"Companies are realizing that women comprise a very heavy percentage of the cocktail-drinking community..."

"... and I believe they are starting to speak more directly to women without the fear that they're going to alienate the male base."

"Deadly storms, intense heat bring misery to millions."

Are you okay?

"The occasional banality of the conversations is a deliberate challenge, not least to the notion of banality itself."

Key sentence from an article written by a woman about how men can't understand some book written by a woman.

"Damien wants to make a statement and this statue certainly does that."

"I think it’s a wonderful idea and I’d be surprised if anyone opposed it."

"[A] plain wedding band made of titanium, engraved with big block letters on the inside..."

"It appears to be that will imprint 'I'M MARRIED' around your finger."

Because what you want your wedding ring to express is mistrust.

At the Aldhouse Café...

... it's delightful.

"The Navy will not use a target depicting a Muslim woman holding a gun..."

"... at a new training range for SEALs in Virginia Beach."

The announcement came hours after the Council on American-Islamic Relations asked the Pentagon to remove the target. A picture of the cardboard target, which shows a woman in a headscarf holding a pistol, was published in The Virginian-Pilot on Tuesday. The image shows verses of the Quran hanging on the wall behind the woman, which also generated criticism from the group.

About that recall recount in Racine.

The majority in the Wisconsin senate hangs on the result. Can we trust it?

The recount process has uncovered a series of stunning revelations regarding ballot security.

That's MacIver, which might tend to exaggerate.

"I believe in an America where millions of Americans believe in an America that's the America millions of Americans believe in."

"That's the America I love."

Said Mitt Romney according to Doonesbury, which made fun of it, and Language Log's Geoffrey K. Pullum was initially inclined to mock, and then thought about it, and realized he agreed with it.

One thing that gave him second thoughts is that his co-blogger Mark Liberman had already processed the quote, using the sublime technique of sentence diagramming. Which is nice.

But the more important basis for second thinking is that when you get to Liberman's old post, you find out that Romney didn't even speak those words. Mark Steyn did, and he was purporting to paraphrase Romney, for humorous effect. Pullum found out he was laughing at Steyn and Steyn was trying to make us laugh, and suddenly the quote wasn't funny anymore. Pullum, the liberal, was initially enjoying laughing at Romney — and his vapid dorkiness — and then he found out he was laughing at something a big right-winger — Steyn — had intended as a joke. Hey, that's not funny!

Pullum regains his sense of self-liberalism and goes into 4th of July mode:

It's nearly the 4th of July.... I love being back in America. It's like slipping into an old pair of shoes that really fit.... I don't think I can find anything mistaken in the passage. I think I believe in that America too. God bless it, anyway.

His post ends with a note that it's completely rewritten, because he apparently had originally assumed Romney did say those words, hadn't seen Liberman's old post, and went the mockery.

Laughing rats.

Via James Taranto, who tweaks the scientists as having "lonely lives" (since they are resorting to tickling rats). But I think it means something, if animals laugh — if they play and have fun — and it's not all survival instinct.

Note that the rats don't just laugh, they latch on to The Hand as a playmate and chase it around, eager to engage it in more fun times.

"White House Already Denying That Mandate Is A Tax. If you deny that it’s a tax, you admit that it’s unconstitutional...."

Says Instapundit, linking here.

I've got to disagree. Under Chief Justice Roberts' opinion, what matters under the constitutional law is how the thing operates in reality, not what you call it. You can switch the the labels around, play whatever political euphemism games you like, and the judges will let you get away with that. It's propaganda. Knock yourself out. Bamboozle the people. Democracy rolls on.

But in court — the message is — we look through the surface and see what is really happening. And if it is structured and functions like a tax, it's a tax.

You know, there's a saying that lawyers and lawprofs like. I think it's corny, so I haven't been saying it. I don't think that in 25+ years of teaching law I've ever said it, but I've heard it said so many times, and it's said because it's a way of saying something that lawyers and lawprofs really think about law: If it walks like a duck and quacks like a duck, it's a duck.

Googling that saying, I get — as my first result — a Wikipedia page titled "Duck test."

Indiana poet James Whitcomb Riley (1849–1916) may have coined the phrase when he wrote "when I see a bird that walks like a duck and swims like a duck and quacks like a duck, I call that bird a duck."The phrase may also have originated much later with Emil Mazey, secretary-treasurer of the United Auto Workers, at a labor meeting in 1946 accusing a person of being a communist....

Later references to the duck test include Cardinal Richard Cushing's, who used the phrase in 1964 in reference to Fidel Castro.

Oh! I didn't know I'd encounter so much communism!

Make of it what you will. We have a democracy, and it's not going to work if we can't handle the bullshit.

The President can say it's not a tax, and it's still a tax for the purposes of analyzing the taxing power. The Supreme Court has validated lying.

Did you notice the other case that came out last Thursday also put the stamp of approval on lying? It was United States v. Alvarez — the "Stolen Valor" case. A man who lied and said he'd won the Congressional Medal of Honor was prosecuted, and he won on free speech grounds in the Supreme Court.

So Thursday in the U.S. Supreme Court was a great day for the grand old human practice of lying. From Justice Alito's dissenting opinion in Alvarez:

Respondent’s brief features a veritable paean to lying. According to respondent, his lie about the Medal of Honor was nothing out of the ordinary for 21st-century Americans. “Everyone lies,” he says. Brief for Respondent 10. “We lie all the time.” Ibid. “[H]uman beings are constantly forced to choose the persona we present to the world, and our choices nearly always involve intentional omissions and misrepresentations, if not outright deception.” Id., at 39.

 Everybody's always lying.

Now, grow up, pay attention, and don't get played.

A physician's epiphany: "I was not, as I had imagined, a professional, but an employee."

In the wee hours today, our commenter Pogo wrote:

Can't sleep.

A little over ten years ago, I had an epiphany at work. I was struggling until I suddenly realized that I was not, as I had imagined, a professional, but an employee.

And my eyes opened, and I understood.
The employee game is an easy one to play, unless you don't know you're playing it.

So with the ACA ruling came a similarly uncomfortable epiphany.

I was the rube.
I was the patsy.
Shit!

Like the die-hard Cubs fan, always waiting for the conservatives to win, I hoped.

But then Roberts ruled, and my eyes opened, and I understood.

All that kabuki about conservative undercurrents in Washington was complete and utter bullshit. It was all of a piece, just different players jockeying for position.

And I was the idiot, believing there was some chance of reversion to ancient times.

Instead of a professional, I am an employee.
Instead of a citizen, I am a serf.
And the serf game is an easy one; its rules are old and easily learned. Bow and scrape, basically. Get yours.

My apologies for having misled anyone otherwise.

What we learn about Scientology from the Katie Holmes/Tom Cruise divorce.

Holmes seeks sole custody of the couple's 6-year-old child Suri, who has supposedly been raised under principles of Scientology:

Suri is apparently treated as an adult, free to make decisions on her clothes, make-up and diet.

Scientology expert Rick Ross explained to the Daily Mail's Alison Boshoff last year: 'Scientologists treat kids as if they are individuals capable of making their own decisions.'

Indeed, Tom echoed this approach in an interview in 2010.

'I say to Suri, "I really want you to eat this protein if you’re going to have that sugar,"' he said.

'She looks at me and she goes: "Dad, I don’t think you should try to force me to do something I don’t want to do."'...

Just last week, an evening of pizza and ice-cream with her mother ended in tears when Katie took her daughter's cone away.

If we assume, for the purposes of discussion, that Cruise follows a religion-based approach to child rearing, involving maximum autonomy, and Holmes now objects to that and wants to raise the child according to more conventional decision-making and discipline by the parent, how much of a factor should that play in determining custody? Should Cruise's ideas about child-rearing have more weight or less weight because they are premised on religion?

That is, imagine Cruise2, a man with the same approach to child-rearing, arrived at through religion-free thought processes — philosophy, common sense, personal experience.... While you're at it, imagine Cruise3, with the same notions of child-rearing, premised on religious beliefs, with a much more conventional religion. Let's make Cruise3 a mainstream Protestant who has come to a serious conclusion about children, individual autonomy, and free choice based on a deep commitment to the teachings of Jesus.

