, according to an eyewitness account: “We need to get whatever dirt we can on these guys [the whistleblowers] and take them down.”

Thomasson also allegedly said that: “All these whistleblowers have axes to grind. ATF needs to f—k these guys.”

Issa and Grassley want to know if Thomasson has been admonished. But that's probably executive privilege information, too.

From JammieWearingFool. He's got a story about Democrats donating to cover the costs of Obama events-- anonymously.

The details that Issa put into the Congressional Record can be found

Posted by: Ace at 02:55 PM | Comments (284)
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Local Missouri Report: Claire McCaskill Is Hiding From Reporters, Refusing To Say If She Still Supports ObamaTax
— Ace

Pretty brutal.

They also note the New York Times report that Claire McCaskill lobbied the White House to not hold the Democratic National Convention in St. Louis.

That's right -- she lobbied the organization to not spend millions in her state. Why? Because it would be bad for her, politically.

So Missouri? No millions of dollars of out-of-state money for you. It would be coin in your pocket, but Claire McCaskill would find it politically awkward, so. You lose.

Wow, you guys who live in non-Blue States? Your local media is like Bizarro Earth to me! It's incredible -- they actually say unhelpful things about Democrats!

Here's the link, also embedded below.


Posted by: Ace at 11:59 AM | Comments (420)
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$51 for 51 Senate Seats

Challenging all morons to kick in $51 dollars for 51 seats today.
Donate $5 to each candidate below, and a buck to whomever you like in the Wisconsin or Missouri races. If there is any possible chance of undoing ObamaTax, you need more than just President Romney. You need a Republican Senate (and with seats to spare, IYKWIM,VCD).

MA-SENATE (Current hold, leans R, most vulnerable seat for us) DONATE
NV-SENATE (Current hold, leans R, 2nd most vulnerable)DONATE

MO, WI go to whomever you wish. Kick your $1 to 'em.
Holding the first two and flipping 4 of the next ten gets us 51 (Nebraska is ours), anything more is gravy.

Posted by: CAC at 11:28 AM | Comments (122)
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Issa Puts Wiretaps Detailing Official Knowledge of Gunwalking Tactics Into Congressional Record
— Ace

This is that red-banner headline Drudge has -- but the site is overloaded and can't be reached.

But JohnE. reached it earlier, and sent it by email.

This is from Roll Call. Update: Link now appears to be working.

Darrell Issa Puts Details of Secret Wiretap Applications in Congressional Record

By Jonathan Strong
Roll Call Staff
June 29, 2012, 12:06 p.m.


The wiretap applications are under court seal, and releasing such information to the public would ordinarily be illegal. But Issa appears to be protected by the Speech or Debate Clause in the Constitution, which offers immunity for Congressional speech, especially on a chamber’s floor.

According to the letter, the wiretap applications contained a startling amount of detail about the operation, which would have tipped off anyone who read them closely about what tactics were being used.

Holder and Cummings have both maintained that the wiretap applications did not contain such details and that the applications were reviewed narrowly for probable cause, not for whether any investigatory tactics contained followed Justice Department policy.

The wiretap applications were signed by senior DOJ officials in the department’s criminal division, including Deputy Assistant Attorney General Jason Weinstein, Deputy Assistant Attorney General Kenneth Blanco and another official who is now deceased.


The tactic, which was intended to allow agents to track criminal networks by finding the guns at crime scenes [???], was condemned after two guns that were part of the operation were found at U.S. Border Patrol agent Brian Terry’s murder scene.

What? That's the first I've seen it reported, as a fact, that the intent was actually murder -- that they'd track the guns via their appearance at murders (and other crime scenes).

Is that now established?

How do you track guns without tracking them? A: Apparently you just wait until they're used to kill people, then you know where they ended up.

I can't quote it all; even though their site is currently unreachable, I'm still constrained by Fair Use. But check the link at Drudge periodically.

Posted by: Ace at 09:08 AM | Comments (475)
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"Consistent With a Weakening Growth Backdrop," And Other Euphemisms For "The Economy Is Contracting"
— Ace

Via @gaypatriot, consumer spending is the weakest in six months.

Consumer spending stalled in May as stagnant wages and slackening employment held back the biggest part of the U.S. economy.

Purchases were little changed after a 0.1 percent rise the prior month that was smaller than initially reported, according to Commerce Department figures issued today in Washington. Another report showed household sentiment dropped this month to the lowest level of the year.

In some possibly good news, Europe says it's had a "breakthrough" on its finance crisis.

