June 29, 2012

Old and Busted: Commerce Clause Abuse. The New Hotness: The Tax Catch-All
— andy

“When I use a word,” Humpty Dumpty said, in rather a scornful tone, “it means just what I choose it to mean—neither more nor less.” ~ Lewis Carroll

There's been a lot of analysis in the wake of yesterday's disastrous (IMO) decision by John Roberts to join the court's liberals and find a constitutional justification for Obamacare, and I thought I'd address a couple of related points that are swirling around (before Ace gets to them in this rare fit of in-before-the-crack-of-noon posting).

First, there's some chatter about the "mandate as a tax" position violating the constitutional requirement that tax bills originate in the House. I hate to burst people's bubbles (not really), but this is just silly.

Don't forget that the law contains some actual tax increases on payrolls, medical devices, etc. If PPACA was an unconstitutional tax on top of all the other issues it has, don't you think we'd have included that fact in our arguments against it before now?

There's a decent post at Hot Air on the legislative history that explains why even though the Senate's version of health care reform was passed it meets constitutional muster.

The bill that passed the Senate wasn’t technically a Senate bill. Reid took a bill that had already passed the House, stripped out the provisions to turn it into a “shell bill,” and then inserted the text of ObamaCare to get around this requirement. The bill that passed the Senate was H.R.3590, which initially had to do with tax breaks for military homeowners. And yes, they’ve used the “shell bill” strategy before. In fact, the conservative opinion today specifically mentioned Article I, section 7 at one point while raising no objection to Reid’s sleight of hand.

The process was admittedly ugly, but the Supreme Court apparently couldn't care less about this type of chicanery.

Now to the more important issue. This idea that Roberts was playing n-dimensional chess and this is some kind of great victory that puts an end to Commerce Clause abuse is ridiculous. Oh, sure, there will never again be a health care mandate offered under the Commerce Clause, but that's about the end of it.

And, worse, any gain that may have come here opened the door to an awful new legislative fallback position where all sorts of laws of dubious constitutionality can be passed and then magically transformed into a tax when they reach the Supreme Court because they could have been passed as a tax.

The Court's ruling ignores the entire reason that taxes were supposed to originate in the House. The idea, in a nation whose founding narrative centers around a tax revolt, was that this was the branch of government most responsive to the people, and the red wave of November 2010 shows that this notion is far from antiquated.

Roberts, in joining the Court's liberal wing, effectively moved the taxation power to the least accountable branch of government. If congress and the president had wanted to pass Obamacare as a tax, I don't disagree that they had the constitutional power to tinker with the tax code in an attempt to arrive at a similar result (the convoluted tax code we have now is largely the product of such social engineering efforts). The question is whether they would have had the political will.

The RNC's new ad that Ace linked this morning (included below the fold here, in case you missed it) gives a pretty good indication of the answer. more...

Posted by: andy at 10:50 AM | Comments (234)
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Digging Out From The Wreckage of ObamaTax
— Ace

First, more evidence that Roberts was in fact swayed by political, not legal or constitutional, pressure. You can read the evidence that the dissent was originally the majority opinion at the link; I'll quote the stuff about politics on the Court.

I should note that I think the Supreme Court is a political body (which is not to say that its decisions are primarily motivated by partisanship or political ideology) and that one can expect that the Court’s rulings are affected by outside events. As I noted long ago, the challenge to the individual mandate would have stood no chance if the president and the ACA were riding very high in the polls, as the Court would not have had the political wherewithal to write what would be seen as a radical opinion invalidating a popular law from a popular president. Similarly, the level of heat defenders of the ACA were giving the Court could have persuaded Roberts that discretion was the better part of valor...

[I]t is ironic that while liberal critics were quick to accuse the Court of playing politics by taking seriously the Obamacare challenges, it may turn out that it was only politics that saved the ACA.

What galls me is that a majority of the public wanted this overturned -- but we don't count. What counts is the opinion of the elites Roberts socializes with. They are a decided minority, but continue imposing their political will on the nation as if they were a majority.

And the actual majority? The Little People don't count. They don't have the right schooling, nor the socialization to truly understand how to best manage their affairs.

I was just reading a bit about the making of The Good, the Bad, and The Ugly. Sergio Leone included a brutal Union prison camp; he noted that there was a lot written about the Confederates' brutal prison camps (like Andersonville) but nothing about the Unions' similar camps. The winners, he noted, don't get written about that way.

Roberts has aligned himself with the elites, who he supposes will be the Winners, and will thus have the final say in the history books about him. And he's probably right that they will have the final say: Conservatives simply do not have much sway at all in some of the most critical institutions in America. And we'll continue paying a high price for that until we change that.