ADDED: USF lawprof Paul L. McKaskle emails:

My course materials on Comparative Civil Liberties (a comparison of European and American law about freedom of expression, association and privacy) discuss this issue. A European Court of Human Rights held that religion cannot be a factor in deciding custody (Hoffmann v. Austria, [1994] 17 E.H.R.R. 293) where the mother and father were married in the Catholic Church but the mother converted to Jehovah's Witness and the Austrian Courts denied her custody for that reason. As to what would happen in the United States (at least as of 2009, the date of the course materials) the course materials summarize as follows:

“On the issue of whether the religion of one parent can be dispositive of the issue of custody, there is little law in the United States. The issue has never reached the U.S. Supreme Court. In California, two older intermediate appellate court cases involving a Jehovah's Witness parent come to opposite results. In Wilson v. Wilson, 137 P.2d 700 (1943) the religious issue appeared to be the dominant factor in the trial court's decision to give custody to the father, who was not a Jehovah's Witness. The appellate court affirmed. In Cory v. Cory, 161 P.2d 385 (1945), the appellate court (without mentioning Wilson, supra) reversed the trial court which had awarded the father custody in preference to the mother, primarily on the basis that the mother was a Jehovah's Witness. (The trial court's reasons were mostly directed at whether the children should be allowed to pledge allegiance to the flag at school, which the father wanted and the mother did not.... Neither case was reviewed by the California Supreme Court, so, technically, a trial court in California could follow either case. There was a third California case, Quiner v. Quiner, 59 Cal.Rptr. 503 (1967), in which the trial court refused to give custody to the mother who belonged to a religious sect (the Exclusive Brethren) in which voluntary association with non-members of the sect or any activities outside the family were strictly forbidden. This meant, according to the trial court, that the child, inter alia, could not attend movies, have school friends outside the sect, engage in school athletics or even have a record player. The Court of Appeals, in a 2-1 decision, reversed and awarded custody to the mother on the grounds that her religion should not be a factor in awarding custody (citing Cory, supra, but not mentioning Wilson, supra.). The California Supreme Court granted a hearing on the case on its own motion. This is an extremely rare occurrence in California, but it had the effect of vacating the Court of Appeals opinion so that it [is no longer] precedent. According to the attorney for the mother, after the hearing was granted the Clerk of the Supreme Court contacted both him and opposing counsel on several occasions and said the Chief Justice (Roger Traynor at the time) “wanted the case settled.” The parties did settle shortly thereafter and the further review in the Supreme Court was dismissed. (That did not restore the Court of Appeals opinion, however. Once it had been vacated it was no longer precedent.)”

[The Quiner case has been cited in law review articles on the topic–written by non-California judges, lawyers or students–under the erroneous assumption that the case is good law because it is published with a citation in the West Publishing Company's California Reporter. West publishes Court of Appeal cases in the California Reporter when they are first filed and they remain there even if they have subsequently been vacated. But such a case does not appear in the Official Reporter and, even though there is an "unofficial" citation available for such a case (as is set out above) it can no longer be cited as authority.]

On a related issue, the power of a divorced parent to raise children in his or her religion, the courts have reached conflicting results. Some courts have held this power is vested exclusively in the custodial parent. See, e.g., Marjorie G. v. Stephen G., 592 N.Y.S.2d 209 (1992). More courts have held that even the non-custodial parent has the right to expose the children to his or her own religion. See, e.g., Felton v. Felton, 418 N.E.2d 606 (Mass. 1981); Mentry v. Mentry, 142 Cal. App. 3d 260 (1983).

I realize this doesn't answer your question of what should the law be. I think it can be an allowable a factor, analogous to Prince v. Massachusetts, 321 U.S. 158 (1944) which held that the state may intervene in protecting the health or safety of a minor despite parental religious beliefs. In my opinion the oddball grant of "autonomy" has a bearing on the child's health. And, of course, if there is joint custody, the mother certainly has an equal right to impose her child-rearing approaches (as long as they were not dangerous) while she has custody.

(In the now vacated Quiner case, when the appellate court reversed and gave the mother custody, it did grant the father some visiting rights which, presumably, would allow the son to associate with others not a member of The Exclusive Brethren during such time-including, of course, his father-and engage in non sect-related activities-including going to movies with his father, for example. All of this, of course, would be completely contrary to the teachings of the sect.)

At the Painted House Café...

... we're still here. Come on in. Surely, there are new things to talk about.

"[F]or ordinary conservatives, as opposed to long-beleaguered conservative law professors, this case wasn’t about proving law professors wrong..."

"... it was about limiting the power of the government by overturning the coercive mandate. That objective was not achieved."

I'm just another lawprof, but I think the Commerce Clause decision matters a lot. Yes, Congress can work around its limit by tapping the taxing power, but it's not politically easy to tax.

Wouldn't it be wonderful if Chief Justice Roberts did switch his vote?

"There has been tons of speculation in the last day that Chief Justice Roberts changed his vote at some late stage in the Affordable Care Act case," writes Orin Kerr, linking to his Volokh co-blogger David Bernstein's 2 posts on the tantalizing meme. Kerr looks at the evidence and speculates about how the complexity of the writing project could have unfolded without Roberts ever switching sides. He was the 5th vote in 2 majorities, one with the liberal 4 and one with the conservative 4:

Roberts is the swing vote in this case and this is the biggest case of his time on the Court, so he quite naturally assigns the opinion to himself....

To write the opinion, Roberts needs to cover a lot of ground — anti-injunction act, tax power, medicaid expansion, etc. Roberts also writes on the Commerce Clause issue, even though it’s not needed to reach the result. Why include that section? Perhaps Roberts thinks that his middle-ground opinion that includes a section agreeing with the mandate challengers on the Commerce Clause might pick up Kennedy’s vote. Or maybe Roberts just wants to weigh in on the most high-profile legal issue of the year, which he happens to care a lot about....

After Chief Roberts circulates his majority opinion, the conservative dissenters decide to write a joint opinion in response. Why a joint opinion? It took Roberts a while to circulate his proposed majority opinion, so the time pressure is particularly intense on the dissenters....

At the same time the conservative dissenters are writing their response to Roberts from the right, Justice Ginsburg does the same from the left...

Read all the speculation. It's interesting, and as Kerr says, eventually we'll probably get the inside story. What I want to talk about is whether there's something wrong with switching. Let's assume the Chief Justice originally voted along with Justices Scalia, Kennedy, Thomas, and Alito, that he was writing a majority opinion, agreeing with them on all the issues that ended up in their joint opinion, and that he decided to go the other way on the taxing power issue.

You might want to know why he switched. He might have switched because, in the process of writing — putting together the constitutional text and theory and all the details of precedent and and the complicated mechanisms of the 900-page statute — he saw that his original intuition about how all the elaborate moving parts would fit together was mistaken. The process of writing the opinion tests many assumptions, and a good, decent, humble judge looks at what he's doing and admits: This won't write.

So, in this case, we might picture Roberts initially determining that he would reject the taxing power argument because Congress portrayed the individual mandate as a requirement, enforced by what it called a "penalty," but along the way, he saw that the label should not be determinative. His opinion emphasizes the case, Drexel Furniture, in which the Court found something Congress had called a tax to be, in reality, a penalty and thus not within the taxing power. Turning that around, he saw that Congress calling something a penalty didn't make it not a tax.

Now, I've criticized Roberts for not talking about the democratic theory of the taxing power. It's one thing to limit Congress's power where it's put a false label on a severe and burdensome law, and it's quite another to find power where Congress avoided using the word that would have made it obvious that there was power. In terms of democratic theory, the judicial role is different. The Court in Drexel thwarted Congress's use of a phony label to make a big power grab. Roberts was allowing a power grab to be made by a Congress that was deceiving the people about what it was really doing. If Congress had admitted forthrightly that the so-called penalty was in fact a tax, people might have reacted differently and made it harder for Congress to assemble the votes needed to pass the law. The mislabeling may have weakened the political pressure against Congress and facilitated its exercise of power.

If the Court is going to defer to the legislative process, it ought to care about dysfunctions in the process, so mislabeling the individual mandate ought to activate the Court, not inspire restraint. I wish Roberts had talked about that. But perhaps he did think about it. Perhaps he thought: Congress is always dealing in euphemisms, conning the public one way or the other. What's truly dysfunctional is a Court that coddles the people, purporting to save them from a Congress that is always going to try to trick them into thinking the legislation is quite nice for everybody. People need to stay alert and pay attention. Be skeptical of labels. Did somebody say nobody considers this a tax increase? And you believed it? You are not sophisticated enough to live in a democracy! Sharpen up! I'm not going to encourage your laxity.

I don't know what mental processes Roberts might have gone through in this vote-switch scenario, but I think you should agree with me that if it were something like what I've written, that there is nothing at all wrong with switching his vote. Even if you don't like his taxing power decision, you shouldn't see anything worse about reaching it with a switch than without a switch, if it was a case of writing a duly judicial opinion and discovering that the right answer was different from what he initially had expected. In fact, it is praiseworthy.

But what if he looked outward, after the oral argument, and heard what the President of the United States and numerous commentators were saying, inveighing against an anticipated decision striking down the law? What if he was vulnerable to the strong assertions that the Court will have sacrificed its legitimacy and become an arm of the Republican Party? What if he thought about the political effect of the drastic opinion he was writing and got cold feet? Judging is an insulated world. The judges are old men and women who stay inside, reading and writing, talking to each other, interacting with people who are extremely deferential and respectful toward them. Why are they reliable interpreters of the law that will affect all the ordinary people out in the real world? What do they know?

