2012 - %3, June

Obamacare Ruling Doesn't Limit Congress Much

| Thu Jun. 28, 2012 8:12 AM PDT

Since the Supreme Court did rule that the Commerce Clause isn't sufficient to justify the individual mandate, it's reasonable to wonder just how big a restriction that places on Congress. This is a tentative judgment, but I agree with Tom at SCOTUSblog:

Here is the money quote on the fifth vote to hold that the mandate is not justified under the Commerce Clause (recognizing that doesn't matter because there were five votes under the Tax Power): "The power to regulate commerce presupposes the existence of commercial activity to be regulated." That will not affect a lot of statutes going forward.

The ruling didn't set out any kind of concrete limiting principle, as I was hoping. It simply explained the activity/inactivity distinction. So to the extent that this sets any precedent, it's only that Congress can't force people to engage in commerce. That's not something Congress has done before or is likely to need to do in the future. The taxing power is sufficient for most purposes, and existing precedent on the Commerce Clause, which allows Congress nearly unlimited power to regulate existing commerce, is sufficient for the rest. So I doubt this decision will have much real effect on future lawmaking. It will be pretty easy to write nearly any kind of legislation to stay inside the court's new rules.

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John Roberts Says: If it Walks Like a Tax and Quacks Like a Tax, It's a Tax

| Thu Jun. 28, 2012 7:58 AM PDT

Here is the relevant section of Chief Justice John Roberts' majority decision upholding the individual mandate as a tax:

It is well established that if a statute has two possible meanings, one of which violates the Constitution, courts should adopt the meaning that does not do so.....If the mandate is in effect just a tax hike on certain taxpayers who do not have health insurance, it may be within Congress’s constitutional power to tax.

The question is not whether that is the most natural interpretation of the mandate, but only whether it is a “fairly possible” one. As we have explained, “every reasonable construction must be resorted to, in order to save a statute from unconstitutionality.”

....It is of course true that the Act describes the payment as a “penalty,” not a “tax.”....That choice does not, however, control whether an exaction is within Congress’s constitutional power to tax. [A bit of analysis follows about past precedent that controls whether something is really a tax or not.]

....The same analysis here suggests that the shared responsibility payment may for constitutional purposes be considered a tax, not a penalty: First, for most Americans the amount due will be far less than the price of insurance, and, by statute, it can never be more....None of this is to say that the payment is not intended to affect individual conduct. Although the payment will raise considerable revenue, it is plainly designed to expand health insurance coverage. But taxes that seek to influence conduct are nothing new.

Yes indeed. Taxes are designed to influence conduct all the time. That's nothing new.

Roberts Bought the Commerce Clause Kool-Aid

| Thu Jun. 28, 2012 7:46 AM PDT

This is from the syllabus of the Obamacare decision:

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. Congress already possesses expansive power to regulate what people do. Upholding the Affordable Care Act under the Commerce Clause would give Congress the same license to regulate what people do not do. The Framers knew the difference between doing something and doing nothing.

That's Chief Justice John Roberts. He bought the activity/inactivity Kool-Aid completely. What's ironic, of course, is that whatever else you think of the law, the framers of the Constitution very decidedly didn't know the difference between doing something and doing nothing. At least, they didn't mention anything about this in the actual Constitution they wrote. That's a distinction invented in the 21st century, not the 18th.

Individual Mandate Upheld Under Taxing Power

| Thu Jun. 28, 2012 7:09 AM PDT

10:08: The individual mandate has been struck down but survives as a tax. Say what? More in a moment.

10:10: Wait a second. SCOTUSblog says the mandate is constitutional, with Chief Justice Roberts joining the court's commies. The Medicaid provision is "limited but not invalidated."

10:13: 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."

10:15: CNN reads a piece from the decision, written by Roberts. Says the mandate is upheld under Congress's taxing power.

10:16: CNN now agrees that the entire law has been upheld.

So I wonder what the decision says about Congress's Commerce Clause power? Did they define some kind of limiting principle? Or just punt? More in a moment.

10:19: So apparently this is a 5-4 decision, with Roberts voting to uphold Obamacare and Kennedy voting to overturn. Who would have predicted that?

