29 June 2012

How the Grinch meant to steal the ACA.

Scalia writes in the Obamacare dissent:
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.
- National Federation of Independent Business v Sebelius, 567 U.S. ___ (2012) (Scalia, joined by Kennedy, Thomas and Alito, dissenting)
The "ne plus ultra of expansive Commerce Clause jurisprudence"? Damn. Nicely done.

Also, Justice Scalia, here you make a very fair and valid point.

Yes, you heard me right.

Indeed, Wickard is an atrocity. The way it gleefully traipses past the bounds of rationality and then wind-sprints into a conclusion of the purist lunacy still has the power to shock me every time I read it. As you suggest, Wickard is truly the zenith of federal legislative and regulatory narcissism, and the real how-to manual for drawing spurious legal opinions.

So in 2004 — when Gonzales v Raich presented you the opportunity to overturn Wickard — why didn't you even bother to try?


Why? Scalia Claus...why?

Indeed, who was the hardline conservative who joined the moderates that time? That was you. You all relied on what you now concede is Wickard's idiotic reasoning to reach the idiotic conclusion that NOT buying marijuana on the black market somehow constitutes "interstate commerce."

Thus, you ruined a couple of women who weren't bothering anybody, and just using some homegrown for therapeutic purposes on doctor's orders and pursuant to California state law.

So I guess that was fun.



Since you insisted in Gonzales v Raich that not buying pot from a California drug dealers is indeed interstate commerce subject to federal regulation, then it is at least as true that not buying insurance is interstate commerce subject to federal regulation.

The reasoning is shit, but it's all yours, Nino. Own it.



Having been hoist on his own petard, Scalia stamps his foot and insists:
Raich is no precedent for what Congress has done here. That case’s prohibition of growing and of possession did not represent the expansion of the federal power to direct into a broad new field.
Oh, really...?

Well please direct me to clause in the U.S. Constitution that expressly grants Congress the power to regulate recreational intoxicants, pharmaceuticals or medical treatments. The fact that it doesn't exist certainly didn't prevent Congress from entering into such a "broad new field" by enacting the Comprehensive Drug Abuse Prevention and Control Act  a breathtakingly expensive and expansive act of law-enforcement futility known colloquially as "The War on Drugs."

Hell, "war" isn't even a euphemistic term. This law legitimized becoming actively embroiled in hot wars and/or paramilitary conflicts all over the globe since the 1970s, and caused a massive expansion of the federal bureaucracy. Perversely, this law even provided the justification for federal agencies to actively participate in organized crime and drug trafficking. With respect to the public, the law features utterly irrational criminal penalties that include ruinous fines and lengthy incarcerations for even minor infractions and is the direct reason we have the worlds highest incarceration rate. By a mile.

Perhaps worst of all, in its haste to endorse and enforce draconian federal drug laws, SCOTUS and the rest of the federal judiciary has invented so many ludicrous loopholes, doctrines and exceptions to the Fourth, Fifth and Sixth Amendments the Bill of Rights is now approaching a legal nullity.

As the longest-serving member of the Court, and the one most likely to back a cop and smack down a drug user, once again this is on you, Justice Scalia.

My point here is that, by any measure, the Affordable Care Act looks like Bambi next to the uncontrollably destructive Godzilla that is the Comprehensive Drug Abuse Prevention and Control Act. So let's all have a little perspective here.

And while everyone is free to believe it's all staggeringly stupid government policy, by Scalia's logic both acts of Congress must be Constitutionally valid exercises of federal power, or neither can be.
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.
"Far different"? Howso?

Elsewhere you concede, "the goal of the Act is to provide near-universal medical coverage."And to the purpose of achieving that goal, in conference, deliberation and debate, the insurance industry insisted, and Congress finally agreed that the only practicable way to effectively enforce this Act was to prevent insurers from limiting their insurance pools to cherry-picked low-risk individuals. Thus Congress required everyone capable of paying into the pool to do so, enabling the public-health benefit costs to be apportioned generally across the public, with failure to do so subject to penalty.

Y'know — kinda the way taxes work.

Justice Scalia then goes on to fantasize about other ways he thinks the law could, or rather should, be effectively enforced to achieve its policy goal, attempting to substitute his notions of sensible policy for Congress' — precisely the "judicial activism"he otherwise fucking lives to mock.

Having utterly lost his way, Scalia now heads straight into the weeds:
[W]e must, if “fairly possible,” construe the provision to be a tax rather than a mandate-with-penalty, since that would render it constitutional rather than un-constitutional (ut res magis valeat quam pereat)*. But we cannot rewrite the statute to be what it is not.
The mere fact that Congress terms a penalty a tax, or terms a tax a penalty, or calls a surcharge an antelope is at best a semantic issue, not a legal one. Regardless of whether it's called a tax, penalty, or surcharge, Congress can enact a law which — irrespective of the verbiage — functionally taxes, penalizes, or surcharges. No, the Court may not rewrite a statute, but ferchrissakes you also may not just fucking void a law because its diction doesn't meet your lofty editorial standards.