A Supreme Court Justice could — for example — spend his off months in the summer driving around the country, parking his RV at Wal-Mart, camping around people who don't realize who he is. But he might also simply expand his reading. You're working on that opinion on a computer, connected to the internet, where everyone is talking about what you are doing. Do you forbid yourself to peek, because it's not properly judicial? Or do you break through that inhibition and take that dose of reality? Is that wrong? If you read those things, you can pre-experience the effect the opinion will have on the people. If you vividly inhabit that experience and come to the realization that the direction you've been going is wrong, and then you switch sides, is that wrong?

Perhaps it's quite right. I criticized Roberts for not talking about the democratic theory of what he did with the taxing power issue. But it might be that he looked very deeply into it and that part of that deep look was a contemplation of how the Court's opinion would be understood, perceived, and used within the political process. He might have thought that the people who expected the Court to save them from the Congress that had tricked them — saying this is not a tax — had gone soft, unfit for democracy. To give them what they wanted would further slacken them. But if those who want the Court to let Congress get away with this trickery win, we'd better watch out. The message is pro-democracy: vigilance.

"The latest survey on the Supreme Court was conducted Wednesday and Thursday nights, the night before and after the health care ruling."

"Overall, there were few differences in the topline results between the two nights. However, there were sizable partisan shifts. On Wednesday night, Republicans tended to give the court good ratings, while Democrats were evenly divided between good/excellent and poor. On Thursday night, the partisan positions were reversed."

Rasmussen reports. Very amusing.

"The 'Today' co-host saga took an almost surreal turn Friday morning..."

"... with Savannah Guthrie slipping into Ann Curry’s old chair and everyone around her, including the network, acting as if nothing had changed."

Well, nothing changed for me. I've never watched any of those chirpy morning shows. But I do see something surreal at the link: a video of a "body language expert" purporting to "decode" the movements of the arms and legs of a tearful Ann Curry on her last "Today."

"I can't imagine [a state that] would say we aren't going to do this new Medicaid program."

The Supreme Court's decision removes the coercion of the Medicaid expansion. The states no longer face losing all their Medicaid funding. But will they opt out? They are still tempted by federal money, just not as much money. Here are the states that joined the argument against the law:



They failed to get the entire new program stricken down, so there's still a decision whether to opt in. Since the most coercive aspect of the program is gone, it's now a harder decision to make.

The federal government will pick up the entire cost of the expansion for the first three years. After that, it will pick up 90% of the cost and leave the remaining 10% to states. While that leaves only a small share for states, many have argued even that's too much given their tight budgets.

Several states said Thursday that, despite the ruling, they have no plans to opt out of the expansion. Washington state, which was a plaintiff in the Supreme Court lawsuit, said it will likely take the new federal money and expand its Medicaid program to about 500,000 residents in 2014. "That is the best bargain one can buy," said Democrat Gov. Christine Gregoire, who objected to the state Republican attorney general's decision to join the lawsuit. "I can't imagine who would say we aren't going to do this new Medicaid program."

So the truly heavy-handed coercion is gone, but the enticement that is left is still highly persuasive.

"Will it be permanently victimizing ourselves, and whining, whining, whining?"

"Or will it be something else: the something else is the syntax of life, the vocabulary and the lexicon of the Holocaust survivors saying, 'Remember us positively.'"

Why are store tomatoes so bad?

Maybe it's the redness.

The unexpected culprit is a gene mutation that occurred by chance and that was discovered by tomato breeders. It was deliberately bred into almost all tomatoes because it conferred an advantage: It made them a uniform luscious scarlet when ripe.

Now, in a paper published in the journal Science, researchers report that the very gene that was inactivated by that mutation plays an important role in producing the sugar and aromas that are the essence of a fragrant, flavorful tomato.

"It is not our job to protect the people from the consequences of their political choices."

That's the quote from Roberts' opinion that he extracted up front as he began the announcement of the opinion today.

There's material throughout his opinion — which I've highlighted in my various posts today — that calls attention to the flawed mechanisms of the universal-health-coverage scheme. Most notably, the individual mandate is only constitutional because it's optional, and people can simply pay the "penalty" (now known as the tax) to the federal government as long as they don't want to buy health insurance. If people behave rationally and weigh the costs against the benefits, they won't buy insurance until their expenses (health care costs + the penalty) exceed the premiums, and the insurance companies will not amass premiums from the vast numbers of healthy people who pay in more than they receive. It seems like a design for collapse, but, as Roberts says: That's not his concern.

AND: To say it's a "design for collapse" is to set up the question whether it was a screw-up or whether it was the first move in a scheme to take us to a single-payer, government health care program.

MORE: This calls to mind the old Pelosi quote:



"But we have to pass the bill so that you can find out what is in it."

We found out today, I think. Have you noticed yet?

How Chief Justice Roberts reenvisioned the individual mandate as a tax... and how he avoided the question of congressional accountability.

After going through the Commerce Clause, the Necessary and Proper Clause, and the Spending Clause, I'm finally going to read the taxing power part of the new case — which, by the way, is called National Federation of Independent Business v. Sebelius.

This is the part where a 5-person majority upholds the individual mandate. Chief Justice Roberts writes, joined by Justice Ginsburg, Breyer, Sotomayor, and Kagan. The 4 liberal Justices did not agree with him in the Commerce Clause part of his opinion, III-A, so they also don't join III-B, which is the transition from the Commerce Clause to the taxing power discussion. In III-B, Roberts tells us that we need to shift from thinking about the individual mandate "as ordering individuals to buy insurance, but rather as imposing a tax on those who do not buy that product." The government argued for reading the statute one way — as a requirement — but that led to viewing it as unsupported by the only enumerated power that might have supported it, the commerce power. So we shift to the other alternative — the mandate as a device for identifying who owes a tax. He's choosing to read the mandate in the way that allows it to be supported by another enumerated power, the taxing power.

Now, on to part III-C, with Roberts writing for the majority.

The exaction the Affordable Care Act imposes on those without health insurance looks like a tax in many respects. The “[s]hared responsibility payment,” as the statute entitles it, is paid into the Treasury by “taxpayer[s]” when they file their tax returns. 26 U. S. C. §5000A(b). It does not apply to individuals who do not pay federal income taxes because their household income is less than the filing threshold in the Internal Revenue Code. §5000A(e)(2). For taxpayers who do owe the payment, its amount is determined by such familiar factors as taxable income, number of dependents, and joint filing status. §§5000A(b)(3), (c)(2), (c)(4). The requirement to pay is found in the Internal Revenue Code and enforced by the IRS, which—as we previously explained—must assess and collect it “in the same manner as taxes.” Supra, at 13–14. This process yields the essential feature of any tax: it produces at least some revenue for the Government. United States v. Kahriger, 345 U. S. 22, n. 4 (1953). Indeed, the payment is expected to raise about $4 billion per year by 2017....

The fact that Congress labeled it a "penalty" rather than a "tax" isn't crucial. (Nor does it matter that the Court doesn't view it as a tax within the meaning of the Anti-Injunction Act.) Roberts also distinguishes cases that say when an exaction is a "penalty," it is not a tax. So the label "tax" won't turn what is really a penalty into a tax (within the taxing power), and here, the label "penalty" won't turn what is really a tax into a penalty. The question is what is it really, and this "penalty" is really a tax for 3 reasons:

First, for most Americans the amount due will be far less than the price of insurance, and, by statute, it can never be more. It may often be a reasonable financial decision to make the payment rather than purchase insurance, unlike the “prohibitory” financial punishment in Drexel Furniture [the case that found something labeled "tax" to be a penalty]. 259 U. S., at 37. Second, the individual mandate contains no scienter requirement [unlike Drexel]. Third, the payment is collected solely by the IRS through the normal means of taxation—except that the Service is not allowed to use those means most suggestive of a punitive sanction, such as criminal prosecution [unlike Drexel, where the "tax" was enforced by the Labor Department].

It doesn't matter that this tax is supposed to get people to do something else. Taxes are often structured to motivate people to do something the government would like you to do. There are endless taxes shaping behavior, but they still get to count as taxes under the taxing power since they raise revenue. Roberts notes the obvious example of a cigarette tax. It's an incentive not to smoke, and it raises revenue. It's a tax.

In distinguishing penalties from taxes, this Court has explained that “if the concept of penalty means anything, it means punishment for an unlawful act or omission.”

In this case, what's called a "penalty" isn't really a penalty because it's not a punishment for failing to buy insurance.

While the individual mandate clearly aims to induce the purchase of health insurance, it need not be read to declare that failing to do so is unlawful. Neither the Act nor any other law attaches negative legal consequences to not buying health insurance, beyond requiring a payment to the IRS. The Government agrees with that reading, confirming that if someone chooses to pay rather than obtain health insurance, they have fully complied with the law. 

