Mojo - March 2012

Supreme Court Probably Won't Punt on Health Care

| Mon Mar. 26, 2012 2:43 PM EDT

The fate of the Affordable Care Act will likely be decided before the 2012 election, as the first day of much-anticipated oral arguments at the Supreme Court concerning Obamacare showed the justices wary of the case for delaying a ruling. 

With the chambers crowded with journalists, lawyers, advocates, politicians, and legal tourists—as protesters milled about outside the court—the question before the court on Monday was whether the Tax Anti-Injuction Act, which tries to limit lawsuits by forcing Americans to wait until they have paid a given tax before suing to overturn a tax-related law, ought to apply to the individual mandate provision of the ACA, a part of the health care reform measure that doesn't take effect until 2014. Under the individual mandate, if a covered person does not obtain health insurance, he or she must pay a penalty. If this fee is considered a tax under the Tax Anti-Injunction Act, then it can't be challenged until it is levied upon someone.

The Obama administration chose not to make this case for putting off a ruling. Instead, the task fell to attorney Robert Long, who was invited by the justices themselves to argue the position (because this issue had been raised in a lower court decision now being reviewed as part of the justice's consideration of the constitutionality of the ACA). Long took a pounding from the black-robed jurists. Even the Democratic appointees on the court appeared skeptical that the individual mandate to buy health insurance was a tax covered by the Tax Anti-Injunction Act. 

"Aren't you trying to rewrite the statute in a way?" Justice Elena Kagan asked Long, suggesting he was stretching the definition of a tax.

"I would not argue that this statute is a model of clarity," Long grumbled. The audience in chambers erupted in laughter. Justice Ruth Bader Ginsburg, another Democratic appointee, sharply rebutted Long's argument, referring to the mandate as a "must-buy requirement," not a tax.

"The Tax Anti-Injunction Act does not apply to penalties that are designed to induce compliance with the law rather than to raise revenue," Ginsburg said. "And this is not a revenue-raising measure, because, if it's successful, they won't — nobody will pay the penalty and there will be no revenue to raise."

This reasoning seemed to represent a major blow to anyone hoping Obamacare could escape Supreme Court review this year on the basis of the "it's-a-tax" argument.

Solicitor General Donald B. Verilli Jr. had a complicated argument. He maintained that the individual mandate is not a tax covered by the Tax Anti-Injunction Act, but that the mandate is authorized under the federal government's taxation power in the Constitution. This position reflected the Obama administration's desire to avoid having Obamacare be depicted as an outright tax. It drew needling from conservative and moderate justices. 

"Today you are arguing it is not a tax, tomorrow you will be here arguing that it is a tax," Justice Samuel Alito, a Republican appointee, said to Verilli. When Verilli argued that Americans could not be punished for not purchasing health insurance beyond being hit with the mandate-imposed "tax," Justice Stephen Breyer dryly observed, "why do you keep saying 'tax'?" The audience chuckled both times.

The justices seemed clear that they would not duck the historical moment by avoiding a ruling on Obamacare under what might be called a tax dodge. Judging by their remarks, the Obama administration is likely to see a verdict on its signature domestic program prior to the November election. But there's still no telling what that verdict might be.

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Montana Senate Race Turning Into the Most Expensive Thing Ever

| Mon Mar. 26, 2012 2:28 PM EDT
Sen. Jon Tester (D-Mont.)

There were two big stories out of Montana this weekend. First things first: They finally caught Bigfoot.

The second story, of perhaps more national significance, comes from Mike Dennison of the Helena Independent-Record, who reports that, thanks in part to a handful of recent Supreme Court rulings, the state has been buried by a deluge of attack ads ahead of Novemeber's US Senate race. As of early March, outside groups like Karl Rove's Crossroads GPS and the 60 Plus Association have spent more than $3 million on advertisements targeting either incumbent Democrat Tester, or his GOP challenger, Rep. Denny Rehberg (rhymes with "Freebird"). There's a lot at stake: The race could determine which party controls the upper chamber come 2013.