Before quoting it, I'll just mention the old truism that diplomats only announce success, because a diplomat defines "success" as "an agreement." They're not in the business of solutions, they're in the business of agreement.

And yes, this is a negotiation among sovereigns, so it is a diplomatic effort.

And they've struck an agreement.

But I don't see how any agreement changes the basic math: Most of Europe is spending more than it is willing to pay, backstopped by German wealth, and the Germans, for obvious reasons, don't want to continue subsidizing the rest of Europe.

But they have an "agreement."

Under the deal, European leaders agreed to create a single supervisory body to oversee the eurozone's banks which could use the single currency area's rescue funds, the European Financial Stability Facility or European Stability Mechanism, to aid banks directly without adding to governments' debt.

Without reading the details: This would mean Germany is funding an emergency stabilization fund, which is then used to recapitalized the failing, near-bankrupt banks of the PIIGs.

And that will tide them over... until the next time they need to borrow a few dozen billion on Germany's account.

Posted by: Ace at 07:48 AM | Comments (188)
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Obama Surrogate: ObamaTax is Not a Tax
— Ace

Devall Patrick, an Obama surrogate, re-stated on a conference call that the ObamaTax was not a tax, but a penalty.

“Don’t believe the hype that the other side is selling,” Patrick said on a conference call organized by President Obama’s campaign.

“I just want to respond to the frankly bizarre attack, which is the claim this act represents a big tax increase on the middle class,” Patrick said. “First, this is a penalty. It’s about dealing with the freeloaders -- the folks who now get their care without insurance in high-cost emergency room setting. And all the rest of us pay for it today."

Taxes are for the purpose of raising revenues, not for penalizing activities (or inactivities) the government doesn't favor. So on that score, he's right.

Okay, let's put this in writing. Let's pass a law that states, unambiguously, that neither Congress nor the President believe that this is a tax, and do not intend it to be a tax, and do not mean for it to have the legal classification of a tax. That it is and shall be American law that the mandate is not a tax for any purposes, including as parsed by the courts.

Let's pass that bill, and send it on over to the President for his signature. After all, he says it's not a tax.

Or Do It The Other Way... and propose that Democrats state it's officially a tax.

If they decline, bring suit again.

via @tsrbike.

Good Piece By Richard Epstein: He wrote in the NYT, but I'm linking American Thinker.

As a matter of constitutional text, legal history and logic, the power to regulate commerce and the power to tax should not be separated. It is not good for the court or the country that the chief justice's position in such an important case is confused at its core.


Through the early 20th century, the Supreme Court was cognizant of this tight relationship between the power to regulate an activity directly and to the power to tax it. The basic idea relies on a simple economic insight: taxation and regulation are close substitutes, so a limitation on one power matters little if the other power is still available. There is no practical difference between ordering an action, and taxing or fining people who don't do that same thing. If the Constitution limits direct federal powers, it must also limit Congress's indirect power of taxation.


Chief Justice Roberts has ignored this fundamental principle: If direct regulation is beyond the scope of the Commerce Clause (as he held), then taxation as an indirect route to the same regulation should be off limits as well (as he failed to hold).

Obama's lawyers urged to Roberts that the federal government's powers were unlimited, via the Commerce Clause.

Roberts sharply disagreed -- he ruled the federal government's powers were unlimited, via the taxing power.

Color me unpersuaded by the chorus of "Wow, we super-won the long-game!"

That last bit via Andy, @theh2.

Posted by: Ace at 08:24 AM | Comments (326)
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Romney's Post-Ruling Haul: $4.3 Million
— Ace

Not too shabby.

Meanwhile, via Politico (no link), Obama claims he raised even more than that...

"We've outraised the Romney campaign in that time period but that's not the point - our supporters are more committed than ever to ensuring that insurance companies can't drop coverage for people who get sick or discriminate against people with preexisting conditions by reelecting the President," campaign spokesman Ben LaBolt said in an email.

...but won't say how much.

Greg Sergant demonstrates the unwavering nose for news he's known for:

Greg Sargent @ThePlumLineGS
Who cares which campaign raised more in the last 24 hours?

Posted by: Ace at 06:58 AM | Comments (280)
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Obama Baits 55% of Public on Twitter: "Health care is still a BFD"
— Ace

And he does so to sell a t-shirt proclaiming the same thing.

Is it wise to bait 55% of the public? Tweet here, at Twitchy.

"This Job Is In The Hands of the People:" Jim DeMint rallies The Resistance.