So it's just an option. You can opt not to buy the insurance and to pay the "penalty." Whichever you want. The government said exactly that to the Court. You won't have done anything wrong, so pay whichever is less. And if you are one of those healthy people whom the insurance companies need to bulk up their funds so they can pay the expenses of their unhealthy, you should hand your money to the government. Screw the insurance companies! That is the plan. The government said so. If and when you have health-care expenses that outweigh the cost of insurance, then go ahead and buy insurance. Again: screw the insurance companies. That is the plan.

Indeed, it is estimated that four million people each year will choose to pay the IRS rather than buy insurance. See Congressional Budget Office, supra, at 71. We would expect Congress to be troubled by that prospect if such conduct were unlawful. That Congress apparently regards such extensive failure to comply with the mandate as tolerable suggests that Congress did not think it was creating four million outlaws. It suggests instead that the shared responsibility payment merely imposes a tax citizens may lawfully choose to pay in lieu of buying health insurance.

It's the plan. Can you see the ultimate plan?

Now, this is awfully tricky. What about democratic theory? Shouldn't Congress have to reveal such a devious scheme to the people so they can react and pressure Congress about what they want and don't want? As I said back during the oral argument:

[W]hen Congress was passing the bill, the people never understood [it as a tax]. It was utterly hidden under an incomprehensible mass of text and propaganda. There was no transparency. It rankles to think that Congress could acquire this dramatic power by a monumental political deception. But will this shake the Court out of its usual position of comfy restraint? 

And here I find the place in the oral argument transcript where Justice Breyer pinned down the Solicitor General Verrilli, getting him to say "If they pay the tax penalty, they're in compliance with the law." Breyer said "Thank you." That was a big "thank you," and Verrilli responded "Thank you, Justice Breyer." Indeed! It was on that point that the case was won. Breyer later returns to the subject, and Roberts gets involved, asking the Solicitor General whether "one of the purposes of the provision is to raise revenue," which was the key issue under the taxing power. I said at the time:

Get it? Something needs to be specifically called a tax for the Anti-Injunction Act to apply, but when it comes to assessing Congress's enumerated power to tax, specific textual reference to "tax" isn't needed.

I think Justice Breyer was buying that argument.

And Roberts was too, in the end.

So, Congress was raising revenue, but they really didn't want to talk about that at the time, and that's enough for the taxing power. Too bad if the people didn't notice. Justices Scalia, Kennedy, Thomas, and Alito — says it matters that Congress called this a "penalty" — expressing that to fail to buy insurance is wrongdoing that is being punished. And here's where Scalia-Kennedy-Thomas-Alito talk about democratic theory and accountability:

Taxes have never been popular, see, e.g., Stamp Act of 1765, and in part for that reason, the Constitution requires tax increases to originate in the House of Representatives. See Art. I, §7, cl. 1. That is to say, they must originate in the legislative body most accountable to the people, where legislators must weigh the need for the tax against the terrible price they might pay at their next election, which is never more than two years off. The Federalist No. 58 “defend[ed] the decision to give the origination power to the House on the ground that the Chamber that is more accountable to the people should have the primary role in raising revenue.” United States v. Munoz-Flores, 495 U. S. 385, 395 (1990) . We have no doubt that Congress knew precisely what it was doing when it rejected an earlier version of this legislation that imposed a tax instead of a requirement-with-penalty. See Affordable Health Care for America Act, H. R. 3962, 111th Cong., 1st Sess., §501 (2009); America’s Healthy Future Act of 2009, S. 1796, 111th Cong., 1st Sess., §1301. Imposing a tax through judicial legislation inverts the constitutional scheme, and places the power to tax in the branch of government least accountable to the citizenry.

Roberts' only response is that congressional power doesn't depend on labeling. He offers no answer to the discussion of legislative accountability. Interestingly, he did talk about accountability in connection with the spending power issue, as noted in this earlier post. He said:

Permitting the Federal Government to force the States to implement a federal program would threaten the political accountability key to our federal system.

In that context, the idea is that people need to know whether the state or federal government is responsible for a given matter so they can know who deserves blame or credit for a given policy. I think it's a real omission for Roberts not to address the accountability theory with respect to the mandate as a tax. Justices Justices Scalia, Kennedy, Thomas, and Alito were explicit about it, and it was obvious anyway. Maybe Roberts could have said that these 2 accountability situations are different. If Congress uses deceptive labeling to keep people from getting stirred up in time to stop the legislation, that's between Congress and the electorate, and we can get mad later and vote the bums out. But if Congress employs the states to do its work and the people don't like it, the people will be confused about who's really responsible. Congress will have blurred the lines of accountability. The people will have trouble knowing who are the bums. Roberts might have said something like that. These are 2 different ways of tricking people and one matters and one didn't.

But Roberts didn't talk about it. You know, there's a such thing as judicial accountability too. That's what these opinions are for.

ADDED: I've corrected the text to reflect that Justices Scalia, Kennedy, Thomas, and Alito are writing the dissenting opinion jointly.

"The House of Representatives on Thursday voted to hold Attorney General Eric H. Holder Jr. in contempt..."

"... for failing to disclose internal Justice Department documents in response to a subpoena."

It was the first time in American history that Congress has imposed that sanction on a sitting member of a president’s cabinet."

The vote – 255 to 67, with one member voting present – followed an acrimonious and politically charged debate. Many Democrats walked out of the chamber in protest without voting, accusing Republicans of railroading the motion so they could inflict political damage on the Obama administration during an election year.

President Obama should have been reading SCOTUSblog, not watching TV.

"Standing with White House chief of staff Jack Lew and looking at a television in the “Outer Oval” featuring a split screen of four different networks, the president saw graphics on the screens of the first two cable news networks to break the news — CNN and Fox News Channel — announcing, wrongly, that he had lost."

I was reading the SCOTUSblog live blog with CNN on in the background:

CNN is getting it wrong, if SCOTUSblog is right. They're headlining "Individual Mandate Struck Down."...

From SCOTUSblog. "The bottom line: the entire ACA is upheld, with the exception that the federal government's power to terminate states' Medicaid funds is narrowly read." From CNN: Blitzer says "let's take a deep breath... if you're watching this on Twitter... momentous... more information...."

CNN was fumbling and blathering. I guess they have to fill every second of real time. A live blog seems as though it's real-time, but the participants have the ability to read something and study it without writing anything. But that's not enough of an excuse for the TV news failure. They need one person to talk, but several others could be quickly reading parts of the opinion and ready to go on camera when they have something to say.

I'm still annoyed at CNN for wasting my time — and playing with my emotions — back on June 5th when the polls closed in the Wisconsin recall election and they were insisting that the race was too close to call. It's razor close. After an hour of such hand-wringing, they call it for Walker, and in the end, he wins by 7 percentage points.

Fox News got it wrong too, it should be noted. Both today and on June 5th.

What the Supreme Court said about the spending power and Medicaid Expansion under the ACA.

Let's look at what Chief Justice Roberts writes about the spending power. (This is Part IV of his opinion, which is joined only by Breyer and Kagan. The rest of the votes for limiting the spending power come from Scalia, Kennedy, Thomas, and Alito.)

The issue here is raised by states that said that the Medicaid expansion wasn't merely a condition on spending, but "coercion." It's well established that Congress can't "compel the States to enact or administer a federal regulatory program," Roberts said, but Congress can offer money on the condition that they do what Congress could not compel. The states have a choice. But when is a choice not a choice? When it's compulsion.

Roberts highlights the federalism theory:

Permitting the Federal Government to force the States to implement a federal program would threaten the political accountability key to our federal system. “[W]here the Federal Government directs the States to regulate, it may be state officials who will bear the brunt of public disapproval, while the federal officials who devised the regulatory program may remain insulated from the electoral ramifications of their decision.” [New York v. United States], at 169. Spending Clause programs do not pose this danger when a State has a legitimate choice whether to accept the federal conditions in exchange for federal funds. In such a situation, state officials can fairly be held politically accountable for choosing to accept or refuse the federal offer. But when the State has no choice, the Federal Government can achieve its objectives without accountability, just as in New York and Printz. Indeed, this danger is heightened when Congress acts under the Spending Clause, because Congress can use that power to implement federal policy it could not impose directly under its enumerated powers....

In rejecting the argument that the federal law was a “weapon[ ] of coercion, destroying or impairing the autonomy of the states,” the Court [in Steward Machine Co. v. Davis] noted that there was no reason to suppose that the State in that case acted other than through “her unfettered will.”  Id. at 586, 590....

But in this case, Congress isn't simply offering new money with a condition attached. It "has also threatened to withhold those States’ existing Medicaid funds."  That additional threat is there for no purpose other than to force the state to accept a dramatic expansion of Medicaid responsibilities:

In this case, the financial “inducement” Congress has chosen is much more than “relatively mild encouragement”—it is a gun to the head.

A State that opts out of the Affordable Care Act’s expansion in health care coverage thus stands to lose not merely “a relatively small percentage” of its existing Medicaid funding, but all of it. 

The internal quote is from South Dakota v. Dole, where the Court accepted Congress's withholding of 5% of federal highway funds if the state failed to raise the drinking age to 21.