10:22: SCOTUSblog excerpts this from the section of the decision on Medicaid expansion: "Nothing in our opinion precludes Congress from offering funds under the ACA to expand the availability of health care, and requiring that states accepting such funds comply with the conditions on their use. What Congress is not free to do is to penalize States that choose not to participate in that new program by taking away their existing Medicaid funding."

10:24: Sure enough, CNN confirms that it's Roberts and the liberals voting to uphold, with Kennedy and the conservatives voting to overturn. Everyone figured that Roberts might jump to the liberal side if Kennedy also did so, in order to make it a 6-3 decision and give himself the job of writing the decision. But no. This should be good for about a million words of Kremlinology.

10:28: Time's Michael Crowley tweets: "Friend who worked in House D leadership chuckles at memory of how hard Dems strained to ensure mandate was not seen as a tax."

10:30: Wow. Apparently the minority believes the entire act is unconstitutional, lock, stock and barrel. Maybe that's why Roberts defected. He might have been up for overturning the mandate, but not the entire law.

10:33: Amy Howe of SCOTUSblog summarizes the ruling: "The Affordable Care Act, including its individual mandate that virtually all Americans buy health insurance, is constitutional. There were not five votes to uphold it on the ground that Congress could use its power to regulate commerce between the states to require everyone to buy health insurance. However, five Justices agreed that the penalty that someone must pay if he refuses to buy insurance is a kind of tax that Congress can impose using its taxing power. That is all that matters. Because the mandate survives, the Court did not need to decide what other parts of the statute were constitutional, except for a provision that required states to comply with new eligibility requirements for Medicaid or risk losing their funding. On that question, the Court held that the provision is constitutional as long as states would only lose new funds if they didn't comply with the new requirements, rather than all of their funding."

10:34: Needless to say, this ensures that Obamacare will be a gigantic political football during campaign season. That will definitely electrify the tea party base, which I guess is good for Romney. Not sure yet what the other political implications are.

10:38: From a friend: "Man, the right is going to turn on Roberts now. He's going to be the new Souter." No kidding. Roberts is about to become Public Enemy #1 on Fox News.

Supreme Court Hands Down Decision!

| Thu Jun. 28, 2012 7:03 AM PDT

The Supreme Court has overturned the Stolen Valor Act by a vote of 6-3. So we can all go home now, right?

I Would Very Much Like To Murder This TV Show Savagely, Please

| Thu Jun. 28, 2012 4:45 AM PDT
President Bartlet's son, mind you.

It was difficult for me to finish writing my review of Anger Management because every time I think about the show I see a hot flash of red, the veins in my neck tighten, and I wake up hours later, covered in entrails, in a location I've never been to before.

Anger Management (premiering Thursday, June 28 at 9 p.m. EST on FX) is a loose adaptation of the 2003 Jack Nicholson/Adam Sandler comedy of the same name—a film that precisely no one was asking to be adapted into a TV show. The new laugh-track-laden sitcom stars Charlie Sheen. Remember? Sheen? Charlie? Hot Shots! Part Deux? Charlie Sheen?

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The Obamacare Ruling I'd Like to See

| Wed Jun. 27, 2012 10:11 PM PDT

I have no idea how the Supreme Court will rule on Thursday in the Obamacare case. So instead I'll tell you how I'd rule.

You probably figure that's easy: I'd vote to uphold the law. And you're right. I would. But I'd go a step beyond that, because I think the justices really do owe it to Congress and the rest of us to articulate a limiting principle that defines the scope and reach of the Commerce Clause.

To explain this, let's back up a bit. As most everyone knows who's been following this case, the Obama administration contends that the Commerce Clause gives Congress the authority to implement an individual mandate that requires everyone in the country to buy health insurance if they don't already have it. In a nutshell, the argument is this: (a) the healthcare market is clearly interstate commerce, (b) Congress has the power to regulate interstate commerce, therefore (c) Congress has the right to regulate the healthcare market, and (d) the mandate is part of a reasonable legislative scheme for regulating healthcare.

