... it's so organic.
Saturday, March 31, 2012
Esquire's blogger Charles P. Pierce purports to instruct me: "For the record, writers do not write their own headlines."
He writes: "Thanks for the link, but, seriously, I know there are better things to do in Wisconsin than to be this publicly dim."
Typical lefty response, to call your opponent stupid. But:
1. Hello? Pierce? You're writing a blog. Bloggers write their own post titles. You can call yourself a "writer" and call your post title a "headline," but I presume if I'm looking at a real blogger, you write your own post title.
But whether you write it or some unnamed person at Esquire does, you are responsible for it. And the words were not only ignorant; they resonated with anti-Italian material throughout your post. Or would you prefer to call it an "essay"?
2. Your post really was dumb. You insulted Justice Scalia when you did not understand what he was talking about. I pointed that out. You scribble — presumably doing your own writing — about tweaks to the ACA in the wake of criticism of the "Cornhusker kickback," in some desperate attempt to recover some dignity, but you still haven't shown any sign that you understand the purpose of Scalia's hypothetical.
3. You repeat your accusation that Scalia is "just not trying very hard anymore." But Pierce, you lazy, lazy man. You are not trying at all.
4. But I am an idiot. An idiot to send this loser any more traffic. But I just had to kick his flabby old ass one more time.
Typical lefty response, to call your opponent stupid. But:
1. Hello? Pierce? You're writing a blog. Bloggers write their own post titles. You can call yourself a "writer" and call your post title a "headline," but I presume if I'm looking at a real blogger, you write your own post title.
But whether you write it or some unnamed person at Esquire does, you are responsible for it. And the words were not only ignorant; they resonated with anti-Italian material throughout your post. Or would you prefer to call it an "essay"?
2. Your post really was dumb. You insulted Justice Scalia when you did not understand what he was talking about. I pointed that out. You scribble — presumably doing your own writing — about tweaks to the ACA in the wake of criticism of the "Cornhusker kickback," in some desperate attempt to recover some dignity, but you still haven't shown any sign that you understand the purpose of Scalia's hypothetical.
3. You repeat your accusation that Scalia is "just not trying very hard anymore." But Pierce, you lazy, lazy man. You are not trying at all.
4. But I am an idiot. An idiot to send this loser any more traffic. But I just had to kick his flabby old ass one more time.
A rally to repeal Wisconsin's "castle doctrine" law — citing Wisconsin version of the Trayvon Martin case.
The Wisconsin State Journal reports on a rally — with about 150 — that occurred on campus here in Madison last Tuesday.
ADDED: Here's an item by "kazoo of the north" over at Daily Kos titled "Bo Morrison: Wisconsin's own Trayvon Martin." It begins:
[T]he March 3 killing of Bo Morrison, a 20-year-old from West Bend... came roughly a week after a neighborhood watch volunteer in Sanford, Fla., shot and killed Trayvon Martin, 17, in another disputed case of self-defense. Both young men were black and unarmed, which has ignited charges that the shootings were racially motivated.... At Tuesday’s event on Library Mall, organizer Dan Suarez of the International Socialist Organization called the two deaths “lynchings.”A "3-season porch" sounds more like enclosed room within the house than a typical area that you'd call a "back porch." I would have used the preposition "in," not "on." There was a strange, uninvited man inside the house. Why would you hold a rally, inflaming emotions, declaring he was "murdered because of the color of their skin," when he was a home intruder?
“They were murdered because of the color of their skin,” Suarez declared. “We have been taught in the United States to be afraid of young black men.”
Morrison was killed around 2 a.m. March 3 while hiding from police on the back porch of a house in Slinger. The homeowner — who had called police earlier to complain about loud noise from a party — found the young man on his darkened three-season porch.
Washington County District Attorney Mark Bensen declined to issue charges, finding the shooting met the criteria for self-defense under Wisconsin’s “castle doctrine” law, which took effect in December....
Morrison’s friend Christine Bohn, a UW-Madison student, told the crowd she was there when the parent who owned the garage where the young people were partying told them to leave to avoid police.It's very sad that Morrison made a bad decision and frightened a man in his own house, if that's what happened, but what is the basis for bandying this misfortune about as a racialized murder? Was the homeowner "afraid of young black men" or afraid of a home intruder? Everyone's afraid of home intruders!
“We were a group of kids who were forced to run to avoid underage drinking tickets,” said Bohn, 18. Bohn said Wisconsin self-defense law “unfortunately protected the wrong person that night.” She called the law “barbaric and inhumane” and said it encourages those who feel threatened to kill as a first reaction.
ADDED: Here's an item by "kazoo of the north" over at Daily Kos titled "Bo Morrison: Wisconsin's own Trayvon Martin." It begins:
People who have families in Wisconsin that go back more than 100 years have ancestral memories of surprising, uninvited, visitors. In the 1800's, the indigenous peoples of Wisconsin were known to walk into a house, warm themselves by the fire, and then leave. Fires in homes were viewed as communal property, which any cold person could use on their way to where they were going. They would not insult the owner of a fire by thinking inhospitable thoughts about them. Traditions go back to the French and Indian fur trading alliance. Traditions die.IN THE COMMENTS: David wrote:
I lived for over 20 years in Milwaukee, and that's how we survived. We would walk a block or two and duck into someone's house. Sometimes they had a fire, sometimes just the furnace was on. Twice in one year, there was a couple fucking in the living room. Of different houses. They never noticed us, and we just kept quiet and watched until we were warm enough.
We had no idea that this was a native American tradition. We thought the Germans had brought it with them from the Old Country. Sometimes (if they weren't fucking) the people in the house would talk to us. "How's the weather?" they would say. "Cold," we replied. But overall they just pointed to the fire and left us alone.
It all seemed so normal and civilized. Then I moved to Chicago and the first time I walked into someone's front hall, there was a 12 gage in my grille. The guy did not ask about the weather. He made me lie down and called the cops. Even though I am a white person!
It cost me $9000 in legal fees to get a probation and expungement for good behavior. The lawyer told me to say I was under the influence of some drugs (legal drugs of course.) He said if I told the judge that people in Wisconsin just walk into other peoples' houses in winter, the judge would have me up for perjury.
I wish I had known before that this was a native American thing. We can learn so much from their simple and thoughtful ways.
"Laws do not allow teachers to use children for partisan political advocacy, but that has not been the case, particularly in Wisconsin."
"Elementary school children have been forced to take part in anti-Scott Walker activities, even those young enough to not have any real grasp of the actual political issues facing the world. Big Labor has made the classroom much more political than it should be."
A billboard in Madison.
A billboard in Madison.
Obama wants to "make this country a little fairer."
With "the Buffet Rule": "If you make more than $1 million a year, you should pay at least the same percentage of your income in taxes as middle class families do... On the other hand, if you make under $250,000 a year – like 98 percent of American families do – your taxes shouldn’t go up."
Okay, well thanks for reminding me not to let my income spike up over $250,000. I want to remain in my safe cocoon of acceptably restricted income. I don't want to be one of those people who is making things feel unfair.
But the Buffet Rule would only raise $47 billion over a period of 10 years. $47 billion won't even cover 1 week of running the federal government. So it's nothing remotely approaching a serious effort at balancing the budget.
What is it then? Obama is telling us. Right there in the post title. Make this country a little fairer. The only reality is how everyone feels. Now, go to sleep children.
Okay, well thanks for reminding me not to let my income spike up over $250,000. I want to remain in my safe cocoon of acceptably restricted income. I don't want to be one of those people who is making things feel unfair.
But the Buffet Rule would only raise $47 billion over a period of 10 years. $47 billion won't even cover 1 week of running the federal government. So it's nothing remotely approaching a serious effort at balancing the budget.
What is it then? Obama is telling us. Right there in the post title. Make this country a little fairer. The only reality is how everyone feels. Now, go to sleep children.
Rush Limbaugh — calling SCOTUSblog "a very, very left-wing blog" — explains "the left's" "full swing" "effort to intimidate" the Supreme Court.
That took me aback, because I'm so used to viewing SCOTUSblog — which I read all the time — as a very authoritative and relentlessly sober source of information about what's going on in the Supreme Court.
(Yeah, I called it "civility bullshit" from Day 1, because I always thought it was a one-sided effort to quiet critical voices and because I don't accept instruction on form of expression and because I think the demand that everyone speak in a sober manner further empowers those who already hold more than their share of power. As they say in China: "Can I say a curse word? No? Then I've got nothing to say.")
But back to Tom Goldstein in SCOTUSblog:
Goldstein, like the Bloomberg News article he links, professes outrage over the way the ad plays Verrilli's drinking of ice water and saying "excuse me" twice. You hear it and you hear it again. Duh. The repetition of the sound bite is obvious, but Goldstein and Bloomberg call it "doctored" audio, as if they've uncovered something nefarious, and do a high dudgeon routine:
RUSH: There's a very, very left-wing blog called the SCOTUS blog, and the guy there is predicting 6-3 for the whole thing being found constitutional, 6-3. A lot of others have looked at his reasoning, "Yeah, you know what, I like that reasoning, it makes perfect sense to me. I think I'll sign on to that." If it happens, and if it happens the way the theory explains it, we don't have a court looking at the law anymore. We have a fully politicized third branch of government.... The chief justice, John Roberts, gets to decide who should write the opinion when he is in the majority. He assigns it. This theory holds that he'll write it himself....Now, if Rush links to the SCOTUSblog item he's talking about, I can't find it over there. I went to SCOTUSblog to look for it myself, and I found something else that really shook my opinion that SCOTUSblog is a sober place that maintains a professional gloss:
The idea that this legislation is so important, so transformative that a 5-4 decision is not desirable by the chief and by a lot of people, that it would roil the country. A 5-4 decision is too narrow if they're gonna find the bill unconstitutional.... The theory is that Kennedy will go ahead and join the libs and make it 5-4 for total constitutionality, because he signaled that. Then Roberts, after having seen that, knows he can't stop it, so he joins the majority to make it 6-3 so that he gets to write the opinion. And in writing the opinion, Roberts will then limit the scope of the Obamacare bill to something like, yes, Congress can force us to buy health insurance, but nothing else....
Now, the theory that I just gave you comes from SCOTUS blog. It's run by a very left-leaning guy. A lot of people who are not liberals have run across this theory and it appeals to them. It's slowly but surely behind the scenes becoming conventional wisdom, and of course the left is glomming onto this, 'cause they love this possibility....
Now, don't worry too much about this theory, folks. The theory is becoming conventional wisdom and that means it's irrelevant and is wrong. It's advanced by the left. And, by the way, here's a quote from Senator Richard Blumenthal, former attorney general Connecticut, now Senator from Connecticut. The left is playing this "you will ruin your reputation" card. That's what this theory is about, the theory that justices will see it. They're trying to intimidate the court into ruling in favor of Obamacare....
So you guys on the court, you people on the court, you are going to destroy the court and your credibility and people won't obey if you do the right thing here and find this constitutional. So the effort to intimidate is under full swing.
The RNC shoots itself in the mouthShoots itself in the mouth?!!! I thought good people were supposed to eschew murderous metaphors after the Tucson shootings. Remember that? The "new civility" stuff Obama lectured us about. Click my "civility bullshit" tag to brush up on the topic.