Medicaid spending accounts for over 20 percent of the average State’s total budget, with federal funds covering 50 to 83 percent of those costs.... The threatened loss of over 10 percent of a State’s overall budget...  is economic dragooning....

It's compulsion.

Roberts rejects the argument made by Justice Ginsburg that it's acceptable because the threatened funds are all within the Medicaid program and Congress is only setting the conditions of that program:

We cannot agree that existing Medicaid and the expansion dictated by the Affordable Care Act are all one program simply because “Congress styled” them as such. Post, at 49. If the expansion is not properly viewed as a modification of the existing Medicaid program, Congress’s decision to so title it is irrelevant. 

So today is a day for rejecting congressional labels. The individual mandate was upheld under the taxing power even though Congress avoided calling it a tax, and the Medicaid provisions don't get to be considered part of one big pre-existing program even though Congress portrayed them that way. 

The Medicaid expansion... accomplishes a shift in kind, not merely degree. The original program was designed to cover medical services for four particular categories of the needy: the disabled, the blind, the elderly, and needy families with dependent children. See 42 U. S. C. §1396a(a)(10). Previous amendments to Medicaid eligibility merely altered and expanded the boundaries of these categories. Under the Affordable Care Act, Medicaid is transformed into a program to meet the health care needs of the entire nonelderly population with income below 133 percent of the poverty level. It is no longer a program to care for the neediest among us, but rather an element of a comprehensive national plan to provide universal health insurance coverage. 

So the truly needy category got enlarged to include the relatively needy... and that made it a new program? To accept that argument, you're supposed to think of the overall purpose of the program and see that it's qualitatively different for Congress to go from dealing with the problem of poverty — which states have had to attend to all along — to taking on the ambitious governmental project of universal health care coverage. States might say yes, please help us with our basic welfare program, but still want to think separately about whether they accept the new project — which is highly controversial as a political matter — universal health care. To link the two is to wreck the scheme of accountability, the federalism theory at the heart of the conditional spending power doctrine.

Now, let's look at what Justices Scalia, Kennedy, Thomas, and Alito wrote, which represents 4 more votes on the spending power issue.

This practice of attaching conditions to federal funds greatly increases federal power.... [which] if not checked in any way, would present a grave threat to the system of federalism created by our Constitution....

Recognizing this potential for abuse, our cases have long held that the power to attach conditions to grants to the States has limits....

Where all Congress has done is to “encourag[e] state regulation rather than compe[l] it, state governments remain responsive to the local electorate’s preferences; state officials remain accountable to the people. [But] where the Federal Government compels States to regulate, the accountability of both state and federal officials is diminished.” New York, supra, at 168.

Here's the federalism accountability theory again.

When Congress compels the States to do its bidding, it blurs the lines of political accountability. If the Federal Government makes a controversial decision while acting on its own, “it is the Federal Government that makes the decision in full view of the public, and it will be federal officials that suffer the consequences if the decision turns out to be detrimental or unpopular.” New York, 505 U. S., at 168. But when the Federal Government compels the States to take unpopular actions, “it may be state officials who will bear the brunt of public disapproval, while the federal officials who devised the regulatory program may remain insulated from the electoral ramifications of their decision.” Id., at 169; see Printz, supra, at 930. For this reason, federal officeholders may view this “departur[e] from the federal structure to be in their personal interests . . . as a means of shifting responsibility for the eventual decision.” New York, 505 U. S., at 182–183. And even state officials may favor such a “departure from the constitutional plan,” since uncertainty concerning responsibility may also permit them to escape accountability. Id., at 182. If a program is popular, state officials may claim credit; if it is unpopular, they may protest that they were merely responding to a federal directive.

So is this coercion? Scalia-Kennedy-Thomas-Alito pose a hypothetical:

Suppose, for example, that Congress enacted legislation offering each State a grant equal to the State’s entire annual expenditures for primary and secondary education. Suppose also that this funding came with conditions governing such things as school curriculum, the hiring and tenure of teachers, the drawing of school districts, the length and hours of the school day, the school calendar, a dress code for students, and rules for student discipline. As a matter of law, a State could turn down that offer, but if it did so, its residents would not only be required to pay the federal taxes needed to support this expensive new program, but they would also be forced to pay an equivalent amount in state taxes. 

If if a state declines the funds, the people in that state get to maintain local autonomy about something that has traditionally been the province of the states, but they have to pay their own full cost and their share of the federal money that goes to all the other states. That always happens with conditional federal spending: Instead of each state paying its own way and making its own decisions, the states as a whole make the decisions and the money comes from the states as a whole. This means the states that like the decisions (and might have been happy spending their own money to do something) now get to cover their expenses with money taken from all the states, including the ones who hate the decisions enough to reject the money altogether.

But conditional spending is already part of the doctrine, so Scalia-Kennedy-Thomas-Alito are only talking about putting a limit on it. The limit is, as Roberts also wrote, when the offer becomes compulsion, because there is no real choice — when "federal spending legislation crosses the line from enticement to coercion." Scalia-Kennedy-Thomas-Alito say courts should be careful, but it's "unmistakably clear" in this case that Congress had crossed the line. He covers the same numbers that formed the core of Roberts' discussion — the immense size of the Medicaid program in the states' budget.

What the statistics suggest is confirmed by the goal and structure of the ACA. In crafting the ACA, Congress clearly expressed its informed view that no State could possibly refuse the offer that the ACA extends....

If Congress had thought that States might actually refuse to go along with the expansion of Medicaid, Congress would surely have devised a backup scheme so that the most vulnerable groups in our society, those previously eligible for Medicaid, would not be left out in the cold... If Congress had contemplated that some of these citizens would be left without Medicaid coverage as a result of a State’s withdrawal or expulsion from the program, Congress surely would have made them eligible for the tax subsidies provided for low-income aliens. 

These features of the ACA convey an unmistakable message: Congress never dreamed that any State would refuse to go along with the expansion of Medicaid. Congress well understood that refusal was not a practical option.

Thus far, the Scalia-Kennedy-Thomas-Alito opinion is really no different from Roberts'. The divergence comes at the point of deciding what to do about the Congress's transgression. Scalia-Kennedy-Thomas-Alito would invalidate the Medicaid Expansion (and the entire Act). The more moderate Roberts solution is only to invalidate the withholding funds that are part of the pre-existing Medicaid program. As Scalia-Kennedy-Thomas-Alito see it, the Medicaid Expansion was completely interwoven with a scheme of universal health-care coverage, which included exerting this compulsion upon the states with respect to the new Medicaid coverage.

ADDED: I've corrected the text to reflect that Justices Scalia, Kennedy, Thomas, and Alito are writing the dissenting opinion jointly.

Chief Justice Roberts writes an opinion limiting the commerce power and the spending power.

This is an important opinion about federalism and the scope of Congress's enumerated powers. Even as the individual mandate was upheld under taxing power — and Roberts wrote about the expansiveness of that power — we have an opinion that limiting those other 2 powers. I want to begin to talk about the Chief Justice's contribution to constitutional law as he writes about these 2 powers.

Let's not be distracted by the breadth of the taxing power. The American people exert tremendous political power against taxing. Look at the Tea Party. A political price will be paid — both for the tax and the deceit about imposing a tax.

What I want to do first, now that I have my hands on the opinion, is analyze the Commerce Clause doctrine.

ADDED: The Commerce Clause discussion is in Section III-A of the Chief Justice's opinion:

The guaranteed-issue and community-rating reforms do not... address the issue of healthy individuals who choose not to purchase insurance to cover potential health care needs. In fact, the reforms sharply exacerbate that problem, by providing an incentive for individuals to delay purchasing health insurance until they become sick, relying on the promise of guaranteed and affordable coverage. The reforms also threaten to impose massive new costs on insurers, who are required to accept unhealthy individuals but prohibited from charging them rates necessary to pay for their coverage. This will lead insurers to significantly increase premiums on everyone. See Brief for America’s Health Insurance Plans et al. as Amici Curiae in No. 11–393 etc. 8–9.

The individual mandate was Congress’s solution to these problems. By requiring that individuals purchase health insurance, the mandate prevents cost-shifting by those who would otherwise go without it. In addition, the mandate forces into the insurance risk pool more healthy individuals, whose premiums on average will be higher than their health care expenses. This allows insurers to subsidize the costs of covering the unhealthy individuals the reforms require them to accept....

But in fact, as we shall see in the taxing power discussion, these healthy individuals won't have to buy insurance, because they can simply opt to pay the penalty, which they rationally will do because it costs less. And this money goes to the government — it's tax revenue — and not to the insurance companies, who now have those massive new costs.

The Government contends that the individual mandate is within Congress’s power because the failure to purchase insurance “has a substantial and deleterious effect on interstate commerce” by creating the cost-shifting problem. Brief for United States 34. The path of our Commerce Clause decisions has not always run smooth, see United States v. Lopez, 514 U. S. 549–559 (1995), but it is now well established that Congress has broad authority under the Clause...