Stop jerking off over the dictionary and cut the formalistic shit. Nonissue. Move along.
[O]ur cases have long held that the [federal] power to attach conditions to grants to the States has limits.
Well your jurisprudence, Justice Scalia, hasn't so far respected any such limits.

Indeed the landmark and controlling case you keep citing in this section is Dole v South Dakota, where you were in the majority that decided the feds are indeed free to penalize any state that failed to comply with the provisions of Congress' National Minimum Drinking Age Act through withholding 10% of highway funds. The Twenty-First Amendment expressly delegates to the states the power to regulate intoxicating liquors. But Justice Scalia, you thought it was okay for the feds to intrude on that express right and strongarm states into toeing the federal line on booze under threat of withdrawing money to construct roads and bridges — a matter utterly unrelated to drinking. Also, you may recall that in Gonzales v Raich you didn't exactly feel compelled to champion state sovereignty on California's behalf when it asserted its right to regulate cannabis for therapeutic purposes.

Every state already voluntarily participates in the federal Medicaid program on the terms the federal government determines, and Medicaid's purpose has ever been to provide medical care to the poor with qualifications indexed to the Federal Poverty Line. The ACA merely adjusts the index. Medicaid always covered poor people, and now it now covers more poor people.

That's not in any conceivable way some radical restructuring of the program.  If you blow up a balloon, it's still a balloon. If you blow in one more breath, you cannot argue it's not the same balloon, or longer even a balloon at all. And let's be real here: how can any sane American be genuinely surprised when government programs expand? It's like feigning shock and outrage the cute little puppy you bought last year turned into a dog. Really, spare me.

Then Scalia whips out the calculator to mathematically quantify the difference between "mild encouragement" and "coercion." Science! 
Withholding $614.7 million [10% of federal highway funds], equaling only 0.19% of all state expenditures combined, is aptly characterized as “relatively mild encouragement,” but threatening to withhold $233 billion [100% of medicaid funds], equaling 21.86% of all state expenditures combined, is a different matter. 
These figures are imaginative, to say the least. In Dole, the other 49 states weren't refusing to comply, and his belief that all 50 states might rebel against a Medicaid expansion is absurd in the extreme. Indeed, to apply the fact pattern in Dole, the feds would have to threaten to slash federal highway subsidies to states that resisted the ACA's Medicaid expansion. But the federal government has every right to regulate the terms by which states participate in a federal program that disburses federal funds to states, and the states retain every right to accept the terms and take the money, or not. Nothing has changed.

Once again, Scalia, judicial activist, simply substitutes his policy judgement for Congress'.

 Look, we all understand that the Affordable Care Act's Democratic pedigree renders it incapable of surviving your legal scrutiny. But doesn't the obviousness of your political-policy motivated, outcome-based legal reasoning ever give you a moment's pause?

Indeed, since you're so much better at writing laws than Congress, won't you please just resign from the bench and run for Congress? I'm sure you'd be a real hit.

* LegalLatin for "so the thing might have effect rather than be destroyed."

28 June 2012

Poor Mitt is troubled.

“And perhaps most troubling of all, ‘Obamacare’ puts the federal government between you and your doctor.”

This is bad.

Unless "you" are a woman, and the "doctor" is her ob/gyn.

A new "Switch in Time"?

So the 'bastard's favorite bon vivant, Brian, and favorite economist, Robert Reich, predicted the Obamacare outcome — but could anyone have predicted the justices would bring up broccoli 12 goddam times?

Reich predicted it'd go 6-3. It actually went 5-4, but that sorta reinforces his underlying argument.
"Chief Justice John Roberts is — or should be — concerned about the steadily-declining standing of the Court in the public’s mind, along with the growing perception that the justices decide according to partisan politics rather than according to legal principle. The 5-4 decision in Citizen’s United, for example, looked to all the world like a political rather than a legal outcome...Or consider the Court’s notorious decision in Bush v. Gore
The Supreme Court can’t afford to lose public trust....Another 5-4 decision overturning a piece of legislation as important as Obamacare would further erode that trust....
...what better way to show the Court’s impartiality than to affirm the constitutionality of legislation that may be unpopular but is within the authority of the other two branches to enact?"
The first time I read that I though "interesting argument, but if Chief Justice Roberts gave a damn about the appearance of judicial impartiality he wouldn't constantly vote in such an obviously partisan manner."

Reich also predicted the Commerce Clause would justify the individual mandate. It didn't. The majority allowed it on the Tax and Spend Clause. Nonetheless, anticipating Roberts would cross the aisle means Reich got more right than he didn't.

For what it's worth, I correctly put Kennedy with the conservative hardliners and nailed their dissenting arguments.

What's fascinating is Ed Wheelan's suggestion that Scalia's joint dissent was actually composed as the opinion that addressed a Ginsburg-authored dissent because Scalia scarcely addresses the actual opinion authored by Roberts. That does seem to imply things were very far from settled at the eleventh-hour.

Considering Reich's "Chief Justice Roberts chose to save the court" argument, this more than somewhat resembles The Switch In Time That Saved Nine where a different conservative Justice Roberts crossed the aisle to white-knight a different Democratic president's sweeping reforms during a different economic depression.*

It was Dorothy Parker who said, "It isn't true that life is one damn thing after another. It's one damn thing over and over."