(Yeah, I called it "civility bullshit" from Day 1, because I always thought it was a one-sided effort to quiet critical voices and because I don't accept instruction on form of expression and because I think the demand that everyone speak in a sober manner further empowers those who already hold more than their share of power. As they say in China: "Can I say a curse word? No? Then I've got nothing to say.")
But back to Tom Goldstein in SCOTUSblog:
Opponents of the Affordable Care Act and the Obama Administration... did a tremendous job framing their constitutional argument against the statute to the public, the lawyers on their side were brilliant, and it appears that they had a receptive Supreme Court majority. It was an eleven on a scale of one to ten.Here's the quite hilarious and brilliant ad:
Now this. The RNC released an advertisement... with audio from the halting beginning to Don Verrilli’s oral argument on the individual mandate to make the point that (as the ad’s title says) “ObamaCare: It’s a tough sell.”
Goldstein, like the Bloomberg News article he links, professes outrage over the way the ad plays Verrilli's drinking of ice water and saying "excuse me" twice. You hear it and you hear it again. Duh. The repetition of the sound bite is obvious, but Goldstein and Bloomberg call it "doctored" audio, as if they've uncovered something nefarious, and do a high dudgeon routine:
I’ve been in practice for seventeen years, and the blog has existed for ten, and this is the single most classless and misleading thing I’ve ever seen related to the Court. It is as if the RNC decided to take an incredibly serious and successful argument that has the chance to produce a pathbreaking legal victory for a conservative interpretation of the Constitution, drag it through the mud, and vomit on it. I would be shocked if a serious conservative lawyer would stand by the ad.Oh, for... Can I say a curse word? No? Then I've got nothing to say.
Romanticizing suicide. [AND: Murder!]
In the NYT.
Expect more propaganda of this kind, my friends, because in the future, it is hoped, you will be your own death panel.
Expect more propaganda of this kind, my friends, because in the future, it is hoped, you will be your own death panel.
"The part I struggle with is how you undo two years worth of implementation..."
"It would leave tremendous uncertainty about what is the direction we’re going in and that uncertainty would obviously affect the patients directly."
Consider the argument — featured in the NYT — that it's too late to strike down Obamacare, because so much work and planning and money has already been sunk into implementing it. And yet some experts say that the"important dialogue that has happened over the last three and a half years" will make it "easier for Congress or the states to revisit the issue."
IN THE COMMENTS: John Althouse Cohen said:
Consider the argument — featured in the NYT — that it's too late to strike down Obamacare, because so much work and planning and money has already been sunk into implementing it. And yet some experts say that the"important dialogue that has happened over the last three and a half years" will make it "easier for Congress or the states to revisit the issue."
IN THE COMMENTS: John Althouse Cohen said:
Isn't there also an argument that the case isn't ripe yet because no one has been harmed? So it must be either too early or too late for the law to be struck down.
Crackdown on blog commenting.
In China:
Can I say a curse word? No? Then I've got nothing to say.
The moves are among the most dramatic censorship efforts undertaken by Beijing since the rise over the past two years of the popular microblogging services, known in China as weibo. They allow the fast dissemination of information, challenging the central government's traditional control of the media....I wonder what all the catchphrases and running jokes and allusions are in China.
With the commenting services suspended, users may interact only by republishing others' posts and adding their own words. "Can I say a curse word? No? Then I've got nothing to say," quipped one user on Sina Weibo using the name Wiyu Chuzhi, apparently referencing a popular Chinese Internet joke about unhappiness over rising gasoline prices.
Can I say a curse word? No? Then I've got nothing to say.
Friday, March 30, 2012
Unpaid bloggers lose their lawsuit against Huffington Post.
"The principles of equity and good conscience do not justify giving the plaintiffs a piece of the purchase price when they never expected to be paid, repeatedly agreed to the same bargain, and went into the arrangement with eyes wide open."
"This is the electronic equivalent of someone writing a letter to the editor," John Coffee, a professor at Columbia Law School, said in an interview. "You are rewarded by publication, not by payment."You want to get paid for your writing? Bargain for it. And quit whining. No one wants to read things written by whiners, so you're only digging yourselves a deeper hole.
Olbermann falls further.
Fired by Al Gore's Current TV, less than a year after getting fired by MSNBC. Ouch.
Release the chakras!
We created Current to give voice to those Americans who refuse to rely on corporate-controlled media and are seeking an authentic progressive outlet. We are more committed to those goals today than ever before. Current was also founded on the values of respect, openness, collegiality, and loyalty to our viewers. Unfortunately these values are no longer reflected in our relationship with Keith Olbermann and we have ended it.Yeouch. Olbermann reacts:
... [Al] Gore and [Joel] Hyatt, instead of abiding by their promises and obligations and investing in a quality news program, finally thought it was more economical to try to get out of my contract.Oh! The ethics of Al Gore, exposed in a lawsuit brought by Keith Olbermann. I can almost hear the Gore-haters of the world salivating.
It goes almost without saying that the claims against me implied in Current's statement are untrue and will be proved so in the legal actions I will be filing against them presently....
In due course, the truth of the ethics of Mr. Gore and Mr. Hyatt will come out....
Release the chakras!
The recall election against Gov. Scott Walker is scheduled, and Milwaukee Mayor Tom Barrett announces that he will run.
1. The Government Accountability Board certifies the election and schedules it for June 5. Get ready!
2. Tom Barrett, whom Walker defeated in the regular election in October 2010, has — at long last — said he's running.
UPDATE AT 5:05: Friends of Scott Walker comes out immediately with an anti-Tom Barrett ad:
2. Tom Barrett, whom Walker defeated in the regular election in October 2010, has — at long last — said he's running.
Barrett, 58,the fourth Democrat to declare his candidacy in the recall election. They will face off in a May 8 primary... Former Dane County Executive Kathleen Falk was the first Democratic candidate to jump into the race, and she has already locked up most of the union support. Wisconsin for Falk - a union front group - has already spent more than $1.6 million on air time to run TV commercials backing her campaign....This should be interesting, with the 2 Democrats attacking each other and using up their funds for the next 4+ weeks, then pivoting to try to defeat Walker one month later. Walker obviously has been fighting to keep his job and will continue to fight while Barrett and Falk (and Vinehout and La Follette) concentrate on the primary.
UPDATE AT 5:05: Friends of Scott Walker comes out immediately with an anti-Tom Barrett ad:
A federal judge strikes down parts of Wisconsin budget repair law.
The Milwaukee Journal Sentinel reports:
The court side with state officials in upholding limitations on what can be bargained, but found the two other provisions violated the union members' First Amendment rights, considering that the same rules did not apply to unions for public safety workers such as police and firefighters.ADDED: Here's a PDF of the opinion. First, the court upholds the collective bargaining restrictions:
"So long as the State of Wisconsin continues to afford ordinary certification and dues deductions to mandatory public safety unions with sweeping bargaining rights, there is no rational basis to deny those rights to voluntary general unions with severely restricted bargaining rights," wrote U.S. District Judge William M. Conley....
The state's justification for allowing greater bargaining by public safety workers - avoidance of strikes - does not stand up as a rational basis for requiring other public worker unions to annually recertify by absolute majority, and denying them automatic dues deductions, the court said....
There is no dispute that a state may bar its public employees from engaging in any form of collective bargaining. The only question is whether a state may restrict the collective bargaining rights to one category of public unions while allowing full rights to another category. The answer to that question is surely “yes,” provided the classifications do not involve a suspect class and a rational basis exists for a state’s line drawing. Here, there is no suspect class involved and plaintiffs have failed to present sufficient evidence that exempting public safety employees from the new, expansive restrictions on collective bargaining bears no rational relationship to a legitimate government interest in avoiding strikes of those employees...
While the court concludes that the carving out of public safety employees under the Act is rationally-related to a legitimate government interest in avoiding disruptions by those employees, at least facially, it cannot wholly discount evidence that the line-drawing between public safety employees and general employees was influenced (or perhaps even dictated) by whether the unions representing these employees supported Governor Walker’s gubernatorial campaign....But the line between public safety employees and other public employs is not supported by a rational basis when it comes to the different treatment with respect to annual recertification:
This is not an ordinary case in any number of respects, but it is ordinary in the sense that political favoritism is no grounds for heightened scrutiny under the Equal Protection clause. Indeed, cases finding the true reason for legislation is pure animus directed at a particular group -- which cannot form the basis of a legitimate government interest -- typically involve powerless groups, like “hippies” in or gay and lesbian citizens of Colorado in Romer. Act 10 may cripple unions representing general employees, but these unions and its members are certainly not a powerless class.
Even assuming the lack of an adequate rationale for distinguishing between public safety and general employee unions, the Equal Protection Clause does not require that a state institute changes wholesale. As discussed, the State of Wisconsin could have eliminated all rights of public employees to unionize. That it chose to implement changes piecemeal, for one class of public unions at this time, while neglecting others, is not a constitutional violation. “The prohibition of the Equal Protection Clause goes no further than invidious discrimination.” Williamson v. Lee Optical of Okla., 348 U.S. 483, 489 (1955).
[T]he court finds this onerous recertification provision would typically pass the admittedly low bar of rational basis review, but for defendants’ failure to articulate and this court’s inability to posit, how an annual, absolute majority vote by a wholly-voluntary union could rationally advance a reasonable purpose...As for and the withholding union dues, the court said there was no rational basis for treating this 2 different groups of state workers differently.Because unions speak for workers, the court thought that the state's failure to collect dues for the unions presented a First Amendment free-speech issue where the 2 different classes of unions were treated differently.
Act 10 expressly exempts public safety employees from the prohibition, representing “a governmental ‘attempt to give one side of a debatable public question an advantage in expressing its views to the people.’”The court thought that the governor and legislature were essentially subsidizing the speech that favored them and making it harder for voices on the other side to collect the money that they could use against them. The court saw "apparent, if not actual, favoritism and entanglement in partisan politics by discriminating in favor of fundraising efforts on behalf of public safety unions over general employee unions."
Retweet the Right Thing.
Next time Spike "Do The Right Thing" Lee does racial politics on Twitter, perhaps he'll be a little more more circumspect. He was certainly clever to settle quickly with that elderly couple who fell victim to his impetuousness:
Meanwhile, the street address of the parents of the real George Zimmerman is out there. Roseanne Barr retweeted it, then took it down — because she was criticized. She said that that at first she thought it “was good to let ppl know that no one can hide anymore.” Since she needs to be popular and she got some pushback, she stepped back and tweeted as if she'd reached a higher level of morality: “But vigilante-ism is what killed Trayvon. I don’t support that.” But she kept her moral understanding fuzzy: “If Zimmerman isn’t arrested I’ll rt his address again... maybe go 2 his house myself.”
Elaine and David McClain are in their 70s and say they have a son named William George Zimmerman, who lived in their Sanford area home in the mid-1990s. They say he is no relation to 28-year-old George Zimmerman, who killed 17-year-old Trayvon Martin on Feb. 26....Yeah, it was just a slip. He intended to send the lynch mob to the other George Zimmerman's house. Did he apologize for that? And what did the McClain's get out of Lee other than an apology? Did he buy them a new house at a new address? What's the market value of their old house, now that the address is out there in digital-vigilante-o-sphere?
“At this point in time, we have come to an agreement with Spike Lee and his attorneys, and at this point, the matter is fully resolved,” Morgan said. “Spike has agreed to compensate the McClains for their loss and for the disruption into their lives. He’s taken full responsibility.”....