Roberts deals with the existing doctrine, which is, he says, "expansive." But this is different, because never before has Congress tried to use it it "to compel individuals not engaged in commerce to purchase an unwanted product."

The language of the Constitution reflects the natural understanding that the power to regulate assumes there is already something to be regulated...

And all the cases finding commerce power refer to some activity that is regulated. This is taking those who are inactive and forcing them to become active.

Construing the Commerce Clause to permit Congress to regulate individuals precisely because they are doing nothing would open a new and potentially vast domain to congressional authority. Every day individuals do not do an infinite number of things. In some cases they decide not to do something; in others they simply fail to do it. Allowing Congress to justify federal regulation by pointing to the effect of inaction on commerce would bring countless decisions an individual could potentially make within the scope of federal regulation, and—under the Government’s theory—empower Congress to make those decisions for him.

It's beyond Wickard v. Filburn because "[t]he farmer in Wickard was at least actively engaged in the production of wheat." Roberts brings up the famous "broccoli" hypothetical: The government might try to force to "buy vegetables." (Later he specifies "broccoli," so broccoli lives on as the hypothetical vegetable in constitutional law.)

Congress already enjoys vast power to regulate much of what we do. Accepting the Government’s theory would give Congress the same license to regulate what we do not do, fundamentally changing the relation between the citizen and the Federal Government.

To an economist, perhaps, there is no difference between activity and inactivity; both have measurable economic effects on commerce. But the distinction between doing something and doing nothing would not have been lost on the Framers, who were “practical statesmen,” not metaphysical philosophers....

That strikes me as odd, because it seems that the economists' idea is what is practical, while the action/inaction distinction seems more philosophical.

Next, there's the idea — pushed by the government — that everyone is already somehow “active in the market for health care” even when the use of health care services lies in the future. Eventually, they are going to participate in this market, and what Congress did was regulate their payment for these services they are consuming now or in the future. Roberts sticks to what people are doing currently, as he makes his action/inaction distinction matter. And this is a practical, economic matter, because the point of the mandate is to drag these healthy people into the pool so insurance companies can get premiums from people who don't take out more than they put in. These people are targeted precisely because they are inactive:

It is precisely because these individuals, as an actuarial class, incur relatively low health care costs that the mandate helps counter the effect of forcing insurance companies to cover others who impose greater costs than their premiums are allowed to reflect.... If the individual mandate is targeted at a class, it is a class whose commercial inactivity rather than activity is its defining feature.

Note that as Roberts explains why these people can't be regulated, he's also explaining why the health insurance companies are doomed. (But, you may think, isn't the mandate upheld under the taxing power? Again, what's upheld is the tax imposed for not buying insurance, and that's less expensive than buying insurance, and the money goes to the federal government, not to the insurance companies. Meanwhile — to make it crushingly clear — the insurance companies do have to sell insurance to people with pre-existing conditions. So these people who currently don't buy insurance because it's not worth it can start buying insurance as soon as it is worth it, and under the ACA, they can't be charged more than the people who have been buying insurance all along.)

MORE: To get the other 4 votes for the Commerce Clause position, we need to switch to the joine dissent, written by Justices Scalia, Kennedy, Thomas, and Alito. Scalia-Kennedy-Thomas-Alito track Roberts' activity/inactivity distinction, saying:

The striking case of Wickard v. Filburn, 317 U. S. 111 (1942), which held that the economic activity of growing wheat, even for one’s own consumption, affected commerce sufficiently that it could be regulated, always has been regarded as the ne plus ultra of expansive Commerce Clause jurisprudence. To go beyond that, and to say the failure to grow wheat (which is not an economic activity, or any activity at all) nonetheless affects commerce and therefore can be federally regulated, is to make mere breathing in and out the basis for federal prescription and to extend federal power to virtually all human activity....

The case upon which the Government principally relies to sustain the Individual Mandate under the Necessary and Proper Clause is Gonzales v. Raich, 545 U. S. 1 (2005) .

Remember that Scalia surprised us by concurring in Raich — based on the Necessary and Proper Clause.

That case held that Congress could, in an effort to restrain the interstate market in marijuana, ban the local cultivation and possession of that drug. Id., at 15–22. Raich is no precedent for what Congress has done here. That case’s prohibition of growing (cf. Wickard, 317 U. S. 111), and of possession (cf. innumerable federal statutes) did not represent the expansion of the federal power to direct into a broad new field. The mandating of economic activity does, and since it is a field so limitless that it converts the Commerce Clause into a general authority to direct the economy, that mandating is not “consist[ent] with the letter and spirit of the constitution.” McCulloch v. Maryland, 4 Wheat. 316, 421 (1819).

Moreover, Raich is far different from the Individual Mandate in another respect. The Court’s opinion in Raich pointed out that the growing and possession prohibitions were the only practicable way of enabling the prohibition of interstate traffic in marijuana to be effectively enforced. 545 U. S., at 22....

With the present statute, by contrast, there are many ways other than this unprecedented Individual Mandate by which the regulatory scheme’s goals of reducing insurance premiums and ensuring the profitability of insurers could be achieved. For instance, those who did not purchase insurance could be subjected to a surcharge when they do enter the health insurance system. Or they could be denied a full income tax credit given to those who do purchase the insurance....

AND: Let's go back to the Chief Justice's opinion and to his discussion of the Necessary and Proper Clause. Once Congress decides to get into the immense project of dealing with health care and health insurance — an end that easily fits within the commerce power — why don't we accord it great latitude in determining which means to use to achieve that end? We've seen that Scalia-Kennedy-Thomas-Alito said there are other means, but the case law — notably McCulloch v. Maryland — says that Congress has its choice of means. In McCulloch, Chief Justice Marshall said that the Constitution "does not profess to enumerate the means by which the powers it confers may be executed," so "the ordinary means of execution" are implied. The chosen means doesn't have to be "absolutely necessary," and "narrow construction" would make the assigned work of government "impracticab[le]," which can't be what was intended. Marshall approves of means that are "appropriate" and "plainly adapted" to the enumerated ends, if they are — and here's the mystery phrase that Scalia-Kennedy-Thomas-Alito  quoted — "consist[ent] with the letter and spirit of the constitution."

Chief Justice Roberts says that the Court has been "very deferential to Congress’s determination that a regulation is 'necessary'" — but it still looks for consistency with — that phrase again — "the letter and spirit of the constitution." And Roberts essentially repeats his Commerce Clause argument here: It would allow Congress to regulate inactivity.

Even if the individual mandate is “necessary” to the Act’s insurance reforms, such an expansion of federal power is not a “proper” means for making those reforms effective.

What about Raich, then? Why was it "necessary" and "proper" to reach home-grown, home-consumed marijuana used by medical patients? Roberts says that "marijuana is a fungible commodity" and so there was potential for diversion into interstate market that could "substantially undercut" Congress's big scheme of banning marijuana (which clearly is a matter of regulating commerce). But regulating the health insurance industry is clearly a matter of regulating commerce, and the people who don't by health insurance are substantially undercutting the success of that big scheme. Here's where I thought the Court would have the most trouble, and I'm not seeing much elaboration of why this is different from Raich.

ALSO: Here's Justice Ginsburg, in dissent, talking about the Necessary and Proper Clause:

Without the individual mandate, Congress learned, guaranteed-issue and community-rating requirements would trigger an adverse-selection death-spiral in the health-insurance market: Insurance premiums would skyrocket, the number of uninsured would increase, and insurance companies would exit the market. 

Yes, as we saw above, the Chief Justice clearly recognized this problem. It's an economic disaster without the individual mandate. Why doesn't that make it necessary? I can see 2 answers: 1. It is necessary. It's just not proper. And 2: Since the ACA lets the uninsured avoid purchasing insurance if they pay a tax/penalty to the federal government, and since that's what healthy people will rationally do, the scheme was never set up to work. If it doesn't even work, it doesn't make sense to call it necessary.

But Ginsburg says the individual mandate is what makes it work, so — using Raich quotes — it's an “essential par[t] of a larger regulation of economic activity” without which “the regulatory scheme [w]ould be undercut.” This makes sense if you think it's not the proper place of the courts to look at a legislative solution and make a judgment about how well it's going to work, and, I note, neither Roberts nor Scalia-Kennedy-Thomas-Alito  relied on an independent judicial assessment of whether the individual mandate —with its big loophole (paying the tax) — would actually work to solve the problem it's supposed to resolve.

What Roberts and Scalia-Kennedy-Thomas-Alito did pay attention to was the "spirit of the constitution" and what is "proper." Ginsburg say that Roberts fails "to explain why the individual mandate threatens our constitutional order." He cites cases and claims this situation is different, but what is the doctrine?

