At first glance, Tuesday's DC Circuit Court of Appeals ruling looks like a slam-dunk win for defenders of the Affordable Care Act. A closer look suggests that the law's defenders have yet to come up with a strong response to their opponents' most effective arguments.

The opinion was written by Ronald Reagan appointee Lawrence Silberman and joined by Jimmy Carter appointee Harry Edwards. The dissenting opinion from George W. Bush appointee Brett Cavanaugh avoids arguing the legal merits of the challenge, instead arguing that the courts don't have jurisdiction to decide the case before the law goes into effect. The key paragraph in Silberman's opinion comes towards the end, as he notes previous historic instances in which regulation considered "intrusive" by opponents were upheld:

It certainly is an encroachment on individual liberty, but it is no more so than a command that restaurants or hotels are obliged to serve all customers regardless of race, that gravely ill individuals cannot use a substance their doctors described as the only effective palliative for excruciating pain, or that a farmer cannot grow enough wheat to support his own family. The right to be free from federal regulation is not absolute, and yields to the imperative that Congress be free to forge national solutions to national problems, no matter how local–or seemingly passive–their individual origins.

Conservatives have argued that the mandate forces individuals who would otherwise not buy health insurance to engage in commercial activity. The government points out that since everyone ultimately seeks medical treatment, the distinction is meaningless. Silberman, like previous judges who have upheld the ACA's individual mandate, argues that the "activity/inactivity" distinction doesn't fit with prior legal precedents establishing the authority of Congress to regulate interstate commerce under the Constitution.

What the law's critics will seize on, however, is Silberman's observation that although the government argues that "the Government does stress that the health care market is factually unique," it "concedes the novelty of the mandate and the lack of any doctrinal limiting principles."

While "novelty" isn't inherently an issue when it comes to the constitutionality of a given law, the "lack of any doctrinal limiting principles" is the most powerful argument critics of the ACA have, the idea that if the government can force you to buy health care, it can force you to do anything. Silberman describes this argument as "troubling, but not fatal," because of prior legal precedent supporting the ACA. The law's defenders unquestionably have legal precedent on their side. But its opponents have an incredibly effective political argument based on constitutional first principles. 

The reason politics may matter more than legal precedent is simply that judges, for all the pretense and rhetoric about faithfully interpreting the law, are political actors with their own personal ideologies. More importantly, although the Supreme Court has only rarely favored those seeking to limit the government's power under the Commerce Clause, it has done so recently when government lawyers were unable to articulate any "doctrinal limiting principles" on the government's authority. UCLA Law Professor Adam Winkler refers to this as the "gotcha question," essentially arguing that the government's inability to "articulate meaningful limits on Congress' power" may prove to be the law's undoing. 

Despite the ACA's decisive victory on the DC Circuit, Silberman's ruling shows that the law's defenders clearly haven't figured out how to do that yet. Although that may not be a "fatal" flaw in Silberman's view, the conservative Supreme Court Justices the government needs to persuade are likely to feel differently.

As Ohio voters head to the polls to cast ballots on two much-anticipated referendums—Issue 2, a referendum to repeal Gov. John Kasich's anti-union law, and Issue 3, a constitutional amendment to block the Affordable Care Act's individual mandate—a conservative outside spending group is blanketing the state with misleading robocalls that could potentially hurt turnout. 

The calls, funded by the Iowa-based American Future Fund, urge Ohioans to vote yes on Issues 2 and 3 on Wednesday—Election Day is Tuesday—to uphold Kasich's law and pass the constitutional amendment. The message was received around 9:30 am Tuesday by an Ohio resident and employee of the Services Employees International Union, who recorded the message. The SEIU employee, Josh Schafer, said the caller ID listed the number the call originated from as "000-000-0000."