Politics is culture, and culture is politics. Until we claw into a position of near parity in the academic, legal, and media guilds, the liberals will continue to have the power of declaring who are heroes and who are villains.

And weak men like John Roberts will continue kowtowing to their judgments.

Posted by: Ace at 03:11 AM | Comments (217)
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Top Headline Comments 6-29-12
— Gabriel Malor

Friday! more...

Posted by: Gabriel Malor at 01:50 AM | Comments (142)
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June 28, 2012

Overnight Open Thread (6-28-2102)
— Maetenloch

How You Will Die Today

Compared to the top 10 causes of death in 1900 by the New England Journal of Medicine.

And the good news is that life expectancy has risen from 49 years in 1900 to almost 79 today with a much higher quality of life. The not so good news is we're also finally living long enough to get cancer or heart disease.

But perhaps if we eventually unlock the secret to these diseases, we could make the new leading causes of death be duels, reality tv, and ennui.

moderndeath2010

And compare these to what killed people back in 1811. Who knew that cold water, apoplexy, and mortification were so deadly?

1812deaths

more...

Posted by: Maetenloch at 05:07 PM | Comments (665)
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Romney Money Bomb: $2.8 Million
— CAC

And climbing.

If you haven't yet, you know what to do...

Oh, and we need the Senate too:
MA-SENATE (Current hold, leans R, most vulnerable seat for us) DONATE
VA-SENATE DONATE
OH-SENATE DONATE
FL-SENATE DONATE
ND-SENATE DONATE
MT-SENATE DONATE
NM-SENATE DONATE

MO, WI go to whomever you wish.

Nebraska is going to Deb. We need 4 more (as of right now, i see ND, MT, MO-->R as well but all are very close (well, maybe not Missouri); WI if a particular candidate wins. But why stop there?

Posted by: CAC at 03:57 PM | Comments (297)
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Dear GOP: You Get One More Chance
— DrewM

After ObamaCare passed I wrote and open letter to the GOP, "Dear GOP: Fight".
Here's my letter to the GOP after today's events at the Supreme Court:


Dear GOP,

This is your last chance. If you blow this, I'm out and you need to be destroyed.

What is it? Repeal ObamaCare on Day 1. Don't worry about replace, don't worry about anything else. We will do everything we have to drag your sorry asses over the line this fall, including electing Mitt Fucking Romney.

In return this is what you will do:

Instead of adjourning for pictures and tea and cake to celebrate getting your pathetic asses elected to 2 or 6 years on the government teet, you will immediately pass a one line bill that says, "The Patient Protection and Affordable Care Act (and whatever statute number has to be included) is hereby repealed."

That's it. Nothing more, nothing less.

Since Congress meets before Inauguration Day, Obama will still be President. Simply hold the legislation at the desk so the 10 day pocket veto clock doesn't start. If other parliamentary BS is needed, just do it.

Then as soon as Mitt takes the oath of office, before his speech no one will care or remember, walk the bill up to him at the podium to sign.

If this does not happen, the GOP must be destroyed and a new party built to replace it. We've tried the carrot approach (votes, money, volunteers) to change your behavior. Now it's time to show you the stick.

No more, "oh the other guys are worse" scare tactics. That might be true but it doesn't mean you are any good.

This is your one job, do it or join the Whig Party in the dustbin of history.

Posted by: DrewM at 02:03 PM | Comments (582)
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House Finds Attorney General Holder In Contempt
— DrewM

255 Yes, 67 No, 1 Present. 17 Democrats voted yes, so bi-partisanship.

Thursday's vote marked the culmination of the House Oversight and Government Reform Committee's push to hold the government accountable for the failings of Fast and Furious, a scheme which oversaw the sale of firearms to Mexican drug cartels, though the majority of the weapons went missing.

The committee opened an investigation into the operation to determine what the government knew and when, especially in light of a Feb. 4, 2011 letter, which the Justice Department later retracted. The letter incorrectly stated that the Bureau of Alcohol, Tobacco, Firearms and Explosives "makes every effort to interdict weapons that have been purchased illegally and prevent their transportation to Mexico."

The Justice Department refused to hand over many of the documents subpoenaed by the committee citing internal deliberations contained in the materials. President Barack Obama backed the decision and personally exerted executive privilege over the documents last week.

The Democrats staged a walk out. From WI and IN to the House of Representatives, when Democrats don't get their way they walk away like spoiled little brats.

Posted by: DrewM at 12:06 PM | Comments (590)
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Open Thread: Moment of Zen
— Slublog

It's been kind of an irritating day.

Take a break and watch a live cam of a puffin burrow, with cute baby puffin.

Open thread.