That $3 million is for television advertisements alone—to say nothing of radio, newspaper, and smoke signals. And in Montana, your $3 million goes a long, long way: A Montana gubernatorial candidate recently explained to the Missoulian that "It costs $150,000 to $175,000...to get one message across (the state), so 80 to 90 percent of (TV viewers) will see it six to eight times." So with that as our blueprint, it's not all that unreasonble to suggest that your average Montanan has been exposed to at least 137 iterations of ads like this:

And it's still only March. This is your campaign finance system on drugs.

Catholic Bishops Lose a Big Battle Over Contraception

| Mon Mar. 26, 2012 1:16 PM EDT
Yes, we know this isn't how Catholic bishops actually dress.

For the past several months, the US Conference of Catholic Bishops (USCCB) has been waging war on the Obama administration over reproductive health care, declaring it no less than a battle over religious freedom. But on Friday, a federal judge ruled against the bishops in a fight over whether the group could impose its views on contraception and abortion through its control of taxpayer dollars.

For the past six months, the bishops have complained very publicly that the administration is anti-Catholic and biased against religious groups because it refused to renew a contract with the group to provide services to victims of human trafficking. The bishops had been administering virtually all the federal money allocated for such services, about $3 million a year, doling it out to subcontractors who served victims all over the country. The USCCB had prohibited the contractors from using the federal funds to pay for staff time to counsel victims on contraception or abortion, or to refer them for such services. (Federal money can't be used to pay for abortions except in the most extreme instances, but it can pay for contraception.)

In 2009, the ACLU sued the Department of Health and Human Services, arguing that such rules violated constitutional prohibitions on mixing church and state. Last fall, while the case was still pending, the Obama administration decided not to renew the bishops' contract, largely because the bishops refused to provide those key reproductive health services that are frequently needed by victims of trafficking. The decision set off a firestorm in Congress, where House Republicans accused the administration of bid-rigging and violating the bishops' religious freedom during a marathon oversight hearing in December.

But on Friday, a federal judge in Massachusetts essentially validated the Obama administration's position, ruling in favor of the ACLU in the lawsuit over the contract. Even though the bishops no longer have the contract, they had joined with the ACLU in asking the judge to rule in the case to settle the constitutional issues. US District Judge Richard Stearns explained why the bishops were in the wrong. He wrote:

To insist that the government respect the separation of church and state is not to discriminate against religion; indeed, it promotes a respect for religion by refusing to single out any creed for official favor at the expense of all others…This case is about the limits of the government's ability to delegate to a religious institution the right to use taxpayer money to impose its beliefs on others (who may or may not share them).

Stearns also cited an earlier Supreme Court ruling that found that the framers "did not set up a system of government in which important, discretionary governmental powers would be delegated to or shared with religious institutions." The judge's ruling is potentially a big one: It calls into question the entire basis of the federal faith-based contracting initiative, implemented by George W. Bush, which gave tremendous power to groups like USCCB over taxpayer dollars. Stearns found, in fact, that it was USCCB that was making the decisions about how the federal anti-trafficking law should be administered—a job that properly rests with the government, not the church.

USCCB was clearly unhappy with the ruling. Sister Mary Ann Walsh, the USCCB's spokeswoman, said in an email, "The USCCB is disappointed by the decision and is likely to appeal. The decision seems to ignore the right of free expression of one's religious beliefs."

ACLU Senior Staff Attorney Brigitte Amiri said in a statement after Friday's ruling:

"The court is right to insist that organizations receiving government funding cannot use their religion as an excuse to discriminate and withhold crucial services from victims of human trafficking. The court's decision ensures that people who have been forced into horrific circumstances will have access to all necessary services—including reproductive health care—to rebuild their lives."