Here's the script of the call, followed by the audio itself:

Hi, I'm calling to remind you that tomorrow is Election Day. It is critically important that you go vote to protect the future of our country. Tomorrow, please go to the polls and vote yes on Issue 2 and vote yes on Issue 3. Paid for by American Future Fund and not authorized by any candidate or candidate's committee. 866-559-5854.

American Future Fund Nov. 8 Ohio Robo-call (mp3)

A 501(c)(4) non-profit, the American Future Fund, which spent $25 million in the midterms, can raise unlimited funds and does not have to disclose its donors. As a so-called "social welfare" organization, the group can engage in pure political advocacy but cannot make it the majority of what it does. During his 2010 re-election campaign, Rep. Bruce Braley (D-Iowa) revealed that AFF's official listed address was in fact a mailbox at a UPS store in Des Moines, Iowa.

This isn't the first time the American Future Fund has fudged the truth in its messaging. found that four of AFF's ads targeting the federal health care reform bill featured false or misleading information.

The American Future Fund did not immediately respond to a request for comment. We'll update this post if and when we hear back.

[UPDATE]: A spokeswoman for the American Future Fund told Politico the erroneous phone call was the result of "gross incompetence by our phone vendor." The spokeswoman, Mandy Fletcher Fraher, added, "If they don't get a live caller, the person gets a recorded message and our phone vendor produced that message. Obviously, we support Issues 2 and 3. It was not intended to be misleading."

The blog Blue Virginia flags what is possibly the most offensive mailer of this election season. The mailer targets Patrick Forrest, an openly gay Republican candidate for state Senate in the 32nd district of Virginia. It's not exactly subtle:

The mailers claim to come from the group Our Heritage USA, which as Blue Virginia notes, doesn't exist in any of the state or federal election databases. The address it lists is this parking lot in Lynchburg:

Given his own financial difficulties, should Mark Block really be trusted?

Herman Cain's first response to Tuesday's allegation of sexual assault from a former National Restaurant Association employee was to blame the media for distracting America's attention from his 9-9-9 tax plan. Within a few hours, he'd apparently reconsidered this tactic, and tried a new one: The accuser, Sharon Bialek, can't be trusted because she went broke a couple times. As spokesman J.D. Gordon argued in a statement, "his opponents convinced a woman with a long history of financial difficulties, including personal bankruptcy, to falsely accuse the Republican frontrunner of events occurring over a decade ago for which there is no record, nor was there ever even a complaint filed."

If Gordon has any evidence that any of Cain's opponents were behind anything that's happened in the last week—and Bialek's allegations specifically—he hasn't managed to produce it. But more absurd is the implication that Bialek shouldn't be trusted simply because she's had a shaky financial history. (The New York Post's Andrea Peyser, taking Gordon's statement to its logical conclusion, called Bialek a "gold digger" on Tuesday.)

Ignoring the fact that most of the two million Americans who file for person bankruptcy each year aren't compelled, as a consequence, to then make unsubstantiated allegations of sexual assault, the "broke people can't be trusted" card is an odd one for Cain to play given the individuals he happens to surround himself with. For instance, here's a sentence I pulled totally at random from an Associated Press story about Herman Cain's chief of staff, Mark Block: "Records show Block has faced foreclosure on his home, a tax warrant by the Internal Revenue Service and a lawsuit for an unpaid bill. He also acknowledges he was arrested twice for drunken driving." The story also mentions that after dropping out of politics, Block went broke and was forced to stock shelves at Target.

Given Block's long history of financial difficulties, including racking up $62,000 in debt with his non-profit, going broke, receiving a tax warrant from the IRS, and foreclosure scare, can we really trust him to tell the truth to the American people?

(Alternatively, perhaps nitpicking over Bialek's personal finances is a total non-sequitur. Just throwing that out there.)

Islamic State of Iraq Flag

As I wrote last week, the appearance of a flag used by Al Qaeda in Iraq flying over a Benghazi courthouse has caused some anxiety over the extent of extremist sympathies among rebels in Libya.