“He was really kind,” Elaine McClain said. “And when he called us, you could just tell he really felt bad about it. And it was just a slip, and I just know that he really, really has been concerned.”
Meanwhile, the street address of the parents of the real George Zimmerman is out there. Roseanne Barr retweeted it, then took it down — because she was criticized. She said that that at first she thought it “was good to let ppl know that no one can hide anymore.” Since she needs to be popular and she got some pushback, she stepped back and tweeted as if she'd reached a higher level of morality: “But vigilante-ism is what killed Trayvon. I don’t support that.” But she kept her moral understanding fuzzy: “If Zimmerman isn’t arrested I’ll rt his address again... maybe go 2 his house myself.”
Adam Liptak — at the NYT — says the SG tried to appeal to Justice Kennedy's idea of liberty.
Liptak refers to the way the Solicitor General, Donald B. Verrilli Jr., ended his argument by connecting the health care law to liberty:
Liptak points to the oral argument transcript where Justice Kennedy asked the SG to "identify for us some limits on the commerce clause?"
As long as Liptak brought up abortion. Imagine if the government claimed it was furthering liberty by requiring every pregnant woman to go forward and bear her child. Here's freedom for you: Take responsibility by doing what the majority has decided is responsible.
Or reverse that: Imagine the government deciding who was ready to bear a child and imposing a penalty on those who failed to have abortions... and imagine the government proclaiming that it was all in the name of liberty.
To say that no choice is choice. That compulsion is liberty. Freedom is slavery.
“There will be millions of people with chronic conditions like diabetes and heart disease... and as a result of the health care that they will get, they will be unshackled from the disabilities that those diseases put on them and have the opportunity to enjoy the blessings of liberty.”"Liberty" is a high abstraction. What is it about the liberty of compulsion to buy an expensive health insurance policy that Justice Kennedy is supposed to find appealing? Just because someone loves liberty doesn't mean they're going to love everything you slap a "liberty" label on!
Liptak points to the oral argument transcript where Justice Kennedy asked the SG to "identify for us some limits on the commerce clause?"
Those questions fit neatly within one strain of Justice Kennedy’s understanding of liberty, one he discussed at length last year in an opinion for a unanimous court.Obviously, that's exactly not the kind of liberty the SG was talking about.
Limiting federal power, he wrote, “protects the liberty of all persons within a state by ensuring that laws enacted in excess of delegated governmental power cannot direct or control their actions. By denying any one government complete jurisdiction over all the concerns of public life, federalism protects the liberty of the individual from arbitrary power. When government acts in excess of its lawful powers, that liberty is at stake.”
But there is another strain to Justice Kennedy’s conception of liberty, one that may help Mr. Verrilli. “When you think about liberty relative to Kennedy,” Professor [Helen J.] Knowles said, “the element most important to him will be the idea of individual responsibility. He thinks the government has the power to ensure that the responsible exercise of liberty be done in an educated manner."...Interesting and important quotes, but I don't see how they get us anywhere near connecting Kennedy's ideas about liberty to the policy of compelling the individual to take responsibility by requiring him to do one particular thing that the government has decided is the one thing that should be done.
As Ilya Shapiro wrote in The Harvard Journal of Law and Public Policy in 2010, “Justice Kennedy’s jurisprudence is a constant struggle to find the right balance between liberty and responsibility.”...
In 1992, joining with Justices Sandra Day O’Connor and David H. Souter to uphold the core of the constitutional right to abortion identified in Roe v. Wade, Justice Kennedy wrote by way of explanation that “at the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life."
As long as Liptak brought up abortion. Imagine if the government claimed it was furthering liberty by requiring every pregnant woman to go forward and bear her child. Here's freedom for you: Take responsibility by doing what the majority has decided is responsible.
Or reverse that: Imagine the government deciding who was ready to bear a child and imposing a penalty on those who failed to have abortions... and imagine the government proclaiming that it was all in the name of liberty.
To say that no choice is choice. That compulsion is liberty. Freedom is slavery.
What's with calling politicians — Romney... Obama... — "creepy"?
Scanning the news via iPhone while still lying in bed this morning — that's my habit, absurdly — I noticed someone was asserting that Romney is "creepy." I can't remember where I saw that, but no I'm seeing that Peggy Noonan is calling Obama "creepy." For what it's worth, by the dubious measure of Google hits, Obama (16,300,000) is much creepier than Romney (1,600,000).
This is the teaser from Drudge: "NOONAN: OBAMA BECOMING 'CREEPY'..." But what is she really talking about? She begins:
Not for me. I see Obama as somewhat ineffectual, and obviously he's failed to transform the American culture and bring us a new era of peace and unification that some of those of us who like him really hoped we could have.
I'd rather look to why we're supposed to find Romney unlikeable. I find Romney very likeable. It seems to be this meme: Romney is somehow devoid of human feeling. Where does that come from and why do conservatives submit to that defeating characterization? How about reframing the template? All those things about Romney that are supposed to be off-putting? Tell me why they are actually charming and loveable! I'm sick of these sadsack Republicans, always acting like they're the unpopular kids. That's not making you likeable. It's making you toxic. No one's going to want to sit at your lunch table. Now, comb your hair, stand up straight, put on some lipstick, and look in that mirror and say: I am beautiful.
This is the teaser from Drudge: "NOONAN: OBAMA BECOMING 'CREEPY'..." But what is she really talking about? She begins:
Something's happening to President Obama's relationship with those who are inclined not to like his policies. They are now inclined not to like him. His supporters would say, "Nothing new there," but actually I think there is. I'm referring to the broad, stable, nonradical, non-birther right. Among them the level of dislike for the president has ratcheted up sharply the past few months....She presents the evidence that we're letting go of this notion that we really, really like him. He's so likeable. This is conventional wisdom that supposedly keeps Republicans fettered. They're not supposed to criticize him personally. But there were always Obama opponents who wanted the restrained Obama opponents to break loose and take the chance of triggering the impulse to protect the charismatic politician that we've like so much, as a person. Does Peggy do the trick here?
Not for me. I see Obama as somewhat ineffectual, and obviously he's failed to transform the American culture and bring us a new era of peace and unification that some of those of us who like him really hoped we could have.
I'd rather look to why we're supposed to find Romney unlikeable. I find Romney very likeable. It seems to be this meme: Romney is somehow devoid of human feeling. Where does that come from and why do conservatives submit to that defeating characterization? How about reframing the template? All those things about Romney that are supposed to be off-putting? Tell me why they are actually charming and loveable! I'm sick of these sadsack Republicans, always acting like they're the unpopular kids. That's not making you likeable. It's making you toxic. No one's going to want to sit at your lunch table. Now, comb your hair, stand up straight, put on some lipstick, and look in that mirror and say: I am beautiful.
"J-Lo, can you scoot over a little bit?"
Telling Jennifer Lopez to move her sublime ass?
There really is only room for one female on the "American Idol" panel. Whenever they've squeezed in a second, they've wrecked the dynamic. Sorry to deal in stereotypes here, but the way the judges' panel has been structured since the first season, there's a woman, in the middle, performing a stereotypical female role. Paula Abdul pioneered this role, empathizing with everyone, speaking from the heart, and squealing special love for the boys. Paula got ousted, and other females had there time in the middle seat, but now they've got Jennifer, and Jennifer has far outstripped Paula. And I love Paula, but Jennifer is the queen.
She was low-key in her response to Nicki Minaj: "I don't know if there's enough room for both of us." A demure reference to her most famous body part, and a fully justified expression of intention to keep it firmly planted in the center seat.
There really is only room for one female on the "American Idol" panel. Whenever they've squeezed in a second, they've wrecked the dynamic. Sorry to deal in stereotypes here, but the way the judges' panel has been structured since the first season, there's a woman, in the middle, performing a stereotypical female role. Paula Abdul pioneered this role, empathizing with everyone, speaking from the heart, and squealing special love for the boys. Paula got ousted, and other females had there time in the middle seat, but now they've got Jennifer, and Jennifer has far outstripped Paula. And I love Paula, but Jennifer is the queen.
She was low-key in her response to Nicki Minaj: "I don't know if there's enough room for both of us." A demure reference to her most famous body part, and a fully justified expression of intention to keep it firmly planted in the center seat.
"I feel like throwing up when I hear it. No, I shouldn't say that. No, actually, I do feel like throwing up."
"I wish I could say, 'Oh listen, everybody! It's the Celine Dion song!' But I don't. I just have to sit there, you know, kind of straight-faced with a massive internal eye roll."
Kate Winslet experiences seasickness on the Titanic... song.
Kate Winslet experiences seasickness on the Titanic... song.
"Trayvon Martin was not innocent. He was guilty of being black in presumably restricted public space."
Writes Melissa Harris-Perry in The Nation:
But he can't possibly be sad about racism in American, injustice, or the death of Trayvon Martin. He's 3 years old!
He's probably sad because he's been dragged to a protest and made to stand around, holding a sign, at knee level to a lot of adults who are angry about something he can't understand. Who knows the ways in which a 3-year-old absorbs the emotions of the adults who surround him? Does he even know he's black, and if he does, does that have meaning for him? What meaning is he learning — that he's guilty of being black?
For decades, Jim Crow laws made this crime statutory. They codified the spaces into which black bodies could not pass without encountering legal punishment. They made public blackness a punishable offense. The 1964 Civil Rights Act removed the legal barriers but not the social sanctions and potentially violent consequences of this “crime.” George Zimmerman’s slaying of Trayvon Martin — and the subsequent campaign to smear Martin — is the latest and most jarring reminder that it is often impossible for a black body to be innocent.This is the left-wing presentation of the case. All I want to talk about here is the photograph The Nation has used to illustrate this item. We see a 3-year-old child, a boy who happens to be black. He's been dressed in a black hoodie — the item of clothing Martin was wearing when he died — and given a sign to hold. The sign has a picture of a bag of Skittles — the candy the 17-year-old Martin had in his possession when he was shot — and the words Justice 4 Trayvon Martin. The child's eyes are downcast. He looks terribly sad.
But he can't possibly be sad about racism in American, injustice, or the death of Trayvon Martin. He's 3 years old!
He's probably sad because he's been dragged to a protest and made to stand around, holding a sign, at knee level to a lot of adults who are angry about something he can't understand. Who knows the ways in which a 3-year-old absorbs the emotions of the adults who surround him? Does he even know he's black, and if he does, does that have meaning for him? What meaning is he learning — that he's guilty of being black?
Paul Ryan endorses Romney.
The Wisconsin congressman embraces the frontrunner on the eve of the Wisconsin primary.
This, just days after the endorsement from Congress's other biggest GOP star: Marco Rubio.
This, just days after the endorsement from Congress's other biggest GOP star: Marco Rubio.
"You return force with force when somebody assaults you. George was out of breath, he was barely conscious."
"There would have been George dead if he had not acted decisively and instantaneously in that moment when he was being disarmed."
Zimmerman's brother speaks:
Quoted in the linked article, at CNN.com, is Marcia Clark, the prosecutor who failed to convince a jury that O.J. Simpson was guilty. She's talking about the photographs of George Zimmerman, which people on the web are saying prove he didn't have a broken nose.