How is a judge to decide, when ruling on the constitutionality of a federal statute, whether Congress employed an “independent power,” ante, at 28, or merely a “derivative” one, ante, at 29. Whether the power used is “substantive,” ante, at 30, or just “incidental,” ante, at 29? The instruction The Chief Justice, in effect, provides lower courts: You will know it when you see it.

You will know it when you see it — i.e. "I know it when I see it." Did you know "I know it when I see it" has its own Wikipedia article? You haven't given us a rule to apply, and so judges — in an inappropriately nonjudicial way — will be deciding things ad hoc.

AND: I'm going to start a new post to discuss the spending power.

ADDED: I've corrected the text to reflect that Justices Scalia, Kennedy, Thomas, and Alito are writing the dissenting opinion jointly.

Obama imposes huge tax on the American middle class.

That's the story, right? That's the spin for Romney. What's the spin for Obama?

UPDATE: Drudge points to Obama's assertion, back in September 2009 that the mandate is not a tax.

STEPHANOPOULOS: [I]t's still a tax increase.

OBAMA: No. That's not true, George. The — for us to say that you've got to take a responsibility to get health insurance is absolutely not a tax increase. What it's saying is, is that we're not going to have other people carrying your burdens for you anymore than the fact that right now everybody in America, just about, has to get auto insurance. Nobody considers that a tax increase. People say to themselves, that is a fair way to make sure that if you hit my car, that I'm not covering all the costs.

I have said repeatedly that Obama would be worse off if Obamacare were upheld, but what I'm really seeing is how bad it is for him with the mandate declared a tax.

Remember the Democrats got the statute passed by insisting it was not a tax. Now, we learn it is only constitutional because it is a tax. That's got to hurt politically.

ADDED: Romney has at least 3 big arguments:

1. Obama imposed a huge new tax on working people.

2. Obama deceived the American people by saying it was not a tax, when it was.

3. The law made it look like money would go to insurance companies — in the form of new premiums — that would keep premiums low as the companies were required to take on people with pre-existing conditions, but now we find out that the money is really going to go to the federal government. [ADDED: So get ready for your premiums to spiral up and/or for insurance companies to be ruined.]

The individual mandate survives as a tax.

Says SCOTUSblog.

CNN is getting it wrong, if SCOTUSblog is right. They're headlining "Individual Mandate Struck Down."

CNN is running on the Commerce Clause ground, apparently, and not seeing the tax power part.

At SCOTUSblog: "So the mandate is constitutional. Chief Justice Roberts joins the left of the Court."

UPDATE: John King on CNN is starting to walk back. Wolf Blitzer notes "conflicting reports from in there."

UPDATE 2: From SCOTUSblog. "The bottom line: the entire ACA is upheld, with the exception that the federal government's power to terminate states' Medicaid funds is narrowly read." From CNN: Blitzer says "let's take a deep breath... if you're watching this on Twitter... momentous... more information...."

UPDATE 3: CNN reporter showing what a big, long opinion it is — holding it up, flipping through the pages. Finally, at 9:15, she says the entire law has been upheld.

UPDATE 4: Note the important political effect of saying it's a tax (and not an exercise of the power to regulate under the Commerce Clause): People don't like taxes. Obama and the Democrats imposed a huge new tax, affecting middle class people. Wolf Blitzer calls this "a huge huge victory for President Obama," but it will be used against him, and the tax ground means a lot.

The money quote from the section on the mandate: Our precedent demonstrates that Congress had the power to impose the exaction in Section 5000A under the taxing power, and that Section 5000A need not be read to do more than impose a tax. This is sufficient to sustain it.

UPDATE 5: Based on CNN, which I don't trust, it's a 5 to 4 decision, and Chief Justice Roberts, not Justice Kennedy, was the deciding vote.

UPDATE 6: From SCOTUSblog: "The court reinforces that individuals can simply refuse to pay the tax and not comply with the mandate." Hmmm. I think that might be misstated. I'm guessing SCOTUSblog meant to say that individuals can simply refuse to comply with the mandate — i.e., buy insurance — and pay the penalty — which is accepted as a "tax" within the meaning of the taxing power. [ADDED: My guess there is correct, as SCOTUSblog has now noted.]

UPDATE 7: I still don't have the opinion, but the Commerce Clause discussion comes out on the conservative side, and that will be important doctrine. Now, possibly they simply talk about the difficulty of the Commerce Clause question and then refuse to resolve it, switching to the taxing power issue.

UPDATE 8: The spending power material about the states and Medicare is also important. Per SCOTUSblog: "The Constitution requires that states have a choice about whether to participate in the expansion of eligibility; if they decide not to, they can continue to receive funds for the rest of the program." This probably is an important new contribution to the doctrine about conditional spending, that Congress can't attach a new condition to old spending as it entices the states to agree to something they can't otherwise be required to do. That makes it much harder to lure the states into accepting conditions.

UPDATE 8: In Update 7, I said I couldn't assume that there was a resolution of the Commerce Clause issue, but I see now that there are 5 votes saying the Commerce Clause does not support the individual mandate, and: "The power to regulate commerce presupposes the existence of commercial activity to be regulated."

"Liberals plan single payer push if mandate falls."

"The Congressional Progressive Caucus will hold an 11 a.m. news conference outside the Supreme Court, along with liberal groups, to advocate for a universal, single-payer system — essentially, Medicare for everyone."

The "Stolen Valor" case — United States v. Alvarez.

From the SCOTUSblog live blog this morning in the Supreme Court:

In Alvarez, the Ninth Circuit is affirmed. Per Kennedy. His opinion is for a plurality.

The statute violates the First Amendment. Breyer and Kagan concur and conclude that the Act as presently drafted fails First Amendment scrutiny. So Congress probably could rewrite it.

"Lying was his habit" is how the opinion begins.

Alito, Scalia, and Thomas dissent.

Here's the opinion PDF.

Are Democrats skipping the Democratic Convention "trying to get away from Obama"?

Juan Williams asks Rep. Chris Van Hollen, who is appearing as a surrogate for the Obama campaign and who trots out the predictable denial:

"This has nothing to do with not going to the convention to send a message to the president, nothing of the sort. This has to do with maximizing the time you spend connecting with your constituents..."

Even if that were true, the appearance of trying to distance themselves from Obama is bad enough to provide an incentive to sacrifice a bit of time connecting with constituents in order to demonstrate support. So, obviously, Van Hollen is bullshitting.

***

I'm using the word "bullshit" more now. I hope it doesn't distress you, but ever since Jonathan Turley went all "civility bullshit" on me for saying "spare me the bullshit" to him and I started reading the excellent 72-page book "On Bullshit," I've been feeling like saying it more.

From page 16 of Harry G. Frankfurt's slim tome:

In the old days, craftsmen did not cut corners. They worked carefully, and they took care with every aspect of their work. Every part of the product was considered, and each was designed and made to be exactly as it should be. These craftsmen did not relax their thoughtful self-discipline even with respect to features of their work that would ordinarily not be visible. Although no one would notice if those features were not quite right, the craftsmen would be bothered by their consciences. So nothing was swept under the rug. Or, one might perhaps also say, there was no bullshit.

I'm re-distracted back to the Supreme Court case. I wonder how good the judicial craftsmanship will be. Will there be bullshit?

Wittgenstein once said that the following bit of verse by Longfellow could serve him as a motto:

In the elder days of art
Builders wrought with greatest care
Each minute and unseen part,
For the Gods are everywhere.

The myth that "a calorie is a calorie."

It's compelling because it sounds coolly scientific — truthy — but it's also what "Big Food" would like you to believe and it's not what actual scientific studies — not to mention personal experience — are showing. 

The Top 10 Things That Just Had to Wait Until the Last 24-Hours Before the Obamacare Decision.

No, no, no. It's not just filler. It's the last amazing thing that was finally realized, on the Eve of Destruction — or Non-Destruction or Semi-Destruction — and needed to be published right now — quick! link! read! — for the edification of the American people.

1. Scalia is a rascal. I insist that he resign! Pronto! He's been annoying Elmer J. Dionne Jr. for years. Oooh, I'm just so mad. How dare he!

2. The NYT still has Linda Greenhouse available to wheel out for special occasions. Today will probably be a "rare day" of "theater." There might be "tears of relief" or "of regret." But "whose"?

3. President Obama will need to respond to the ruling. Will it be with tears? Of relief? Or of regret? He's got 3 speeches ready. Tears of relief... tears of regret... and laughing through tears.

4. "In the end, you have to make a prediction and take responsibility for it. I believe the mandate will not be invalidated tomorrow." As The Beatles sang: And in the end, the predictions you make are equal to the responsibility you take. Aaaah aaaah....

5. "We don't know what will happen this morning. But no matter what, today is an important day to have Barack Obama's back." Email just now from the Obama campaign. Because everything is an occasion for giving money to Obama. Especially this. Transmogrify your tears of regret — or relief! — into cash for Obama.

6. A roundup — like mine right here — of all the predictable bullshit: "Obamacarians' Pregame Rationalizations: Doesn't Matter; Good for O; All Scalia's Fault, and More!"