A similar flag—which Brandeis researcher Aaron Zelin identifies as being associated with the Islamic State of Iraq, an umbrella organization of jihadists that includes al-Qaeda's Iraqi franchise—has been popping up elsewhere in the region. This second flag has been described in some quarters as cause for concern and been greeted with outright hysteria in others. Earlier this morning, the Clarion Fund, a conservative organization where current Mitt Romney adviser and former Lebanese Forces member Walid Phares serves on the advisory board, sent out an email warning that Al Qaeda "had seized control of Libya."

Writing at Foreign Policy, Will McCants, a former State Department counterterrorism adviser, says that the flag's "appearance in Benghazi certainly raises questions about the sympathies of some within the movement that ousted Muammar al-Qaddafi, adding to widespread reports of fighters sympathetic to al Qaeda among the rebels." But he cautions against reading too much into the use of the flag:

[T]he appearance of the flag in other Arab countries is not necessarily evidence of growing support for al Qaeda or terrorist group's presence. It could just as easily be youth taking advantage of their newfound freedom to scare their elders, or repressed Salafis using the most shocking symbol possible to voice their anger in public. There is also an element of "Wish You Were Here" photography to many of the photos of the ISI's flag being unfurled around the Arab world and posted in jihadi forums. This is not to say that the appearance of the flags, particularly in protests, should be ignored. But more corroborating evidence is needed before hitting the panic button.

Former Libyan Islamic Fighting Group member and rebel commander Abduljawad Bedeen also downplayed the presence of the black flags, telling Reuters that, "First of all, al-Qaeda doesn't even have an official flag. And just because they've used a similar one doesn't mean they have exclusive rights to it...If they were to send people here they would have a very, very weak presence...I don't think the Libyan people would accept it." Although the words of a former LIFG member could be dismissed as mere spin, Libya expert Ronald Bruce St John told me something similar last week. 

In the spirit of avoiding the panic button, it's worth recalling Osama bin Laden's 2004 message in which he bragged that "All that we have to do is to send two mujahidin to the furthest point east to raise a piece of cloth on which is written al-Qaida, in order to make the generals race there to cause America to suffer human, economic, and political losses without their achieving for it anything of note other than some benefits for their private companies."

On Tuesday, Mississippi asked voters to decide whether or not to ban all abortions and many forms of contraception. The voters said no. But if anti-abortion groups get their way, there will be a host of similar measures on the ballot in 2012.

Efforts are underway in at least six states to adopt similar laws via constitutional amendments, according to NARAL Pro-Choice America, which is tracking the initiatives. The specific language varies from state to state, but all of the measures seek to redefine human life as beginning at conception. (And as my colleague Nick Baumann reports today, federal lawmakers are also circulating similar measures.)

Four UH-60 Black Hawk helicopters provide air support for soldiers conducting an air assault exercise as part of the Full Spectrum Training Event in Hohenfels, Germany, October 14, 2011. The UH-60 crews are assigned to the 12th Combat Aviation Brigade-Europe. US Army photo by Richard Bumgardner.

Tablet's Lee Smith thinks "moderate Islamist" is an oxymoron, and that the "moderates" are "more dangerous than the extremists by a matter of magnitude."

Indeed, “moderate” is a word that gets thrown around recklessly when it comes to the Islamist groups that comprise this new Muslim Brotherhood crescent. Consider the leader of al-Nahda, Rashid Ghannoushi, who, after many years of exile, may well be Tunisia’s next prime minister. He is routinely described as a moderate, even though he has praised the mothers of suicide bombers and believes that the “region will get rid of the germ of Israel.”

Perhaps to better understand the term “moderate” we might consider Islamist parties in the context of how they exercise power in their local environments. Where Osama Bin Laden spoke of a revived caliphate that would unite the umma, Islamists like Ghannoushi, Erdogan, and the Muslim Brotherhood are focused on their own national projects. Extremist Islamist outfits like Bin Laden’s original al-Qaida live in caves and rely on the support of Middle Eastern governments in order to accomplish operations like blowing up planes. So-called moderate Islamist parties, on the other hand, win electoral contests that leave them in charge of Middle Eastern governments, security services, and militaries with artillery, tanks, air forces, and navies.