Posted by: Slublog at 10:47 AM | Comments (613)
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Sandy Adams: "The other side says this is political. This isn't political. To me, this personal. We have a law enforcement officer... who was killed."
— Ace

Sandy Adams, running in Florida in a primary against a guy who chose, for no good reason, to run against her in that district (he could have chosen another), is blasting Holder right now.

(Disclosure: I'm inclined to like this woman because she's a Tea Partier, ex-law-enforcement (her husband was a LEO too, slain in the line of duty) and she has been taking a forward role in the campaign against SWATting.)

...

Voting time: So far, only four Democrats are supporting the contempt holding, but less than half the house has voted. Update: Now 10.

Sorry, that wasn't the vote. That was just the "roll vote," the vote to take the vote.

That vote passed with about 20 Democrats voting in favor. Republicans appeared unanimous. I imagine the next vote will be similar.

Posted by: Ace at 08:11 AM | Comments (393)
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Roberts: 'Need Not Be Read To Do More than Impose a Tax'
— rdbrewer

"Read" or, say, "interpreted." While I agree with a practical approach to the law, engaging in interpretation on this scale is unwarranted. I disagree strongly with Chief Justice Roberts use of the word "reasonable" in his conclusion:

The Affordable Care Act is constitutional in part andunconstitutional in part. The individual mandate cannot be upheld as an exercise of Congress’s power under the Commerce Clause. That Clause authorizes Congress to regulate interstate commerce, not to order individuals to engage in it. In this case, however, it is reasonable to construe what Congress has done as increasing taxes on those who have a certain amount of income, but choose to go without health insurance. Such legislation is within Congress’s power to tax . . .

(Emphasis added.) The prudential, reasonable thing to do would have been to strike down the ACA and tell Congress "We don't however rule today on the constitutionality of ACA as a tax," thereby leaving open that issue for Congress to try again if it wanted. What Roberts has done is rewrite the law. more...

Posted by: rdbrewer at 09:44 AM | Comments (565)
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Obama's Collapse in Michigan Continues, and Link to Romney Moneybomb
— CAC

In poll #6 confirming this, NBC/Marist (yes, those guys) join the fray.
In their February poll, Obama was cruising along with a 51-33 lead over Mitt.

Fast-forward a few months, and the President is enjoying, if you want to go with that, a 47-43 edge. Four points now. A 14-point collapse in four months. Amongst registered voters. By a firmed pegged by Nate Silver of Five Thirty Eight as leaning Democratic.

I wonder how they'd feel knowing their President just levied a $1.7 trillion tax on them...hint hint, ad team.

Again, Go Big. The SC ruling today should just push us more.
Donate to the Romney Money Bomb HERE.

Posted by: CAC at 07:44 AM | Comments (178)
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Did Roberts Originally Vote To Strike The Entire Law, But Feel "Tremendous Pressure" And Reverse His Vote?
— Ace

Volokh:


Scalia’s dissent, at least on first quick perusal, reads like it was originally written as a majority opinion (in particular, he consistently refers to Justice Ginsburg’s opinion as “The Dissent”). Back in May, there were rumors floating around relevant legal circles that a key vote was taking place, and that Roberts was feeling tremendous pressure from unidentified circles to vote to uphold the mandate. Did Roberts originally vote to invalidate the mandate on commerce clause grounds, and to invalidate the Medicaid expansion, and then decide later to accept the tax argument and essentially rewrite the Medicaid expansion (which, as I noted, citing Jonathan Cohn, was the sleeper issue in this case) to preserve it? If so, was he responding to the heat from President Obama and others, preemptively threatening to delegitimize the Court if it invalidated the ACA? The dissent, along with the surprising way that Roberts chose to uphold both the mandate and the Medicaid expansion, will inevitably feed the rumor mill.

If this "man" changed his vote due to Obama's and his liberal friends' hectoring... I don't know what to say.

And so if I have this right: The Federal Government may now levy a special tax on me if I do not comply with their specific directives about what I should buy, or do?

Can they tax abortions at a high rate?

If I don't eat broccoli, they can assign a special tax, right? After all, it's just a little tax. I have the choice to either eat broccoli or pay the tax.

They can do that, right?

Can they tax me at a high rate if I own a gun? How about if I refuse to own a gun?

The government may now, per Justice Roberts, assign special taxes on people if they do not live their lives the way the government prefers.

As an old fuddy-duddy justice said, a long time ago: The power to tax is the power to destroy.

Posted by: Ace at 07:37 AM | Comments (346)
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Romney's Speech Thread/
And Now Obama Blathers On

— Ace

Giving it to him on ObamaTax. Quotes now posted at Weekly Standard.

Obama's speech is here, wrapping up.