Suddenly, everyone's a doctor, the kind of doctor that does diagnoses through blurry web videos. Flashback: Remember when Senator Bill Frist — a Harvard-trained doctor — questioned the diagnosis of Terri Schiavo "based on a review of the video footage which I spent an hour or so looking at last night in my office"? He got slammed for that.
But here's Marcia Clark: "Anyone who's seen a broken nose is aware of the fact that the blood spurts. That leads to a lot of bleeding. You would have expected to see blood on the front of George Zimmerman's shirt collar. Blood — you know, in many more places."
Anyone knows. Of course, a broken nose is a veritable geyser. So says the expert on blood evidence. I know she's seen a lot of blood. Blood does gush from slashed throats. But a broken nose? I'm going to Google that. Here's a list of symptoms, according the Mayo Clinic website (boldface added):
For a prosecutor to make extreme and overconfident statements about evidence, when the statements are not even remotely accurate and the inaccuracy is detected through 5 seconds of Googling? I understand why people want to lie and deceive, but to throw away your credibility so carelessly?
Zimmerman's brother speaks:
Quoted in the linked article, at CNN.com, is Marcia Clark, the prosecutor who failed to convince a jury that O.J. Simpson was guilty. She's talking about the photographs of George Zimmerman, which people on the web are saying prove he didn't have a broken nose.
Suddenly, everyone's a doctor, the kind of doctor that does diagnoses through blurry web videos. Flashback: Remember when Senator Bill Frist — a Harvard-trained doctor — questioned the diagnosis of Terri Schiavo "based on a review of the video footage which I spent an hour or so looking at last night in my office"? He got slammed for that.
But here's Marcia Clark: "Anyone who's seen a broken nose is aware of the fact that the blood spurts. That leads to a lot of bleeding. You would have expected to see blood on the front of George Zimmerman's shirt collar. Blood — you know, in many more places."
Anyone knows. Of course, a broken nose is a veritable geyser. So says the expert on blood evidence. I know she's seen a lot of blood. Blood does gush from slashed throats. But a broken nose? I'm going to Google that. Here's a list of symptoms, according the Mayo Clinic website (boldface added):
Signs and symptoms of a broken nose may appear immediately or may take up to three days to develop. Signs and symptoms may include:I am trying to fathom the depths of mendacity around the Trayvon Martin case. Why aren't people afraid of uttering statements that are so easily devastated?
Pain or tenderness, especially when touching your nose
Swelling of your nose and surrounding areas
Bleeding from your nose
Bruising around your nose or eyes
Crooked or misshapen nose
Difficulty breathing through your nose
Discharge of mucus from your nose (rhinorrhea)
Feeling that one or both of your nasal passages are blocked
For a prosecutor to make extreme and overconfident statements about evidence, when the statements are not even remotely accurate and the inaccuracy is detected through 5 seconds of Googling? I understand why people want to lie and deceive, but to throw away your credibility so carelessly?
Thursday, March 29, 2012
Huge crowd at the Ron Paul rally this evening.
We were in the "backstage" area. Note how many people are on the other side, including on the roof. And way up over there:
I have some video too. I need to edit some high spots. The crowd was very responsive, even chanting "end the fed." No heckling. No indication that there were any fans of big government anywhere in the vicinity. Abolish the income tax... cheers! More than once, they booed Woodrow Wilson.
ADDED: Here's the Milwaukee Journal Sentinel article about the rally:
Paul told the thousands gathered at a "town hall meeting" at the Memorial Union Terrace that he is often asked why young people are interested in him.
"One reason - they're getting a bad deal," he said, citing the debt they are inheriting from past spending decisions.
Sarah Palin weighs in on the Scott Walker recall election.
At her Facebook page:
I look at the far Left’s assault on Wisconsin and I say, “Are you kidding?” As an outsider (albeit an admitted Green Bay fan with family roots in Chippewa Falls), I join millions of Americans watching the political shenanigans in Wisconsin. I am torn between just chuckling at these radical liberal yahoos trying to oust an intelligent administration that is fulfilling its promises, or raising a fist in disgust at people sitting on their thumbs while Governor Walker and Lt. Governor Kleefisch get thrown to the wolves....
Ron Paul speaks at the UW tonight, on the Union Terrace, at 7.
It looks to be a huge event. It will be interesting to see how the people of Madison react to the iconic libertarian.
"Tony Scalia's Retirement Has Started Early."
Says Charles P. Pierce on the Esquire website.
Calling a man of Italian ancestry "Tony" when that isn't his nickname? Isn't that on the level of calling a Latino "Jose" or a black man "Leroy" (or some such stereotypical name)?
Of course, quite aside from that, the blog post is bilge:
Here's the portion of the severability argument — transcript PDF — where Scalia talks about the Cornhusker Kickback:
Maybe there should be a constitutional rule like the one Scalia hypothesizes. That is a quick attack on the political process that produced the bill, but it's actually not irrelevant to the question of severability, because there's a question about deferring to democratic decisionmaking, and that deference is less justified when the process itself is dysfunctional democracy. But the function of the Cornhusker kickback in the hypothetical is mainly, simply, that one provision of a big statute has been stricken down.
Calling a man of Italian ancestry "Tony" when that isn't his nickname? Isn't that on the level of calling a Latino "Jose" or a black man "Leroy" (or some such stereotypical name)?
Of course, quite aside from that, the blog post is bilge:
I think Justice Antonin Scalia isn't even really trying any more. It's been clear for some time now that he's short-timing his job on the Supreme Court. The job bores him.... he's now bringing Not Giving A Fuck to an almost operatic level.Opera... see? That's like talking about a black person and throwing in watermelon.
His "originalism" was always a shuck, even if it was consistent, which it rarely was, and even if it was principled, which it never was.... But at least, for a while, he actually tried to act like a judge in a democratic republic, and not the lost Medici pope.Pope? More anti-Italian (and anti-Catholic) stereotyping crap, which Pierce probably thinks is just fine, indeed hilarious, because it's against a conservative.
It is plain now that Scalia simply doesn't like the Affordable Care Act on its face.... He doesn't think that the people who would benefit from the law deserve to have a law that benefits them. On Tuesday, he pursued the absurd "broccoli" analogy... And today, apparently, he ran through every twist and turn in the act's baroque political history in an attempt to discredit the law politically, rather than as a challenge to its constitutionality. (What in hell does the "Cornhusker Kickback" — yet another term of art that the Justice borrowed from the AM radio dial — have to do with the severability argument? Is Scalia seriously making the case that a banal political compromise within the negotiations from which bill eventually is produced can affect its ultimate constitutionality? Good luck ever getting anything passed if that's the standard.)Pierce just doesn't understand what the Cornhusker Kickback has to do with the severability argument. He smears Scalia, but he doesn't do the basic work of fathoming the argument. He denounces without earning the right to denounce, and instead of saying anything of any value about law he flips out over into the ethnic insults.
Here's the portion of the severability argument — transcript PDF — where Scalia talks about the Cornhusker Kickback:
JUSTICE SCALIA: All right. The consequence of your proposition, would Congress have enacted it without this provision....That is, Paul Clement's argument — attacking the statute — is that the test of what is severable — what will fall along with the unconstitutional provision — is whatever Congress would pass if it were asked to vote on the bill with the unconstitutional provision extracted.
That would mean that if we struck down nothing in this legislation but the -- what's it called, the Cornhusker kickback, okay, we find that to violate the constitutional proscription of venality, okay? (Laughter.)He's stating a hypothetical: What if the only thing removed were that one provision, the Cornhusker kickback? For the purposes of the hypothetical, he made up a fictional constitutional ground that it is held to violate — a constitutional rule against a purely venal law. ("Venality is a vice associated with being bribeable or of selling one's services or power, especially when one should act justly instead.") We know that the Cornhusker kickback — AKA the Nebraska Compromise — was a deal made by Harry Reid to get the vote of Senator Ben Nelson, the last hold-out among the Democrats. The state of Nebraska got 100% funding for Medicaid, unlike all the other states, so that extra funding to Nebraska approaches vote-buying.
Maybe there should be a constitutional rule like the one Scalia hypothesizes. That is a quick attack on the political process that produced the bill, but it's actually not irrelevant to the question of severability, because there's a question about deferring to democratic decisionmaking, and that deference is less justified when the process itself is dysfunctional democracy. But the function of the Cornhusker kickback in the hypothetical is mainly, simply, that one provision of a big statute has been stricken down.
JUSTICE SCALIA: When we strike that down, it's clear that Congress would not have passed it without that. It was the means of getting the last necessary vote in the Senate. And you are telling us that the whole statute would fall because the Cornhusker kickback is bad. That can't be right.So Justice Scalia has landed a brutal attack on Clement's theory of severability at that point. The hypothetical was knife-sharp and brilliant. But Pierce can't even understand it — or lies about his incapacity.
MR. CLEMENT: Well, Justice Scalia, I think it can be, which is the basic proposition, that it's congressional intent that governs. Now everybody on this Court has a slightly different way of divining legislative intent. And I would suggest the one common ground among every member of this Court, as I understand it, is you start with the text. Everybody can agree with that.So Clement readjusts and begins to articulate a text-based approach to severability, which he knows is more what Scalia wants, but he craftily preserves the other theory, which he knows some of the other Justices might prefer.
"An’ for every hung-up person in the whole wide universe... we gazed upon the chimes of freedom flashing..."
One more Bob Dylan quote... one more post about freedom...
... because I just asked Meade what his favorite Bob Dylan song was, and he hadn't read my theme-of-the-day freedom posts yet, but he said "Chimes of Freedom".
I could expatiate about the connection to freedom, but I'll just say it simply: It's Meade's birthday. We're not big on special occasions. We love normal, everyday life. It's hard to stop and say something distinctive about a birthday, when every day is a beautiful gift.
... because I just asked Meade what his favorite Bob Dylan song was, and he hadn't read my theme-of-the-day freedom posts yet, but he said "Chimes of Freedom".
I could expatiate about the connection to freedom, but I'll just say it simply: It's Meade's birthday. We're not big on special occasions. We love normal, everyday life. It's hard to stop and say something distinctive about a birthday, when every day is a beautiful gift.
Striking for the gentle, striking for the kind
Striking for the guardians and protectors of the mind
Goodbye to Adrienne Rich and Earl Scruggs.
She was 82. He was 88. Famous people die in 3s — it has been noted — but who could complete the triad that begins with Rich and Scruggs?
He was the ultimate banjo player...
That's what poured into our ears back in the 60s, lubricated by banjo music. Adrienne Rich got her cultural foothold in the 60s:
I'm sure it was all about freedom, but I'm free of that now. Since I'm quoting Bob Dylan today:
He was the ultimate banjo player...
... best known for performing alongside the guitar-playing Lester Flatt with the Foggy Mountain Boys. Among their signature songs were “Foggy Mountain Breakdown,” which was used as the getaway music in the 1967 film “Bonnie and Clyde,” and “The Ballad of Jed Clampett,” the theme song of the 1960s television sitcom “The Beverly Hillbillies.”For TV and movie watchers of the 60s, this was the sound of freedom — Jed moves away from there, there being wherever it was that the poor mountaineer "lived," and Bonnie, she follows Clyde, who said to her:
You're different.... You know, you're like me. You want different things. You got somethin' better than bein' a waitress. You and me travelin' together, we could cut a path clean across this state and Kansas and Missouri and Oklahoma and everybody'd know about it. You listen to me, Miss Bonnie Parker. You listen to me.And later, she says: "You know what, when we started out, I thought we was really goin' somewhere. This is it. We're just goin', huh?"