Critics, however, argue that forcing people to purchase a commercial product goes beyond Congress's power. The problem is this: there's simply nothing in the text of the Constitution, or in prior precedent, that makes this distinction. The Constitution says Congress has the power to regulate commerce "among the several States." It doesn't say Congress has the power to regulate commerce "among the several States as long as nobody is ever required to buy something." Suddenly plucking this distinction out of thin air without a shred of prior warning, just in time to overturn a major piece of legislation that conservatives happen to dislike, would be outrageously partisan.

But what should be the limit on Congress's commerce power? In Wickard vs. Filburn, which has controlled Commerce Clause jurisprudence since 1942, the court was asked to decide whether Congress could bar a farmer from growing wheat for his own use. The Roosevelt administration argued that even though this was obviously activity within a single state, it affected the amount of wheat the farmer bought on the national market — a market that Congress had the right to regulate. So unlike the Obamacare case, where there's really no conflict with the text of the Constitution to begin with, Wickard clearly required a court ruling. The black letter text of the Constitution gives Congress the power to regulate only interstate commerce, and the question at hand was precisely whether Wickard's private wheat crop did, in fact, constitute a meaningful impingement on interstate commerce. The court had to address this question, and it ruled that Wickard's private activity did indeed affect interstate commerce and that therefore Congress had the authority to regulate it.

How Wall Street Shakes Down Every City in America

| Wed Jun. 27, 2012 2:45 PM PDT

As long as I'm recommending long form magazine pieces, here's another one: Matt Taibbi's latest in Rolling Stone, "The Scam Wall Street Learned From the Mafia." I have a mixed view of Taibbi: some of his pieces are great, others are overwrought and depend more on his trademark expletives than on really getting the goods. This one is the former. On one level, it's a granular look at a single Wall Street corruption trial that accomplished little except putting a few small-time operators behind bars; at another level, it demonstrates that the corruption on trial pervaded Wall Street's entire business model for a decade, with no one in the executive suites ever paying a price for it. Worth a read.

Feds Grant Approval for Southern Portion of Keystone XL

| Wed Jun. 27, 2012 2:20 PM PDT

Not long after delaying the approval of the Keystone XL, President Obama announced that the administration is expediting consideration of permits for the pipeline's southern portion. And that's exactly what happened on Wednesday, according to the New York Times:

The Army Corps of Engineers on Monday told TransCanada, which wants to build a 1,700-mile pipeline to carry heavy crude from Alberta to the Gulf Coast, that it could begin construction on the portion of the proposed pipeline that would end at the gulf port of Nederland, Tex. The Corps of Engineers is still reviewing permits for a section of the pipeline beginning at a major oil depot in Cushing, Okla., and linking up with the final leg ending at the gulf.

Nebraska is still working out an alternative route around sensitive ecosystems in the state, and there's still quite a lot of opposition there to building it at all. But in the meantime, the other half of the pipeline is moving ahead full steam.

What You Don't Know About Fast & Furious

| Wed Jun. 27, 2012 12:46 PM PDT

A few days ago I wrote a short post about the Fast & Furious affair. I said I'd followed it only from afar, the whole thing seemed sort of ridiculous, and I never planned to write about it again.

But at the time, I assumed that I at least knew the basics: F&F was a program run by the Phoenix branch of the ATF in which they deliberately allowed "straw" purchasers to buy guns, hoping to later track those guns to the drug lords and other higher-ups who used them to arm their gangs. Then, via rank incompetence, ATF lost track of the guns, one of which was eventually used to kill ATF agent Brian Terry.

But Fortune's Katherine Eban has a long piece about F&F in this week's issue, and if she's even close to right, then everything I thought I knew was wrong. F&F wasn't a gun walking operation. Nobody deliberately allowed guns to be shipped to Mexican drug lords. Nobody stupidly lost track of the guns. It just didn't happen.

Eban's story is too long and detailed to be excerpted, but when I started reading I couldn't stop. My mouth was hanging open the whole time. The real story, according to Eban, is about weak laws, incompetent prosecutors, juvenile bickering within the ATF's Phoenix division, a CBS reporter who basically got played, and a craven bunch of managers and politicians who decided to throw the operation under the bus because it was too politically risky to just tell the truth. If you have even the slightest interest in this case — I'm talking to you, Jon Stewart — you need to read Eban's story. Now.

Here's the link again: The truth about the Fast and Furious scandal