Posted by: Ace at 06:54 AM | Comments (380)
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Now Is The Point At Which I Become Depressed And Listen To The Wall (Parts 1 2 3) Over and Over Again
— Ace

And then -- Nobody Home.

No, not Nobody Home, you say.

Yes, Nobody Home.

Because I must. more...

Posted by: Ace at 06:47 AM | Comments (144)
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July 01, 2012

Your Lovable Hug Box of a Gaming Thread
— Gang of Gaming Morons!

Afternoon 'Rons and 'Ettes.

Zakn Here, manning the Decks of The Good Ship Gaming Moron. I have a few things to post about above the fold, and then Vids, Propaganda, etx. You know the Drill.

Lego Batman 2 for the 3DS. I have the cart, but have not played it much. Not a fan of talking legos. Supposedly they polled it and the 5 yr olds that play it wanted the Legos to talk. LAWN. OFF IT.

more...

Posted by: Gang of Gaming Morons! at 09:00 AM | Comments (87)
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June 28, 2012

DNC Executive Director Taunts on Twitter: "It's Constitutional. Bitches."
— Ace

Executive Director of the DNC Patrick Gaspard actually said that.

Screencap here, thanks to @slublog.

Another DNC tweet -- now deleted -- said "TAKE THAT MOTHER******S!"

That's on drudge. I don't know if the bowlderization was in the original, or who in the DNC wrote it.

Posted by: Ace at 06:29 AM | Comments (235)
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BREAKING: Eric Holder releases new statement: Fast and Furious was a tax.
— Ace

Via @MStevensG8r. Just funny, had to share.

Posted by: Ace at 06:14 AM | Comments (51)
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So, Plan B Didn't Pan Out...
— Ace

...but remember, it was only Plan B, and we had little confidence in it until this past March.

Plan A was always to win the Senate and the White House and flush this piece of shit down the toilet through reconciliation.

Plan A was always Plan A. Plan B didn't start to exist until, what, mid-2011? When we got a favorable ruling in federal court? (And some unfavorable ones?)

And this never seemed all that likely, until John Roberts was so skeptical of the government's case in March. (And then later was swayed by non-legal arguments that court must retain its credibility; 5-4 decisions are illegitimate unless they benefit liberals.)

So, as much as this stings: This whole thing was a Double Secret Bonus attempt at undoing ObamaCare that debuted mid-2011 and then burst onto the scene just four months ago.

Just four months ago.

Plan A was always Plan A, and Plan A is still very much in play.

Ad Released:

more...

Posted by: Ace at 05:58 AM | Comments (285)
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Flashback: Obama Vows Mandate Is Not a Tax
Full Opinion Now Out

— Ace

Via Patterico.

Opinion here. Enjoy the pain.

It's Constitutional. Bitches. So says Executive Director of the DNC Patrick Gaspard.

No, he really said that. Screencap here, thanks to @slublog.


Posted by: Ace at 05:47 AM | Comments (114)
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OBAMACARE UPHELD
— Ace

obamacareskull.gif

Oh, no.

I'm drawing this from SCOTUSblog. They are still reading the decision, and say it's complicated. But for the moment, they say the mandate is okayed, as a "tax."

Roberts joined the liberals. The holding is apparently that it cannot be justified as a Commerce Clause power, but can be under the taxing power.

Medicaid expansion coercion limited but not thrown out. Again, via SCOTUSblog.

Further: The entire act is upheld, except for the Medicaid expansion, which is construed "narrowly." I assume that means they bless the law but signal to the executive they will impose limits in further adjudication.

Good Lord.

Roberts' vote saved the ACA -- so I guess 5-4 decisions are okay again.

Medicaid Limitation: Actually, they found for us on this, and yet the law still stands.

The majority opinion states:

TNothing in our opinion precludes Congress from offering funds under the ACA to expand the availability of health care, and requiring that states accepting such funds comply with the conditions on their use. What Congress is not free to do is to penalize States that choose not to participate in that new program by taking away their existing Medicaid funding.

So the federal government may now only offer extra money to encourage Medicaid expansion-- but may not take away funds (as the law was written) to penalize them if they don't.

This essentially makes Medicaid expansion voluntary.

Who Wrote It? Roberts, I believe, wrote the main opinion. When he wrote that the Commerce Clause could not support ObamaCare, he was joined by the four conservatives. The four liberals dissented on that point, claiming the Commerce Clause gives Ultimate Ninja Power. I believe that concurrence is written by Ginsberg. (Actually it would be a concurrence in part, dissent in part.)

The dissent is written by... Kennedy. Kennedy finds the whole thing must come down, and cannot be justified as a "tax." But he only has four votes for that.

Doctor Flaming Skull from Slublog.

Posted by: Ace at 05:17 AM | Comments (1012)
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