Sanford PD Has Trayvon Killer's Gun

| Mon Mar. 26, 2012 1:10 PM EDT

George Zimmerman is free to walk the streets of Sanford, Florida. But the gun he used to shoot and kill 17-year-old Trayvon Martin is in police hands, Mother Jones has confirmed.

A spokeswoman for the city of Sanford says that the Sanford Police Department took into evidence the gun that Zimmerman, a neighborhood watch captain, fired at Martin on February 26. That was the day that Zimmerman had called 911 to report "a real suspicious guy" clad in a hoodie, who turned out to be a kid walking home from a nearby 7-Eleven with a bag of Skittles and a can of iced tea. Zimmerman's pursuit of Martin led to a physical altercation between the two, wherein Zimmerman shot and killed Martin. Zimmerman's lawyers claim it was an act of self-defense, despite mounting evidence to the contrary.

One month has passed since Martin's killing, which has since ignited a national controversy. To mark the sober anniversary, the Brady Center To Prevent Gun Violence, a leading gun control group, blasted out a press release: "GEORGE ZIMMERMAN STILL HAS HIS GUN AND HIS LICENSE TO CARRY AND USE IT." That's half-right. Zimmerman no longer possesses the gun he used to kill Martin. But he still has a permit to carry a concealed weapon—and, thanks to Florida's gun laws, he still has the right to buy a new handgun instantly and travel to 35 other states while packing heat.

We're Still at War: Photo of the Day for March 26, 2012

Mon Mar. 26, 2012 12:10 PM EDT

Becky Welch, widow of 1st Lt. Robert F. Welch, takes a moment to remember at the Memorial Dedication and Fallen Hero Ceremony, on March 9, 2012. 1st Lt. Welch died last year from wounds suffered in a rocket attack at Forward Operating Base Salerno, Afghanistan. US Army photo by Staff Sgt. John Zumer, 3/1 BCT Public Affairs.

What the Supreme Court Could Do About Obamacare, Explained

| Mon Mar. 26, 2012 3:08 AM EDT

The Supreme Court will hear oral arguments concerning the constitutionality of Obamacare—a.k.a. the Affordable Care Act, or ACA—beginning Monday. (Last week, Obama reelection campaign manager Jim Messina sent out an email to supporters noting that he and the campaign are proud of "Obamacare," thus claiming the term from their foes.) What will the justices decide? Here are a few of the probable scenarios:

The Supreme Court punts. The first day of oral arguments is devoted to whether or not the Tax Anti-Injunction Act, a law that bars legal challenges to taxes before anyone actually pays them, applies to the individual mandate—the Obamacare provision that levies a tax on individuals who don't purchase health insurance and are not otherwise covered by an employer or government program. By taking this road and embracing an argument first laid out by Judge Brett Kavanaugh, a George W. Bush appointee, the Supreme Court could avoid dealing with the constitutionality of the individual mandate until after the 2012 election. Doing this could make the mandate ultimately more likely to be upheld, because the high court would be acknowledging that the mandate is a tax and falls under the federal government's constitutional authority to levy taxes. 

"This might end with a whimper rather than a bang," says Adam Winkler, a law professor at the University of California–Los Angeles. "If the court rules that the Tax Anti-Injunction Act applies, then all of the hullabaloo will be for naught."

The Supreme Court tosses out the whole law. Conservative opponents of the ACA argue that the individual mandate—only one provision of the law, albeit a central one—is an unconstitutional assertion of federal power, and they insist it ought to be struck down. But they also want to see the whole law ruled unconstitutional. Aside from the individual mandate, conservatives are also challenging the constitutionality of expanding Medicaid to 16 million more Americans. By the White House's numbers, that's about half of the Americans who will ultimately get coverage under the ACA. In his brief, former Solicitor General Paul Clement, who will be arguing for the ACA's challengers before the court, suggested that if either the individual mandate or the Medicaid expansion are ruled unconstitutional then the entire law should go. As TPM's Brian Beutler points out, it doesn't help that Congress didn't include in the original bill a "severability" clause (a traditional legislative provision that essentially says that if a portion of a law is struck down, the rest of the legislation still stands). This makes it easier for opponents to argue the entire law should be scrapped.