That's what poured into our ears back in the 60s, lubricated by banjo music. Adrienne Rich got her cultural foothold in the 60s:
Once mastered, poetry’s formalist rigors gave Ms. Rich something to rebel against, and by her third collection, “Snapshots of a Daughter-in-Law,” published by Harper & Row, she had pretty well exploded them. That volume appeared in 1963, a watershed moment in women’s letters: “The Feminine Mystique” was also published that year.
In the collection’s title poem, Ms. Rich chronicles the pulverizing onus of traditional married life.....I'm going to pulverize your onus, baby. The funny thing though: Rich was a lesbian. And yet she married a man:
In 1953 Ms. Rich had married a Harvard economist, Alfred Haskell Conrad, and by the time she was 30 she was the mother of three small boys....I think I once bought one of her books. It seemed like something in the spirit of the times that one should partake of, but I never read it. I find most poetry annoying, and hers was no exception. I did read that essay "Compulsory Heterosexuality and Lesbian Existence," which all the radical feminists were taking terribly seriously circa 1990. It was the assigned text in one of the law school radical feminist reading groups I participated back in those days. There were all these earnest, intelligent, heterosexual women who studied that text and gabbed about it until they genuinely got their minds around the amazing realization that they should not be heterosexual. Not that they should be having sex with women, but in some other, conceptual way. I'd tell you what the concept was but my mind is not longer around that particular realization, and I don't have the time right now to redo all that hard intellectual work that I did amongst the feminists in 1990/1991.
By 1970, partly because she had begun, inwardly, to acknowledge her erotic love of women, Ms. Rich and her husband had grown estranged. That autumn, he died of a gunshot wound to the head; the death was ruled a suicide. To the end of her life, Ms. Rich rarely spoke of it.
I'm sure it was all about freedom, but I'm free of that now. Since I'm quoting Bob Dylan today:
A self-ordained professor’s tongue
Too serious to fool
Spouted out that liberty
Is just equality in school
“Equality,” I spoke the word
As if a wedding vow
Ah, but I was so much older then
I’m younger than that now
There's a human rights complaint against Earls Albino Rhino beer.
"Ikponwosa (I.K.) Ero of Vancouver has alleged to the B.C. Human Rights Tribunal that the name singles out people like her who suffer from albinism, the absence of pigment from the skin, hair and eyes."
That reminds me, at the Supreme Court oral argument yesterday, the Solicitor General ended his woeful week by talking about freedom: With all the new compulsions and coercions of Obamacare, "millions of people with chronic conditions like diabetes and heart disease... will be unshackled from the disabilities that those diseases put on them and have the opportunity to enjoy the blessings of liberty."
In the words of Bob Zimmerman:
It's a medical condition, not a taste treat, Ero argues.And how does it work, that you go from believing a product is poorly named to believing human rights are violated
"You go into a restaurant and someone says, 'Can I get a palsy? Give me a palsy,'" she said. "And what it stands for is a cerebral palsy cocktail. I don't think that would fly well at all with anybody with cerebral palsy, or their families, who have to live with the condition.
"So how does it work, in [the case of albinism] that you can market food with a medical condition?"
Ero, who was born in Nigeria, said in her complaint that in Africa ablinos [sic] are often targeted for ritualistic murder.... The threat of persecution was one of the reasons she and her family fled to Canada when she was a teenager.You came to Canada for liberty and you became an agent of repression. But that's your idea of liberty, controlling others.
That reminds me, at the Supreme Court oral argument yesterday, the Solicitor General ended his woeful week by talking about freedom: With all the new compulsions and coercions of Obamacare, "millions of people with chronic conditions like diabetes and heart disease... will be unshackled from the disabilities that those diseases put on them and have the opportunity to enjoy the blessings of liberty."
In the words of Bob Zimmerman:
Ah, my friends from the prison, they ask unto meIn the words of the U.S. Supreme Court Justice Kennedy — who will decide the Obamacare case singlehandedly, as the pundits tell it, but who wrote this along with Justices O'Connor and Souter:
“How good, how good does it feel to be free?”
And I answer them most mysteriously
“Are birds free from the chains of the skyway?”
At the heart of liberty is the right to define one's own concept of existence, of meaning, of the universe, and of the mystery of human life.Raise a glass of Earls Albino Rhino to liberty!
Wednesday, March 28, 2012
Time-shifted live-blogging of this morning's Obamacare oral argument in the U.S. Supreme Court.
I've finally got time to curl up with a nice MP3 and transcript. I'm going to treat this like a live-blog, with frequent updates until I get to the end.
UPDATE 1: Paul Clement will attack the expansion of Medicaid. He's talking about whether it's "coercive," because if it is, it won't fit the Spending Power. Justice Kagan wants to know why a "big gift from the Federal Government" is coercion. "The Federal Government is here saying, we are giving you a boatload of money." Page 3. Just a big old boatload of money is coercive, Clement says confidently. But the actual bill has a "very big condition." Kagan interrupts, trying to make her point that a big boatload of money is not coercive. What if someone offered you a job and would pay you $10 million a year. Of course, you say yes, but you're not coerced are you? Clement lays down one of the cleverest teasers I have ever heard: "Well, I guess I would want to know where the money came from."
"Wow. Wow." says Kagan. Has a Supreme Court ever said "Wow. Wow" before? She can't believe you'd do anything other than snap up that money. "I'm offering you $10 million a year to come work for me, and you are saying that this is anything but a great choice?"
Clement springs his trap: "Sure, if I told you, actually, it came from my own bank account."
Kagan resists. Yes, it's tax money, but the tax money the federal government rakes in is from the taxpayers "acting as" U.S. citizens. It's not the state's money. Their money is the money that's collected from citizens "acting as" citizens of a particular state. Clement re-grounds us "in the real world." People only have so much money, and the more the feds drain out of the people, the less there is for the states to tap into. The point is this "boatload of money" isn't free money. It's money that was taken from the people of the state and then offered back to the state governments, who might have liked to take money directly from their citizens, available to be used for whatever purposes the states have in mind, and not the things the federal government tells them to do.
UPDATE 2: Clement argues that there must be some limit on the Spending Power, on how extreme the "big gifts" — with conditions attached — can be, because "this Court's entire spending power jurisprudence is premised on the notion that spending power is different, and that Congress can do things pursuant to the spending power that it can't do pursuant to its other enumerated powers precisely because the programs are voluntary." Clement has a very difficult argument to make. The states have been taking this money for a long time, and there have been periodic expansions, and the states are told "take it or leave it" (as Ginsburg puts it). He needs to argue that somehow this new expansion is creating something separate and inappropriately connecting it to old money streams from the federal government to the state, which makes it very hard for the state to say no. But it's the fed's money, and they're setting the terms the states have to meet to keep the old income streams flowing.
UPDATE 3: Justice Breyer takes great pains to show that the government might not exercise its option to close up all those old income streams, because it is always under the obligation to act "reasonably." Finally, Justice Scalia breaks in: "Mr. Clement... do you agree -- do you agree that the government has to act reasonably? Do we strike down unreasonable statutes? My God!" With that prompting, I see that it sounds like Justice Breyer was assuring us that we are living in the Lochner Era, when courts assessed the reasonableness of legislation. There's an intense disagreement here, with Breyer talking about the executive branch implementing statutes, which must be reasonable, and Clement and Scalia talking about what is in the statute, which will not be tested for reasonableness.
UPDATE 4: We finally hear from Justice Kennedy, at page 35: "If the inevitable consequence of your position was that the Federal Government could just do this on its own, the Federal Government could have Medicaid, Medicare, and these insurance regulations, assume that's true, then how are the interests of federalism concerned? How are the interests of federalism concerned if, in Florida or Texas or some of the other objecting States, there are huge Federal bureaucracies doing what this bill allows the State bureaucracies to do?"
Clement hits Kennedy with a word Kennedy has used himself in federalism cases. (For example, United States v. Lopez.) The word is "accountability." Clement says: "If the Federal Government decides to spend money through Federal instrumentalities, and the citizen is hacked off about it, they can bring a Federal complaint to a Federal official working in a Federal agency."
(Here's Kennedy in Lopez: "The theory that two governments accord more liberty than one requires for its realization two distinct and discernable lines of political accountability: one between the citizens and the Federal Government; the second between the citizens and the States. If, as Madison expected, the federal and state governments are to control each other, see The Federalist No. 51, and hold each other in check by competing for the affections of the people, see The Federalist No. 46, those citizens must have some means of knowing which of the two governments to hold accountable for the failure to perform a given function. 'Federalism serves to assign political responsibility, not to obscure it.'... Were the Federal Government to take over the regulation of entire areas of traditional state concern, areas having nothing to do with the regulation of commercial activities, the boundaries between the spheres of federal and state authority would blur and political responsibility would become illusory.... The resultant inability to hold either branch of the government answerable to the citizens is more dangerous even than devolving too much authority to the remote central power.")
UPDATE 5: The SG says that Congress, setting up this conditional spending program, jumped through all the doctrinal hoops set up in South Dakota v. Dole, but I note that South Dakota v. Dole did say that at some point federal spending amounts to coercion. (It said: "Our decisions have recognized that in some circumstances the financial inducement offered by Congress might be so coercive as to pass the point at which 'pressure turns into compulsion.' Steward Machine Co. v. Davis...") And Justice Scalia, alluding to that language, asks what it means. What is this "coercion" limitation?
The SG says that "it's possible to envision a situation in which there's coercion." Hmm. Yeah. But tell us what that situation is?! This is like yesterday, when the SG was asked to state the limit on the Commerce Power, and he just couldn't do it. Now, the SG refers to a condition that fundamentally transforms the structure of the state government, but that refers to a kind of condition, not what would entice/coerce the state into accepting the condition. The Chief Justice points that out: You're not talking about the coercion question. What if the federal government had a condition that you could take or leave, but you'd lose all your federal funding? The SG says "that would raise a germaneness issue," which is a reference to one of the doctrinal hoops in Dole (the condition must relate to the spending program), but the coercion idea is separate — and surely the SG knows that. Getting the doctrinal points of Dole straight is first year law school stuff. It's like he's playing dumb. It's really annoying, and the Chief Justice is annoyed.
UPDATE 6: The SG persists in saying that it's hard to imagine a situation in which the condition would not violate the germaneness requirement by the time it got coercive. Roberts and Scalia scuffle with him and suddenly Alito comes to the rescue with a great hypothetical:
That's a dramatic statement, and the SG only natters away about how there are political constraints on Congress. That is, there's nothing left of judicially enforceable federalism, but we've still got the supposed political safeguards of federalism (i.e., the way Congress will, on its own, restrain itself from too much imposition on the states). This is the SG's theme throughout the arguments this week: It is sufficient to let Congress do whatever it wants.
UPDATE 7: There's a long section of debate about whether the Secretary will use her discretion to cut the states off from all their funds (and whether there's a judicially enforceable limit on that discretion). Suddenly, Justice Kennedy breaks in, and he's using his buzzword again: accountability!