More: Slublog baited Obama back with a series of photoshops mocking Obama's gloating.

Posted by: Ace at 06:25 AM | Comments (193)
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Liberals: Oh No You Can't Use Reconciliation To Undo ObamaTax
Republican Senators: Oh Yes We Will

— Ace

Some pre-emptive butthurt from liberals:

@timothypmurphy: Old enough to remember when reconciliation was an unconscionable abuse of power.

Right, because only you get to use reconciliation to pass a bill, but it would be hypocritical of us to take you at your word -- that the bill is subject to reconciliation -- to repeal it.

Kaus wonders why liberals believe this.

If a law can be passed via reconciliation, how on earth could someone argue with a straight face that it would be improper to modify it -- or repeal it -- via the same process?

Huh? The individual mandate is a tax! The Supreme Court has now told us. Maybe the Senate parliamentarian calls it something else–but whatever you call it, it raises revenue and repealing it would have a budgetary effect, and hence be reconciliationable. Here’s Republican Congressional expert Keith Hennessey admitting that the mandate is subject to reconciliation (and this at a time when his interest was in blocking Obamacare, which meant having as few things subject to reconciliation as possible). Certainly the GOPs could cut the monetary penalty (ax-tay) for not having health insurance to, say, a dime. That would certainly have a budgetary effect and a C.B.O. score.

Maybe the exchanges themselves wouldn’t be reconcilable, but if Romney could get rid of the mandate and the subsidies the exchanges would be stripped of their power as a vehicle to ensure universal coverage. Obamacare would effectively be repealed.

I have no idea why you'd think the exchanges couldn't be repealed by reconciliation -- I say again, they were enacted by reconciliation. If they were fit subjects for reconciliation then -- as part of a "comprehensive scheme" that included, but was not limited to, budgetary matters -- then they can be reconciled away via a "comprehensive scheme" of repeal.

Republican Senators say they're eyeing just this tactic. I wonder what on earth would stay their hand, though, except a desire to betray their voters.

Doing so would be a grievous mistake.

Sen. Jim DeMint (R-SC) seemed open to that approach during a speech at The Heritage Foundation shortly after the Supreme Court handed down its decision. The court’s ruling “does present some options for us” to pursue more unconventional options for repeal, DeMint said. He mentioned reconciliation as a potential avenue.

A senior Senate Republican aide involved in the repeal effort later confirmed to Scribe that the GOP will use the budget reconciliation process to repeal the full law, not just the portion requiring all Americans purchase health insurance.

We need 51 Senate seats. That makes it critical to win Democratic seats in Red States -- like Jon Tester's. Tester is popular in Montana, and will of course vote to keep ObamaTax. He'll almost certainly lie about this, but in the end he will vote as he did before -- for ObamaTax.

I don't know what on earth it will take to get Red State voters to finally wake up to this reality. But I know we need to try.

At the end of the say, insult them with an ad asking "Are you really this stupid?," if nothing else works. But they have to be disabused of this idea that just because a Democrat poses in ads with a shotgun that he'll do anything but vote liberal on the tough votes.

Posted by: Ace at 05:12 AM | Comments (333)
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Obama's "Crowning Achievement" Is... A Tax
— Ace

Before that, let me agree with Legal Insurrection: This is a loss, and a bad one. It can be avenged, and it can be undone, but the cheerleaders claiming this is some kind of victory are addlepated.

Sure, we now are motivated for November. And maybe in the end we will get rid of Obamacare.

But that is then and this is now. And under any reasonable theory of conservative judicial restraint, the Chief Justice should have allowed Obamacare to fall of its own weight, of a weight born of a political process in which the mandate could not be called a tax because the nation would not have stood for it.

This is now, and today we should have been rid of this monstrosity.

We live to fight another day, but don’t tell me we won because someday possibly in the future in some other case with some other set of Justices we maybe might achieve some doctrinal benefit from the Commerce Clause ruling.

So please don’t delude yourselves. Today was a bitter loss because it was one we should have won.

But now, about that ObamaTax.

Now, Republicans can attack the law not only for being “big government” but for being a huge tax during in weak economy, adding burdens to middle class taxpayers and slowing economic growth. And the GOP doesn’t have to come up with a detailed plan to “replace” Obama’s health care plan.

“Since politics is the ultimate zero-sum game,” writes Quinnipiac’s Brown,” what’s good for Obama is bad for Romney.”

Well, maybe, but in this case there are two issues – the legal and the political.

The Court’s decision doesn’t undercut Romney’s opposition to the law. Instead, it gives him more political ammunition: taxes.