If the court doesn't rule on the individual mandate, however, that still leaves the question of whether the ACA's Medicaid expansion is constitutional. But experts speculate the court is unlikely to leave the mandate alone but overturn the health care law based on the Medicaid expansion.

The Supreme Court tosses the mandate and the ban on discrimination on the basis of preexisting conditions. The ban on insurance companies refusing to cover individuals on the basis of preexisting conditions is arguably the most popular part of the Affordable Care Act. Nevertheless, the Obama administration has argued that if the high court should choose to strike down the individual mandate, the whole bill wouldn't have to go. But, the government also notes, the prohibition on insurance companies discriminating on the basis of preexisting conditions would have to be dumped, because without the mandate the law's other provisions would "create a spiral of higher costs," with individuals getting sick and enrolling at the last minute. "The federal government's position is that [if] the mandate goes, other important things go too," says Doug Kendall of the Constitutional Accountability Center. 

The Supreme Court strikes down the individual mandate and keeps everything else. Neither the conservative challengers to the law nor the Obama administration would be particularly happy with this outcome. It would leave the current law mostly intact. But it would also, administration officials fear, bankrupt the insurance companies still forced to provide coverage without the necessary financial resources to do so. (Without a mandate, the insurance industry will have fewer customers and less resources to handle an influx of those people with preexisting conditions.) However, during the five and a half hours of oral arguments, the high court will also be hearing from H. Bartow Farr III, who will be arguing for the 11th Circuit Court of Appeals' position that the court doesn't have to strike down anything other than the individual mandate, if the court finds it unconstitutional.

The Supreme Court upholds the entire law. In the post-Bush v. Gore era, where the justices' opinions often seem to reflect little more than the ideological positions of the parties that appoint them, it seems difficult to imagine that the Affordable Care Act fully survives. But it could happen. George Washington University Law School Professor Orin Kerr, a former clerk for Justice Anthony Kennedy, is pretty bullish on the ACA's chances. Last August, he predicted that "the mandate will be upheld by a vote of anywhere from 6-3 to 8-1." 

Something crazy happens. The above scenarios seem like the most likely outcomes. But this is a historic case, and it's possible that the court could fail to find consensus one way or the other, leading to the justices splitting in a way that no position ends up with a clear majority. It's unlikely, but anything could happen.

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Ridiculous Ways States Are Trying to Fix Their Broken Budgets

| Sat Mar. 24, 2012 6:00 AM EDT

Faced with empty coffers, desperate governors and state lawmakers will try just about anything to improve their cash flow.

Puppy power: California Gov. Jerry Brown is selling t-shirts featuring his corgi, Sutter, and promises to donate $3 from each purchase to the Golden State's general fund.

Pole tax: In 2007, Texas Gov. Rick Perry instituted a $5 tax on strip club patrons to fund sexual-assault prevention and state health insurance. It has since brought in $15 million.

Frack party! After he proposed slashing the state education budget by $2 billion, Pennsylvania Gov. Tom Corbett suggested the state university system open up six of its campuses to natural-gas extraction.

Pass the hat: Faced with a costly court challenge to its draconian abortion consent law, South Dakota is accepting donations to cover $750,000 in legal fees. Less than $65,000 has come in.

Plane dealing: In 2006, then-Alaska Gov. Sarah Palin pledged to sell off the state's private jet on eBay. That didn't pan out; the jet, first bought for $2.7 million, was eventually sold for $2.1 million.

School's out...forever: Utah state Sen. Chris Buttars estimated that eliminating the 12th grade would knock $60 million out of the state's $700 million deficit. His fellow legislators flunked the idea.