UPDATE 8: Quite a bit later, Justice Sotomayor endeavors to bring the SG back to Justice Kennedy's accountability theme, but not in a particularly coherent way: "Justice Kennedy asked you whether... it's coercion if no one can be politically accountable. I'm not sure how that could be practically politically accountable because almost every gift -- if the terms are attractive, it would be an un -- unattractive political alternative to turn it down." I think she means political accountability must necessarily be a separate question from coercion. The point is these tremendously enticing offers destroy the state's will to say no. They're not coerced, but they lose their independent political identity, and that is destructive to federalism.
UPDATE 9: The SG talks about liberty: "millions of people with chronic conditions like diabetes and heart disease, and as a result of the health care... they will be unshackled from the disabilities that those diseases put on them and have the opportunity to enjoy the blessings of liberty." There's freedom inside all this compulsion and coercion, because when the government supplies your needs, then you can enjoy life. That's the argument!
UPDATE 10: Clement, back in rebuttal, riffs on the SG's liberty remarks: "[I]t's a very funny conception of liberty that forces somebody to purchase an insurance policy whether they want it or not. And it's a very strange conception of federalism that says that we can simply give the States an offer that they can't refuse, and through the spending power which is premised on the notion that Congress can do more because it's voluntary, we can force the States to do whatever we tell them to."
UPDATE 11: There's still another hour! This is the severability part. Clement is up first, arguing that if the individual mandate is stricken down, but the guaranteed-issue and community-rating don't fall along with it, then insurance premiums will "skyrocket."
UPDATE 12: Is the test what Congress would have wanted (whether it would want the whole act to fall if one provision falls)? Scalia suggests that's the wrong approach. The severability question is difficult, as the Court struggles with the sprawling legislation. Clement says there's a "heart" to it, which includes the individual mandate, and the provisions interrelated with it, which will not work the same way without it, and these must fall. Then there's all that peripheral stuff, which could work independently, but Clement calls these things the "hollow shell" of the act, which should fall because they wouldn't have been passed without the rest of the bill. It could also be left standing, he concedes. Everyone seems agitated by the prospect of tearing it all down.
[THERE'S MORE TO COME, but I can't get to it tonight. It's just too onerous for now. ]
UPDATE 1: Paul Clement will attack the expansion of Medicaid. He's talking about whether it's "coercive," because if it is, it won't fit the Spending Power. Justice Kagan wants to know why a "big gift from the Federal Government" is coercion. "The Federal Government is here saying, we are giving you a boatload of money." Page 3. Just a big old boatload of money is coercive, Clement says confidently. But the actual bill has a "very big condition." Kagan interrupts, trying to make her point that a big boatload of money is not coercive. What if someone offered you a job and would pay you $10 million a year. Of course, you say yes, but you're not coerced are you? Clement lays down one of the cleverest teasers I have ever heard: "Well, I guess I would want to know where the money came from."
"Wow. Wow." says Kagan. Has a Supreme Court ever said "Wow. Wow" before? She can't believe you'd do anything other than snap up that money. "I'm offering you $10 million a year to come work for me, and you are saying that this is anything but a great choice?"
Clement springs his trap: "Sure, if I told you, actually, it came from my own bank account."
Kagan resists. Yes, it's tax money, but the tax money the federal government rakes in is from the taxpayers "acting as" U.S. citizens. It's not the state's money. Their money is the money that's collected from citizens "acting as" citizens of a particular state. Clement re-grounds us "in the real world." People only have so much money, and the more the feds drain out of the people, the less there is for the states to tap into. The point is this "boatload of money" isn't free money. It's money that was taken from the people of the state and then offered back to the state governments, who might have liked to take money directly from their citizens, available to be used for whatever purposes the states have in mind, and not the things the federal government tells them to do.
UPDATE 2: Clement argues that there must be some limit on the Spending Power, on how extreme the "big gifts" — with conditions attached — can be, because "this Court's entire spending power jurisprudence is premised on the notion that spending power is different, and that Congress can do things pursuant to the spending power that it can't do pursuant to its other enumerated powers precisely because the programs are voluntary." Clement has a very difficult argument to make. The states have been taking this money for a long time, and there have been periodic expansions, and the states are told "take it or leave it" (as Ginsburg puts it). He needs to argue that somehow this new expansion is creating something separate and inappropriately connecting it to old money streams from the federal government to the state, which makes it very hard for the state to say no. But it's the fed's money, and they're setting the terms the states have to meet to keep the old income streams flowing.
UPDATE 3: Justice Breyer takes great pains to show that the government might not exercise its option to close up all those old income streams, because it is always under the obligation to act "reasonably." Finally, Justice Scalia breaks in: "Mr. Clement... do you agree -- do you agree that the government has to act reasonably? Do we strike down unreasonable statutes? My God!" With that prompting, I see that it sounds like Justice Breyer was assuring us that we are living in the Lochner Era, when courts assessed the reasonableness of legislation. There's an intense disagreement here, with Breyer talking about the executive branch implementing statutes, which must be reasonable, and Clement and Scalia talking about what is in the statute, which will not be tested for reasonableness.
UPDATE 4: We finally hear from Justice Kennedy, at page 35: "If the inevitable consequence of your position was that the Federal Government could just do this on its own, the Federal Government could have Medicaid, Medicare, and these insurance regulations, assume that's true, then how are the interests of federalism concerned? How are the interests of federalism concerned if, in Florida or Texas or some of the other objecting States, there are huge Federal bureaucracies doing what this bill allows the State bureaucracies to do?"
Clement hits Kennedy with a word Kennedy has used himself in federalism cases. (For example, United States v. Lopez.) The word is "accountability." Clement says: "If the Federal Government decides to spend money through Federal instrumentalities, and the citizen is hacked off about it, they can bring a Federal complaint to a Federal official working in a Federal agency."
(Here's Kennedy in Lopez: "The theory that two governments accord more liberty than one requires for its realization two distinct and discernable lines of political accountability: one between the citizens and the Federal Government; the second between the citizens and the States. If, as Madison expected, the federal and state governments are to control each other, see The Federalist No. 51, and hold each other in check by competing for the affections of the people, see The Federalist No. 46, those citizens must have some means of knowing which of the two governments to hold accountable for the failure to perform a given function. 'Federalism serves to assign political responsibility, not to obscure it.'... Were the Federal Government to take over the regulation of entire areas of traditional state concern, areas having nothing to do with the regulation of commercial activities, the boundaries between the spheres of federal and state authority would blur and political responsibility would become illusory.... The resultant inability to hold either branch of the government answerable to the citizens is more dangerous even than devolving too much authority to the remote central power.")
UPDATE 5: The SG says that Congress, setting up this conditional spending program, jumped through all the doctrinal hoops set up in South Dakota v. Dole, but I note that South Dakota v. Dole did say that at some point federal spending amounts to coercion. (It said: "Our decisions have recognized that in some circumstances the financial inducement offered by Congress might be so coercive as to pass the point at which 'pressure turns into compulsion.' Steward Machine Co. v. Davis...") And Justice Scalia, alluding to that language, asks what it means. What is this "coercion" limitation?
The SG says that "it's possible to envision a situation in which there's coercion." Hmm. Yeah. But tell us what that situation is?! This is like yesterday, when the SG was asked to state the limit on the Commerce Power, and he just couldn't do it. Now, the SG refers to a condition that fundamentally transforms the structure of the state government, but that refers to a kind of condition, not what would entice/coerce the state into accepting the condition. The Chief Justice points that out: You're not talking about the coercion question. What if the federal government had a condition that you could take or leave, but you'd lose all your federal funding? The SG says "that would raise a germaneness issue," which is a reference to one of the doctrinal hoops in Dole (the condition must relate to the spending program), but the coercion idea is separate — and surely the SG knows that. Getting the doctrinal points of Dole straight is first year law school stuff. It's like he's playing dumb. It's really annoying, and the Chief Justice is annoyed.
UPDATE 6: The SG persists in saying that it's hard to imagine a situation in which the condition would not violate the germaneness requirement by the time it got coercive. Roberts and Scalia scuffle with him and suddenly Alito comes to the rescue with a great hypothetical:
Let's say Congress says this to the States: We have got great news for you. We know that your expenditures on education are a huge financial burden, so we are going to take that completely off your shoulders. We are going to impose a special Federal education tax which will raise exactly the same amount of money all of the states now spend on education, and then we are going to give you a grant that is equal to what you spent on education last year.The SG says no! The states have a choice, he says, to which Alito responds: "But if that's the case, then there's nothing left of federalism."
Now, this is a great offer and we think you will take it, but, of course, if you take it, it's going to have some conditions because we're going to set rules on teacher tenure, on collective bargaining, on
curriculum, on textbooks, class size, school calendar, and many other things. So, take it or leave it.
If you take it, you have to follow our rules on all of these things. If you leave it, well, then you're going to have... to tax your citizens, they're going to have to pay the Federal education tax; but on top of that, you're going to have to tax them for all of the money that you're now spending on education, plus all of the Federal funds that you were previously given.
Would that be -- would that reach the point -- would that be the point where financial inducement turns into coercion?
That's a dramatic statement, and the SG only natters away about how there are political constraints on Congress. That is, there's nothing left of judicially enforceable federalism, but we've still got the supposed political safeguards of federalism (i.e., the way Congress will, on its own, restrain itself from too much imposition on the states). This is the SG's theme throughout the arguments this week: It is sufficient to let Congress do whatever it wants.
UPDATE 7: There's a long section of debate about whether the Secretary will use her discretion to cut the states off from all their funds (and whether there's a judicially enforceable limit on that discretion). Suddenly, Justice Kennedy breaks in, and he's using his buzzword again: accountability!
I suppose one test could be -- I just don't see that it would be very workable - is whether or not [the loss of funding is] so big that accountability is lost, that it is not clear to the citizens that the State or the Federal Government is administering the program, even though it's a State administrator.See how that is the same idea he was using back in 1995 in Lopez? The SG blabbers in response (as if he's not too well versed in what moves Justice Kennedy, which you would think would be his primary concern). Kennedy comes back:
In your view -- in your view, does federalism require that there be a relatively clear line of accountability for political acts?That, my friends, is Essence of Kennedy! But the SG doesn't notice. He doesn't see how exquisitely special that question is. Kennedy puzzles on: "Is that subsumed in the coercion test, or is that an independent one?" Come on, SG! If you're good for anything, tell him it's special! Again, the SG natters, but the nattering contains nothing about political accountability. Kennedy pleads again for attention to his dearest concern:
But do you agree that there still is inherent and implicit in the idea of federalism, necessary to the idea of federalism, that there be a clear line of accountability so the citizen knows that it's the Federal or state government who should be held responsible for their program?... And does coercion relate to that, or is that a separate doctrine?Finally, the SG addresses accountability: It's the other side who are arguing that they take "unpalatable choices" because they are subjected to "a high degree of political accountability," which they're trying to call "coercion." That misses Kennedy's point. Kennedy wants the doctrine to work to make the different governments accountable to the people. He says: "Well, but I think the answer would be that the State wants to preserve its integrity, its identity, its responsibility in the Federal system."
UPDATE 8: Quite a bit later, Justice Sotomayor endeavors to bring the SG back to Justice Kennedy's accountability theme, but not in a particularly coherent way: "Justice Kennedy asked you whether... it's coercion if no one can be politically accountable. I'm not sure how that could be practically politically accountable because almost every gift -- if the terms are attractive, it would be an un -- unattractive political alternative to turn it down." I think she means political accountability must necessarily be a separate question from coercion. The point is these tremendously enticing offers destroy the state's will to say no. They're not coerced, but they lose their independent political identity, and that is destructive to federalism.