So in the end, the Court’s ruling is something of a split decision: A big legal win for President Obama that enhances the Republicans’ political position heading to November.

That said, we already could call it a tax, or tax-like; I don't think we get anything more from the Court's characterization of it as a tax.

But we ought to try, anyway. And the RNC is already trying:

I was annoyed that they didn't include audio of Obama's Solicitor General arguing it's a tax -- because that really makes the connection. To the public, he says it's not a tax; in court, he says it is.

The ad, as it stands, leaves open the possibility, in the minds of those who don't know, that the Supreme Court came up with this characterization themselves.

They didn't. Obama's lawyer argued it.

Oh: See the funny photoshop at the end of this post.

Posted by: Ace at 04:36 AM | Comments (178)
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June 30, 2012

Overnight Open Thread

OK Democrats, enough of this BS (White House Claims ObamaCare Fine A 'Penalty', Despite Court Calling It A Tax). Is Obamacare a tax or not? Answer the friggin' question. Own it.

Oh and Jay Carney, you might want to finally read the law.

Carney went on to say Friday that the "penalty" will affect only about 1 percent of Americans, those who refuse to get health insurance.

Um Jay, it will affect more people than you think. Seven New Taxes On Citizens Earning Less Than $250K. more...

Posted by: CDR M at 04:40 PM | Comments (633)
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June 29, 2012

At The Heart of Roberts' ObamaTax Sophistry Is The Remarkable Claim That The Law Is A Tax When He Needs It To Be But Not A Tax When He Needs It Not To Be
— Ace

York says this drove the conservatives on the Court "nuts."

I know it drove me nuts.

I'm going to boldface a single word in this excerpt.

Before getting to the heart of the case, the justices first wanted to deal with what seemed to be a side issue: Was the penalty imposed by the individual mandate in Obamacare a tax? If it was, the case would run afoul of a 19th century-law known as the Anti-Injunction Act, which said a tax cannot be challenged in court until someone has actually been forced to pay it. Since the Obamacare mandate wouldn't go into effect until 2014, that would mean there could be no court case until then.

No one had challenged Obamacare on that basis; the challengers wanted the case to go forward now. The White House, having argued strenuously during the Obamacare debate that the penalty wasn't a tax, wanted to go ahead as well. So the court, on its own, tapped a Washington attorney to make the argument that the penalty was a tax and therefore the case should not go ahead.


After Long made his case, it fell to the administration's lawyer, Solicitor General Donald Verrilli, to argue that no, the mandate was not a tax, and therefore the case was not subject to the Anti-Injunction Act.

At the same time, everyone knew that the next day, when Verrilli planned to argue that the mandate was justified under the Constitution's Commerce Clause, he had as a backup the argument that it was also justified by Congress' power to levy taxes -- in other words, that it was a tax.

Justice Samuel Alito saw the conflict right away.

"General Verrilli, today you are arguing that the penalty is not a tax," Alito said. "Tomorrow you are going to be back, and you will be arguing that the penalty is a tax. Has the court ever held that something that is a tax for the purposes of the taxing power under the Constitution is not a tax under the Anti-Injunction Act?"

"No," answered Verrilli.


It wasn't a tax for purposes of getting it passed politically, also wasn't a tax for purposes of delaying judgment based on the Anti-Injunction Act, but then magically became a tax in order to be upheld.

If the government now has the power under the taxing power to enforce its preferences regarding how citizens live their lives, Ed Morrissey proposes, modestly, a new tax on those who refuse to buy guns.

Allah considered a similar question yesterday: Whether the government could put a punitive tax on you for owning a gun. Gun ownership is a right, he thought, so the ObamaTax logic wouldn't fully apply. You can't burden a right.

Well, owning a gun is a right, but not owning a gun is not a right. Or at least it's no more of a right than not owning insurance.

We can pass a great many laws like this, enforcing our preferences in any area that isn't an explicit (or penumbra-ish) right under the Constitution.

Don't go to Church regularly? Why, we can tax that. And before you say it's your right not to go to church -- of course it is, but we can compel all Americans to spend at least two hours each week on philosophical contemplation, whether it be at church or in Quiet Home Study of non-religious philosophical texts.

If a temporary majority in Congress thinks it's a good idea -- tax away!

The Constitution apparently gives the government the right to dictate almost all of our personal choices, so long as it enforces these preferences via punitive taxes. So let's get started.

Posted by: Ace at 03:58 AM | Comments (182)
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