The honesty tax: Arizona state Rep. Judy Burges proposed adding an "I Didn't Pay Enough" option to state income tax filings. Burges estimated it could net an extra $12 million a year; in its first year, it brought in just $13,204.

Venture capitol: In 2010, Arizona Gov. Jan Brewer approved the sale of three capitol buildings for $81 million. In January, Brewer said she'd buy them back from the investors the state had been leasing them from—at a cost of $106 million.

Image: Cafe Press; Terraxplorer/iStockPhoto; State of Alaska; State of Arizona; Graffizone/iStockphoto.

Corn on "Hardball": Health Care Heads to the Supreme Court

Fri Mar. 23, 2012 8:36 PM EDT

David Corn and Neera Tanden from the Center for American Progress joined Chris Matthews on MSNBC's Hardball to discuss next week's Supreme Court hearing on the Affordable Care Act and how, not so long ago, Mitt Romney defended individual mandates during the 2008 GOP primaries.

David Corn is Mother Jones' Washington bureau chief. For more of his stories, click here. He's also on Twitter.

The Right Goes Nuts Over Obama's Trayvon Comments

| Fri Mar. 23, 2012 3:45 PM EDT
Protesters at the million hoodie march protest in New York City earlier this week.

President Barack Obama spoke to the press about slain Florida teen Trayvon Martin on Friday morning, saying, "When I think about that boy, I think about my own kids.... If I had a son, he'd look like Trayvon. I think they are right to expect that all of us as Americans are going to take this with the seriousness this deserves and get to the bottom of what happened."

That was enough to cause some corners of the conservative media to go nuts.

Following along with theme of racial paranoia set by Glenn Beck's website The Blaze, conservative media icon Matt Drudge's page stoked fears of "retaliation," citing Louis Farrakhan. Conservative columnist Michelle Malkin accused Obama of "political opportunism" and trying to "pour gas on the fire" for empathizing with Martin's parents. The Daily Caller appears to have discovered the Trayvon Martin case on Thursday of this week, but it had already decided that the most important angle was what the New Black Panther Party thought. Perhaps that was to lay the groundwork for Friday's piece by Matthew Boyle, which implies a causal link between the Panthers' outrage and Obama's remarks on the subject. Going to the New Black Panthers to find out what black people think is like going to the Ku Klux Klan to find out what white people think, except if the KKK were a bunch of clowns who no one cares about instead of a group with a history of racist terrorism. 

Obama isn't the first national political figure to weigh in on the Martin case, but he's the first to generate a spasm of outrage from the conservative media, which up till now had remained mostly silent. Somehow, both Rep. Allen West (R-Fla.) and former Secretary of State Condoleeza Rice managed to weigh in on the Martin story, both in support of a federal investigation of the incident, without provoking right-wing speculation that they were in league with black separatists. 

Sadly, prior to Obama's remarks the Martin case had avoided being sucked into a partisan vortex. Fox News virtually ignored the issue, and National Review has published several well-considered pieces on the subject. On Friday, Senate Minority Leader Mitch McConnell (R-Ky.) called Martin's death "an incredible tragedy" and said "I'm glad it's being investigated and we'll take a look at it as the investigation moves along."

I would have preferred the president not weigh in on the Martin case, lest he taint a potential jury trial for George Zimmerman, who maintains he shot Martin in self-defense. But I also suspected that his silence prevented the whole incident from turning into a partisan food fight, with conservatives having to choose between common decency and agreeing with their hated enemy. Because it was obvious, when it came to that, what some of them would choose. Hopefully actual elected officials won't follow their lead.

We're Still at War: Photo of the Day for March 23, 2012

Fri Mar. 23, 2012 10:34 AM EDT

US Army soldiers from 1st Platoon, Company A, 1st Battalion, 2nd Infantry Brigade, Task Force Blackhawk, cordon off the town square of a small village near Combat Outpost Yosef Khel on March 10, 2012. US Army photo by Sgt. Ken Scar, 7th MPAD.