UPDATE 9: The SG talks about liberty: "millions of people with chronic conditions like diabetes and heart disease, and as a result of the health care... they will be unshackled from the disabilities that those diseases put on them and have the opportunity to enjoy the blessings of liberty." There's freedom inside all this compulsion and coercion, because when the government supplies your needs, then you can enjoy life. That's the argument!
UPDATE 10: Clement, back in rebuttal, riffs on the SG's liberty remarks: "[I]t's a very funny conception of liberty that forces somebody to purchase an insurance policy whether they want it or not. And it's a very strange conception of federalism that says that we can simply give the States an offer that they can't refuse, and through the spending power which is premised on the notion that Congress can do more because it's voluntary, we can force the States to do whatever we tell them to."
UPDATE 11: There's still another hour! This is the severability part. Clement is up first, arguing that if the individual mandate is stricken down, but the guaranteed-issue and community-rating don't fall along with it, then insurance premiums will "skyrocket."
UPDATE 12: Is the test what Congress would have wanted (whether it would want the whole act to fall if one provision falls)? Scalia suggests that's the wrong approach. The severability question is difficult, as the Court struggles with the sprawling legislation. Clement says there's a "heart" to it, which includes the individual mandate, and the provisions interrelated with it, which will not work the same way without it, and these must fall. Then there's all that peripheral stuff, which could work independently, but Clement calls these things the "hollow shell" of the act, which should fall because they wouldn't have been passed without the rest of the bill. It could also be left standing, he concedes. Everyone seems agitated by the prospect of tearing it all down.
[THERE'S MORE TO COME, but I can't get to it tonight. It's just too onerous for now. ]
How bad was the SG in yesterday's oral argument?
Well, he certainly started off bad. I don't think once he got going, he was as much of "train wreck" as Jeffrey Toobin seemed to think, but something was really off. Here I am, knowing what Toobin had said, listening yesterday, for the first time, to the recording of Solicitor General Donald Verrilli's argument.
Rasmussen does a poll on whether Zimmerman is guilty of murdering Trayvon Martin.
Is a disturbing notion of due process taking over in America? Forget trials and juries and all that stuff? Let's do a poll!
IN THE COMMENTS: Meade writes:
Despite round-the-clock media coverage of the Trayvon Martin shooting in Florida, most Americans haven’t come to a conclusion yet whether it’s a case of murder or self-defense.Come to a conclusion yet! The American people should be celebrated for reserving judgment where they haven't heard all the evidence... and for knowing better than to jump to media cues.
One-third (33%) of adults believe crime watch volunteer George Zimmerman should be found guilty of murder in the shooting death of the Florida teenager, while 15% think Zimmerman acted in self-defense, according to a new Rasmussen Reports national telephone survey. But 52% of Americans are not sure.Thank you, 52% of America.
Given the outrage in the black community over the incident, it’s not surprising that 55% of black Americans think the man who killed Martin should be found guilty of murder.Wait! It is surprising. It's surprising that only 55% have given in to the pressure. Don't you think Al Sharpton and Jesse Jackson think they hold more sway than that?
Fifty-five percent (55%) of whites, 36% of blacks and 42% of those of other races are not sure at this point whether it was murder or self-defense.Thank you, people of all colors, who refrain from judging where you have not studied all the evidence. This is heartening news of rationality and respect for due process.
IN THE COMMENTS: Meade writes:
"Don't you think Al Sharpton and Jesse Jackson think they hold more sway than that?"Honestly, Obama never crossed my mind. Make of that what you will. Do I instinctively protect Obama?
Yes. But didn't you leave out someone? Someone who, if he had a son, would look like himself?
A paywall comes tumbling down.
At TNR.
When will the NYT cave?
This decision is in line with our desire to enable new readers to discover and share the best of what TNR’s writers produce each day....Yes, exactly, you want to be read... as much as possible, by as many people as possible. It's all so obvious.
When will the NYT cave?
Reports from Day 3 of the Obamacare oral argument, now in progress.
The argument today is about severability — that is, whether, if a portion of the Act is struck down, some or all of the rest of the Act must fall along with it. Kevin Russell reports, following Paul Clement's argument (boldface added):
Are we supposed to go through the whole 2700 pages? Ha ha. Why should they? The members of Congress didn't. Obama didn't. (Signing the bill, he said: "... you know the feeling of signing your name to pages of barely understandable fine print").
And who can ever forget: "We have to pass the bill so you can find out what is in it"? If the Court drags the whole thing down, no one will ever know what the hell was in it. And I mean no one. Absolutely no one on the face of the earth knows the entire text, and no one will ever know.
The Court was skeptical that the whole act should fall if the individual mandate is invalid. But there wasn’t any clear indication of how far the Court would go. It seemed like there wasn’t much question, except from Justice Sotomayor that the community rating and mandatory issue provisions would fail, that is the government’s position. The fact that the liberals were very engaged, particularly Justice Kagan, may show that they are very worried that the mandate is going to be held unconstitutional.And from Amy Howe:
Almost all of the Justices asked Clement questions, and many were skeptical of his argument that if the mandate and the provisions link to it go, all that would be left is a hollow shell.Thus, it sounds like the parts of the Act that would destroy the private insurance companies will go down along with the individual mandate — that these provisions of the Act are not severable (which seems obvious to me). The harder question was whether the entire Act will fall.
But Ed Kneedler also faced skeptical questions, especially from the more conservative Justices, who asked him how the Court should figure out what other provisions must go. Are we supposed to go through the whole 2700 pages, they asked? (Justice Scalia suggested that this would violate the Eighth Amendment.)
Are we supposed to go through the whole 2700 pages? Ha ha. Why should they? The members of Congress didn't. Obama didn't. (Signing the bill, he said: "... you know the feeling of signing your name to pages of barely understandable fine print").
And who can ever forget: "We have to pass the bill so you can find out what is in it"? If the Court drags the whole thing down, no one will ever know what the hell was in it. And I mean no one. Absolutely no one on the face of the earth knows the entire text, and no one will ever know.
Wisconsin Voter ID case goes straight to the Wisconsin Supreme Court.
The Wisconsin State Journal reports:
Appeals courts sent two lawsuits challenging Wisconsin's blocked new voter ID law directly to the state Supreme Court on Wednesday, determining it was imperative to resolve the cases quickly given the slate of important upcoming elections, including the state's presidential primaries next week.A decision before next Tuesday's primaries? Assuming a majority of the court will uphold the new law, I find it hard to believe the minority won't at least have some power to slow the case down. But, on the other hand, you have a trial court enjoining an important new state law, interfering with an impending election, why should that be allowed to happen, if the law is, in fact, valid?
If the Supreme Court agrees to take the cases, it could reinstate the state's new requirement that voters show photo identification at the polls just days before Tuesday's election. However, attorneys challenging the law said it is unlikely a decision would come that quickly.
When it comes to the Obamacare case, you just can't lose.
Let me state the obvious and not belabor it: Whoever loses will easily and powerfully leverage that loss in the political arena.
If Obama loses, look what he will be able to say to the American voters as they contemplate his reelection:
If Obama loses, look what he will be able to say to the American voters as they contemplate his reelection:
1. I brought you a wonderful solution to a terrible problem. (What he won't say: It would have been a disaster, and fortunately, you will now not need to experience it and see that it was not wonderful, but terrible.)If Obama wins, the GOP candidate — presumably Mitt Romney — will be able to say:
2. My opponent has been arguing for months and months that you need to elect him to get Obamacare repealed. The Supreme Court already did that work, so that major issue is gone. Move on!
3. There are 5 activist conservatives on the Supreme Court, and if you elect a Republican, by the end of his term, there might be 7. The Court will skew far right, destabilizing the law as we know it. There is a great danger here that you must guard against by keeping me in the position to nominate the next Supreme Court Justices and thereby to rebalance the Court.
1. Obamacare is a terrible disaster looming and bearing down on us. You may have thought the Supreme Court would save us from this dire consequence, but it did not. Alarm! Alarm!ADDED: I think that a loss for Obama would be so politically advantageous for him that he might prefer it. Here's where I play with the idea that he's secretly trying to lose, and that's why the SG's argument yesterday was so bad.
2. The Supreme Court left this matter to the political processes, and it is therefore imperative that the political process work — by electing me — to make a repeal possible.
3. There are 5 activist liberals on the Supreme Court, including the 2 liberal Justices chosen by Obama to rubberstamp his liberal agenda. If you reelect Obama, by the end of his second term, there might be 7. The Court will skew far left, destabilizing the law as we know it. Do you want Kagan II and Sotomayor II joining the Court? You must elect me to restore balance.
The NYT fails to engage with any of the most compelling arguments made against the healthcare mandate.
Here's the embarrassing editorial they printed, apparently trusting that readers would accept their characterization of what went on at the oral arguments yesterday, pack up a neat opinion that only activist judges would strike down this law, and move on to other articles... ooh, look! over there on the "most e-mailed" list! It's "The Chocolate Diet?" and "Forging Social Connections for Longer Life" and something about private schools and "The Brain on Love"... la la la... it's so nice to be a good person who cares about the right things and believes what the good people believe...
But who is the New York Times really talking to? I think it's Justice Kennedy, who, everybody who know anything knows, is the vote which, if you have it, you will be on the side that gets the majority in this case. So... Hey, Anthony Kennedy! Don't you see what all the good people whom you need to keep loving you are all going to believe? All those pesky arguments that you publicly puzzled over yesterday are as nothing to the elite class of Americans who internalize New York Times editorial opinion as if it were yummy chocolate that somehow also makes you lose weight.
But who is the New York Times really talking to? I think it's Justice Kennedy, who, everybody who know anything knows, is the vote which, if you have it, you will be on the side that gets the majority in this case. So... Hey, Anthony Kennedy! Don't you see what all the good people whom you need to keep loving you are all going to believe? All those pesky arguments that you publicly puzzled over yesterday are as nothing to the elite class of Americans who internalize New York Times editorial opinion as if it were yummy chocolate that somehow also makes you lose weight.
Tuesday, March 27, 2012
One year ago at the Wisconsin protests: "Shame, shame, shame... Where is the shame?"
"Is it in wearing a gray hoodie under a tailored blazer, a little black derby hat, and a smelled-a-fart expression while carrying a pre-printed 'SHAME' sign when the guy marching after you is wearing a windbreaker and carrying a handmade 'TAX the RICH' sign?"
Is it in carrying a 3D representation of the governor's bare ass while being followed by a blanketed-up old woman in a wheelchair against whom is propped a gigantic "SHAME" sign?
Is it in wheeling around an old woman against whom is propped a gigantic "SHAME" sign and sticking mylar pinwheels into her blankets?
Is it in marching — while holding, instead of sign, a take-out coffee — while a woman holds up a "SHAME!" sign and you (apparently) supervise a child who is bearing a handmade "InaPPropriate Boob" sign which depicts (presumably) Scott Walker being directed toward a blazing fire.
Where is the shame? Is it in my photography and my questions? Should I be ashamed to see alternate meanings in the "SHAME" signs the Wisconsin protesters display proudly?
10 highlights of today's Obamacare oral argument.