It's not all that useful to use fuzzy feelings towards Israel as a way to discern the "moderation" of Islamists.

Unfortunately, everyone in the region pretty much hates Israel, Islamist or otherwise. A 2010 Zogby International poll found that 70 percent of citizens in Egypt, Jordan, Lebanon, Saudi Arabia, the United Arab Emirates and Morocco sympathized with both Hamas and Fatah "to some extent." Seventeen percent of responsdents cited Hamas leader Khalid Meshaal when asked which Palestinian leader they "admire most." (Current Palestinian President Mahmoud Abbas got just 15 percent.) This is despite the fact that Hamas has used suicide terrorism as a tactic against Israel.

It seems almost too obvious to write, but people in the Middle East see the Israeli-Palestinian conflict in a very different light than people in the US, and as a result it's a poor way to evaluate ideological moderation on other issues. 

A more useful gauge of the "moderation" of Islamists would be their willingness to accept democratic institutions and checks on government power that allow minorities and women to be secure in their rights. Tunisia's Ennahada appears moderate in that respect so far, having pledged not to seek a greater role for religion in Tunisia's new constitution. That makes them more moderate than say, Egyptian Salafists knifing Christians in the street. Although the degree to which new governments will actually be in control of the military in countries like Egypt remains a really open question, Islamist parties that win elections that leave them in charge of modern militaries will nevertheless also be accountable to their voters for how they use them.

Undocumented immigrants in Alabama are fighting back against the state's harsh immigration law—by getting organized.

Last weekend, pro-immigrant activists from the South and beyond headed to the poultry-processing hub of Albertville, located some 75 miles northeast of Birmingham, for a workshop meant to help Alabama's immigrant communities deal with HB 56, the restrictive law that has drawn comparisons to (and in some ways surpassed) Arizona's SB 1070. Albertville, home to many undocumented Latino immigrants who work at local Tyson, Pilgrim's Pride, and Wayne Farms plants, has become a hotspot for immigrant organizing.

The workshop, sponsored by the National Day Laborer Organizing Network and the Southeast Immigrants Rights Network (SEIRN), was based on the Barrio Defense Committee model first introduced in Arizona last year. The idea is simple: train communities to communicate better, know their rights, and have a plan in place should an immigration raid occur. According to NDLON's Marisa Franco, the trainings are all about "lifting up these people's courage." "These laws unleash the ugliest part of this country," she said. "It really opens the door for people to treat each other in a really horrible way. We want to create a space for people to find each other and know 1) we're not alone and 2) we actually have some ways to defend ourselves."

Earlier this year, Maine's legislature passed a law that requires drug testing for welfare recipients who have felony drug convictions. But now first-term Republican Gov. Paul LePage wants to amp that law up further by mandating random drug testing for all welfare recipients, Maine Today reports:

"I'm going to ask the Legislature to allow us to do what every truck driver in the United States of America has to do, take a random test," he said. "I think if we're going to take our own limited resources, we ought to be able to test 'em on occasion."

The comments came at a business chamber breakfast in Jay, where LePage gave an overview of accomplishments from the last legislative session and previewed some of his goals for the new year.

Never mind that random drug testing might be illegal:

Robyn Merrill of Maine Equal Justice, which provides legal services for the poor, said random drug-testing programs in other states have been found to be unconstitutional. She said that's why a bill that would have required random drug testing for MaineCare recipients did not pass earlier this year.

"Random drug testing is very questionable legally with respect to constitutional issues," she said. "If the government has the right to drug-test people based on receipt of aid from public assistance programs, what is to stop the government from requiring drug testing for anyone who receives a student loan or any other government benefit?"