7. Instapundit provides a roundup of last-minute links including the roundup of links that I just linked to at #6 (which I took, not from Instapundit, but from that one guy in the comments here).

8. Randy Barnett thanks everyone — whatever happens — he's happy to have at least been taken seriously. Especially by Orin Kerr, who really annoyed him.

9. What do I actually think? Should I after all this time reveal whether I think the individual mandate is constitutional? We're about to hear what the Supreme Court thinks, so what does it matter what I think? It's emphatically the province and duty of the Judicial Department to say what the law is. That's what I think. Now, if they go 5-4, liberal-conservative or conservative liberal, The Law will not have the awesome solidity We, The Children want it to have, but I'm not going to cry about it. I'm old. And I've been watching the Supreme Court for a long, long time. It's 9 human beings — could be 19, but it's 9 — trying to do something serious and complicated.

10. Oh! It's so exciting! Let's watch it unroll at the SCOTUSblog live blog, where the venerable  Lyle Denniston is saying "Good morning from a slightly zoo-like, but still surprisingly civil, press room at the Court."

At the Painted House Café...

... there's quite a feeling of progress.

"The left-leaning press should be all over this, no? Evil Big Drug Companies (PhRMA) funnel money to David Axelrod’s old ad firm..."

"... (which is still paying him for his share) even as they are negotiating with the Obama administration? Hello? Josh Marshall? Arianna? You there? Someone explain to me why this isn’t a scandal."

Facebook resets users' political views.

A mere accident, purportedly. And it only affected Facebookians who failed to identify with a party or ideology that had its own Facebook page. So if you individualized your political orientation — calling yourself, say, "a recovering bleeding heart" or a "sniveling democrublican" or some such outré invention — that might have been obliterated.

I'm guessing Facebook is working on getting individual pages to link up in various "social network" ways within the Facebook website. I'm assuming it's all for the business interests of Facebook. But perhaps the company is trying to help political parties (and causes) organize and communicate. All this idiosyncratic nomenclature cuts off the pathways of power.

This makes me wonder what I have on my Facebook page. Oh, I see. I wrote: "read my blog." But now what it says is "Other" on a separate line before what I wrote. And "Other" is hot-linked to a Facebook page for "Other," where the content is lifted from the Wikipedia article "Other":

The Other or Constitutive Other (also the verb othering) is a key concept in continental philosophy; it opposes the Same. 

"Same" and "continental philosophy" are hot-linked to other Facebook pages. So lots of linkage, plus the insane idea that I have identified myself with some damned continental philosophy concept!

The Other refers, or attempts to refer, to that which is other than the initial concept being considered. The Constitutive Other often denotes a person Other than one’s self; hence, the Other is identified as “different”; thus the spelling often is capitalized.

That's rich. And actually, accidentally sort of true, since I'm keeping out of all the established political identifications. But I don't need Facebook insinuating that I'm somebody else's not-self.

A person's definition of the 'Other' is part of what defines or even constitutes the self (in both a psychological and philosophical sense) and other phenomena and cultural units. It has been used in social science to understand the processes by which societies and groups exclude 'Others' whom they want to subordinate or who do not fit into their society. 

I am Facebook's Other! I am what Facebook wants to subordinate because I do not fit into its society/social network.

(By the way, I'm not looking for Facebook friends, so please don't ask.)

German court says a boy's right to physical integrity trumps his parents' religious interest in having him circumcised.

Jewish and Muslim groups are reportedly outraged.

"Being hungry is wonderful. The opposite of hungry, which is not hungry, is the opposite of wonderful, which is terrible."

Dr. Andrew Chung's hunger cult.

"I got the idea spontaneously.... I'm a man of science, I have a very high IQ."

"I thought, I'll get rid of it.... I have the ability to solve problems in a second."

Said the professor, explaining his thinking after he cut off his wife's lip, when he realized doctors might be able to sew it back on. She'd told him she wanted a divorce. He ate the lip.

Did the Democrats give up on class warfare?

Jonathan Martin (at Politico) says they did. He notes that Occupy Wall Street has evanesced and that Obama conspicuously avoided participating in the Wisconsin recall election.

Labor unions hoped to turn the Wisconsin recall election into a rallying cause for their ailing movement. But a Democratic president couldn’t be dragged off the sidelines for the fight.

And let me add that even the Democratic candidate in that election avoided talking about labor union matters. Tom Barrett talked — with stunning blandness — about a restoration of civility and working together.

When you get a few paragraphs into the long article, you'll see it's mostly complaints about the dynamics of campaign finance with lots of quotes from people Martin counts among the few "unapologetic populists" left in the party. But there's this nice summary:

*The political infrastructure doesn’t exist. Class-based partisan appeals by Democrats in the early and mid-20th century were typically supported by a robust and well-organized labor movement. That doesn’t exist in any similar form these days.

*Even populist politicians need money. Conspiracy theorists who believe campaign contributions drive the agenda aren’t altogether wrong. It is virtually impossible to be a successful national Democrat without relying heavily on business interests, including the financial industry, for campaign funds.

*The president, a man comfortable in elite circles, is not temperamentally inclined for the kind of sustained, rough-edged partisan combat that true populist politics requires. So, while he is tempted by populist appeals on some days, he often turns ambivalent and changes his message the next.

*Most important of all, lots of Democrats simply do not support populism, on either ideological or stylistic grounds. Many upscale Democrats believe that Washington needs less combat, not more, and populist messages strike them as irrelevant at best, demagogic at worst. Even some working-class voters have their assets in the stock market, because of their 401(k)s and IRAs, making even the most traditional of Democrats believe their interests are more in line with Wall Street than opposed.

"Do you think that the man in line behind you and the lady behind him want to buy you your cigarettes?"

The 65-year-old cashier who scolded the 20-year-old with the EBT card and refused to let him buy cigarettes.

The next day, the 20-year-old’s “foster mother” showed up at the Big Apple to complain about how her “son” had been mistreated. Jackie Whiton talked back again.

“I told her, ‘Use the money you get from the state to buy his cigarettes.’ She said, ‘Absolutely not.’ ”...

“He was very capable of working,” Jackie said, “so I told him to get a J-O-B.”

Whitton was fired.

Should Whiton have been fired?
	Yes, for talking to a customer like that, but her policy opinion is correct.
	No, she's a heroine, and all cashiers should do the same.
	Eh. It's complex. But don't fire her. Give her another chance, and fix the policy.
	Yes, and in fact customers should be allowed to buy what they want.
pollcode.com free polls

By the way, were you familiar with the term "EBT card"? Do you know what the letters stand for? (I didn't.)

"Monster wildfire rages in Colorado..."

Story... photos... video....

"Sexuality shouldn't be categorized as a high-stakes decision..."

"... like, say, a will or a major financial decision where you really need the capacity to consent to things... We're saying that sexuality is different and the way to establish consent should be different."

"Doctors’ waiting rooms are absolutely brimming these days with women suffering from low libidos."

"I have talked to a lot of young women about this, and they just don’t seem to do it any more.... Honestly, I suppose it’s because we all have so many other demands on our time now."

Many young women also feel guilty or distressed over their low libido....

So... you're so stressed about work that you don't have sex, and then you're stressed about not having sex. Stress! Stress! Stress! What do you think about all this stress as the cause and the effect of not having sex? It strikes me as a shallow and lame explanation for things.

I tend to think that the reason people are doing whatever they are doing is because it's what they want to do. There's something irrational about saying I don't want to do what I don't want to do. Or, to turn it around, I want to want something. If you want it, you want it. If you don't, you don't. Start there. Too busy? Hopeless!

Post-gastric-bypass surgery, prisoner needed much more time to eat and now he's suing for $80 million.

At Rikers Island, they only give you 4 minutes to eat, but in his condition, Michael Isola needed to chew and swallow slowly. Speed-eating led to vomiting and — he says — the separation of his stomach from his intestine. And extreme weight loss.

"If Madi­son was such a Cre­ative Class hotbed over­flow­ing with inde­pen­dent, post-industrial work­ers like myself, we should have fit in."

"Yet our pres­ence didn’t seem to mat­ter to any­one, cre­atively or oth­er­wise. And any­way, Madison’s economy was hum­ming along with unem­ploy­ment around four per­cent, while back in fun, cre­ative Port­land, it was more than twice that, at eight and a half per­cent. This was not how the world accord­ing to Florida was sup­posed to work. I started to won­der if I’d mis­read him. Around town I encoun­tered a few other trans­plants who also found them­selves scratch­ing their heads over what the fuss had been about. Within a cou­ple years, most of them would be gone."

From "The Fall of the Creative Class," by Frank Bures. "Florida" is Richard Florida, author of "The Rise of the Cre­ative Class," who theorized that artists (and gay people and immigrants) cause economic growth, so a city that wants economic expansion ought to adopt a strategy of attracting artists.

Via Ernst Stavro Blofeld.