1. Justice Alito asks Solicitor General Verrilli if he could state "as succinctly as possible" a "limiting principle" on the Commerce Clause doctrine that says "Congress can force people to purchase a product where the failure to purchase the product has a substantial effect on interstate commerce." Transcript (PDF) at 43. Verrilli proceeds to give a 200+ word answer, which I will try to compress into something actually succinct. Actually, I can't, because he doesn't articulate limits, he only makes an assertion about what Congress can do. Congress may force individuals to buy a product "if it is necessary to counteract risks attributable" to "a comprehensive scheme it has the authority to enact," and
2. Michael A. Carvin (representing the NFIB) argued that Congress didn't restrict its scheme to the people who actually affect commerce by consuming health care services and failing to pay for it. The regulated category, the uninsured, includes plenty of people who do pay their bills and who are not part of the problem. They are simply being swept in to collect the money to cover the costs of health care. Justice Kennedy — whose vote is crucial — says he agrees "that's what's happening here." Transcript at 104. Then he says, in what I think is his most revealing comment:
3. Carvin says the government can't compel you to buy "5 gallons of meat." Gallons of meat! Of course not. It's too bizarre. Transcript at 93.
4. Justice Sotomayor seems to have been watching the news lately, because she refers to the "1 percent." (She's talking about the only people who can pay their own health care bills when something catastrophic happens.) Transcript at 22. She also manifests some of that "empathy" Obama said he wanted when he was choosing a Justice. She says:
5. Paul Clement, representing the states, argues that the "solution" Congress came up with goes way beyond the problem the SG identifies (which is that uninsured people will consume services that they won't pay for).
6. When the SG tries to argue that the penalty for failing to buy insurance is actually a tax (and thus within the Taxing Power), Justice Scalia says: "The President said it wasn't a tax, didn't he?" Transcript at 47. (The SG's answer was basically that it didn't matter.) Justice Ginsburg didn't seem to think it was a tax either: "A tax... is a revenue-raising device," but the purpose of the penalty is to get people to buy insurance, and if they do, there will be no revenue. Transcript at 48. (The SG said the tax code is full of provisions that push people to do things to avoid taxes.) Justice Kagan said the question is "whether the determined efforts of Congress not to refer to this as a tax make a difference."
7. Justice Breyer sounds genuinely angry when Carvin says Congress couldn't — if some terrible disease were "sweeping the country" — require everyone to get inoculated. He's all: "The Federal Government has no power, and if there's — okay, fine. Go ahead. Please turn to Justice Kagan." That felt kind of talk to the hand. Carvin soldiers on, saying it's a local matter. The states would have the power, but not Congress. Then Alito helps Carvin out:
8. If anyone thinks Justice Scalia, because of his concurring opinion in Raich, was susceptible to an argument based on the Necessary and Proper Clause, they should read pages 26 to 29 of the transcript.
9. Justice Alito corners the SG in this exchange:
10. Justice Ginsburg finds it "very strange" that the government can't adopt an approach that tries to "preserve a role for the private sector, for the private insurers" but it can "can take over the whole thing." Transcript at 90. Justice Kennedy, back at page 25, puzzling over the Taxing Power, had "assume[d] that [Congress] could use the tax power to raise revenue and to just have a national health service, single payer." If it can do something so drastic, why can't it do something more moderate? Why force the government, if it wants to solve this problem, to do it in a more draconian manner? (You see this is what sparks my conspiracy theory: Perhaps Obama et al. would prefer to lose this case and be told the only path forward is single payer.)
Congress can regulate the method of payment by imposing an insurance requirement in advance of the time [when] the service is consumed when the class to which that requirement applies either is or virtually most certain to be in that market when the timing of one's entry into that market and what you will need when you enter that market is uncertain and when -- when you will get the care in that market, whether you can afford to pay for it or not and shift costs to other market participants.Okay. Not succinct at all. And not responsive either. Can the SG state limiting principle? Obviously not.
2. Michael A. Carvin (representing the NFIB) argued that Congress didn't restrict its scheme to the people who actually affect commerce by consuming health care services and failing to pay for it. The regulated category, the uninsured, includes plenty of people who do pay their bills and who are not part of the problem. They are simply being swept in to collect the money to cover the costs of health care. Justice Kennedy — whose vote is crucial — says he agrees "that's what's happening here." Transcript at 104. Then he says, in what I think is his most revealing comment:
And the government tells us that's because the insurance market is unique. And in the next case, it'll say the next market is unique. But I think it is true that if most questions in life are matters of degree, in the insurance and health care world, both markets -- stipulate two markets -- the young person who is uninsured is uniquely proximately very close to affecting the rates of insurance and the costs of providing medical care in a way that is not true in other industries. That's my concern in the case.It's all a matter of degree... proximate cause.... He's not buying the bright-line rules. He's getting intuitive about it. I don't think Carvin meets him in the place where, he's revealed, he's making his mind up.
3. Carvin says the government can't compel you to buy "5 gallons of meat." Gallons of meat! Of course not. It's too bizarre. Transcript at 93.
4. Justice Sotomayor seems to have been watching the news lately, because she refers to the "1 percent." (She's talking about the only people who can pay their own health care bills when something catastrophic happens.) Transcript at 22. She also manifests some of that "empathy" Obama said he wanted when he was choosing a Justice. She says:
[W]hat percentage of the American people who took their son or daughter to an emergency room and that child was turned away because the parent didn't have insurance — do you think there's a large percentage of the American population who would stand for the death of that child — if they had an allergic reaction and a simple shot would have saved the child?Transcript at 98. People don't want children to die... therefore, Congress has the power.
5. Paul Clement, representing the states, argues that the "solution" Congress came up with goes way beyond the problem the SG identifies (which is that uninsured people will consume services that they won't pay for).
If all we were concerned about is the cost sharing that took place because of uncompensated care in emergency rooms, presumably we'd have before us a statute that only addressed emergency care and catastrophic insurance coverage. But it covers everything, soup to nuts, and all sorts of other things.Transcript at 74-75. Soup to nuts! Just slop that into my bucket of meat. You see the point though: There's an argument that it's sensible to characterize the uninsured as already in the market because of the costs that they represent and that they are now shifting onto the people who do pay for healthcare, but they're forced to buy insurance that covers much more than they are really at risk to consume. They're being swept in and exploited to get more money to spread around.
6. When the SG tries to argue that the penalty for failing to buy insurance is actually a tax (and thus within the Taxing Power), Justice Scalia says: "The President said it wasn't a tax, didn't he?" Transcript at 47. (The SG's answer was basically that it didn't matter.) Justice Ginsburg didn't seem to think it was a tax either: "A tax... is a revenue-raising device," but the purpose of the penalty is to get people to buy insurance, and if they do, there will be no revenue. Transcript at 48. (The SG said the tax code is full of provisions that push people to do things to avoid taxes.) Justice Kagan said the question is "whether the determined efforts of Congress not to refer to this as a tax make a difference."
I mean, you're suggesting we should just look to the practical operation. We shouldn't look at labels. And that seems right, except that here we have a case in which Congress determinedly said, this is not a tax, and the question is why should that be irrelevant?Transcript at 49. The SG cites a few instances when members of Congress said they were relying on the Taxing Power, at which point the Chief Justice jumps on him: "Why didn't Congress call it a tax, then?" Transcript at 50. The SG admits that they must have thought it would be "more effective" to call it a "penalty."
7. Justice Breyer sounds genuinely angry when Carvin says Congress couldn't — if some terrible disease were "sweeping the country" — require everyone to get inoculated. He's all: "The Federal Government has no power, and if there's — okay, fine. Go ahead. Please turn to Justice Kagan." That felt kind of talk to the hand. Carvin soldiers on, saying it's a local matter. The states would have the power, but not Congress. Then Alito helps Carvin out:
In [Justice Breyer's] hypothetical the harm to other people from the communicable disease is the result of the disease. It is not the result of something that the government has done, whereas here the reason why there is cost- shifting is because the government has mandated that. It has required hospitals to provide emergency treatment and, instead of paying for that through a tax which would be born by everybody,it has required -- it has set up a system in which the cost is surreptitiously shifted to people who have health insurance and who pay their bills when they go to the hospital.There you have it. Quite pithy. There's a difference between the work of the government and a terrible disease. Transcript at 86-88.
8. If anyone thinks Justice Scalia, because of his concurring opinion in Raich, was susceptible to an argument based on the Necessary and Proper Clause, they should read pages 26 to 29 of the transcript.
The argument here is that this also is -- may be necessary, but it's not proper, because it violates an equally evident principle in the Constitution, which is that the Federal Government is not supposed to be a government that has all powers; that it's supposed to be a government of limited powers. And that's what all this questioning has been about. What -- what is left?Scalia rejects the SG's answer pointing to those cases that deal with commandeering the states. Scalia wants recognition of the principle of enumerated powers. The SG says Congress isn't "invading the state sphere" because the market in health insurance is so huge. Scalia professed not to understand, then schooled him on the 10th Amendment, which "says the powers not given to the federal government are reserved not just to the States, but too the States and the people." The SG fell back on the generic doctrinal formula — "Congress is regulating economic activity with a substantial effect on interstate commerce" — and uttered the lame phrase "I would submit with all due respect" followed by the last-ditch assertion that any deeper analysis would be to "embark" on "Lochner-style substantive due process" (i.e., would involve the Court in the inappropriate reassessment of legislative judgments). That is, the SG never engaged with Scalia over limited, enumerated powers.
9. Justice Alito corners the SG in this exchange:
JUSTICE ALITO: Are you denying this? If you took the group of people who are subject to the mandate and you calculated the amount of health care services this whole group would consume and figured out the cost of an insurance policy to cover the services that group would consume, the cost of that policy would be much, much less than the kind of policy that these people are now going to be required to purchase under the Affordable Care Act?There you have it. You can see whom the government has chosen to exploit. The young, the healthy must pay for far more than the costs they are accused of shifting to others.
GENERAL VERRILLI: Well, while they are young and healthy, that would be true. But they are not going to be young and healthy forever. They are going to be on the other side of that actuarial equation at some point. And of course, you don't know which among that group is the person who's going to be hit by the bus or get the definitive diagnosis. And that -
JUSTICE ALITO: The point is -- no, you take into account that some people in that group are going to be hit by a bus, some people in that group are going to unexpectedly contract or be diagnosed with a disease that -- that is very expensive to treat. But if you take their costs and you calculate that, that's a lot less than the amount that they are going to be required to pay. So that you can't just justify this on the basis of their trying to shift their costs off to other people, can you?
GENERAL VERRILLI: Well, no, the people in that class get benefits, too, Justice Alito. They get the guaranteed-issue benefit that they would not otherwise have, which is an enormously valuable benefit. And in terms of the -- the subsidy rationale, I don't think -- I think it's -- it would be unusual to say that it's an illegitimate exercise of the commerce power for some people to subsidize others.
10. Justice Ginsburg finds it "very strange" that the government can't adopt an approach that tries to "preserve a role for the private sector, for the private insurers" but it can "can take over the whole thing." Transcript at 90. Justice Kennedy, back at page 25, puzzling over the Taxing Power, had "assume[d] that [Congress] could use the tax power to raise revenue and to just have a national health service, single payer." If it can do something so drastic, why can't it do something more moderate? Why force the government, if it wants to solve this problem, to do it in a more draconian manner? (You see this is what sparks my conspiracy theory: Perhaps Obama et al. would prefer to lose this case and be told the only path forward is single payer.)
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