* UPDATE: Noticed that Robert Reich made the very same observation in his most recent blog post. Don't know which of us published first, but I swear I didn't plagiarize him. (Actually, feeling a bit puffed up we could arrive at the same conclusion independently. Whoo-hoo!)

27 June 2012

Dusting off the crusty 8-ball.

Tomorrow SCOTUS issues its landmark decision on the Patient Protection and Affordable Care Act, "Obamacare."

To make the bold prediction, you need to consider:

A. The judge's voting histories, and

B. The issues presented.


So let's have at it, shall we?


A. If anything approaches a certainty,  it is that the decision will not be unanimous, or even close.

Like knowing the sun will rise tomorrow in the east, the conservative RATS (Roberts, Alito, Thomas and Scalia) will vote as a bloc. The four moderates* (Breyer, Ginsburg, Sotomayor and Kagan), who do not routinely vote as a bloc to the extent the RATS do, in this case are very likely to vote together. 

That means — as with most controversial cases — the Supreme Court is really just one judge: Anthony Kennedy.** 

Justice Kennedy is a staunch conservative, but not an extremist ideologue like the RATS. That means he is, very occasionally, willing to cross the aisle and find some wisdom there. Indeed, upon the retirement of Justice Sandra Day O'Connor, Kennedy assumed her mantle as the Court's "swing voter." 

Which is all very nice and reassuring...until you put it in context. 

O'Connor was and is an Arizona Republican. (I think we all have a pretty good idea of what that means anymore). She was a party official before she was appointed by Reagan and once on the bench, she almost always voted alongside the odious archconservative Justice Rehnquist. Even so, O'Connor was ever painted as the court's "moderate" during the period that Kennedy was a reliable part of the Rehnquist Court's solid conservative majority. 

In short, Kennedy isn't any more a "moderate" than O'Connor was. Indeed, he's actually less of a moderate. 

He almost always votes with the RATS on the landmarks. I expect he will again.


B. There are four major issues the Court will decide:
1. Is the expansion of Medicaid congruent with American federalism?
2. Does Congress have the power to require the individual mandate under threat of penalty?
3. Must we wait until the individual mandate penalty is imposed before we decide if it's permissible?
4. If the mandate is impermissible, is the entire law void?
1. Conservatives are deeply, deeply besotted with anti-federalism and "state's rights" — unless and until a state is doing something progressive, like permitting medical marijuana, or assisted suicide for the suffering terminally ill, or trying to stop corporations from stealthily buying legislatures. Conservatives also find something uniquely repellant about spending public money on the public — they think public money is better spent on making Iraq safe for Chinese petrochemical interests, covering the losses racked up during their Wall Street friend's periodic gambling benders, subsidizing profitable multinational corporations, and Jesus.

2. Can Congress act in response to a completely manufactured public health financial crisis? Well...duh. Of course Congress can require the individual mandate. But this one really makes conservative heads asplode. They'll invent some shit about the framer's intent that the poor be sacrificed or further impoverished in the interest of health industry profiteering, and Scalia will, no doubt, provide some historical fiction to back up this fanciful notion. I expect this to be the bitterly comedic high point.

3. In reality, they probably ought to postpone on the doctrine of ripeness. But I expect they'll make the point that the penalty is so meager that it's not functionally a penalty at all, and they'll assume as a certainty that many good and righteous godfearing Americans will defy the mandate and take the penalty so they can sue the government while they imagine they're a modern Thomas Goddam Paine. Not that that's a good argument, but they need to get to the place where they can kill the mandate, so they will somehow.

4. The Affordable Care Act doesn't have a severability clause by omission or design. That means if they kill the mandate, the whole thing can collapse like a wet taco. Would the conservative majority invent a severability clause to save any of it? Unlikely in the extreme.


So my crusty prediction is that Obamacare dies tomorrow, but the Court wishes all you uninsured sick people the best of luck, and don't forget to drop by and say "hi" when you're in federal bankruptcy court if you survive. w00t.

I hope I'm wrong. I really do.

America's current laissez-faire, invisible-hand, libertarian objectivist I-got-mine-so-fuck-you approach to heathcare is as immoral as it is economically unsustainable.

Given that the self-styled public servants within our Congress and judiciary feel entitled to participate in reliable, affordable, publicly subsidized healthcare for their entire lifetimes, I cannot fathom how they can also believe the public they serve should just do without, or that we should fend for ourselves against corporations who have every incentive to squeeze us until the money runs out, then walk away leaving us fucked.

If unhealthy Americans got the same level of political concern conservatives provide to nonexistent, unwanted, nonviable fetuses, we could solve our healthcare crisis in a couple of years.

But we won't. And that's what's really sick.


* While "liberal" is the literal opposite of "conservative," our Supreme Court is comprised of political conservatives and moderates, not liberals. It would be impossible to make a serious argument that even the most liberal member of the court (probably Justice Ginsburg) reflects and embodies the values of America's progressive social liberals in the same way any of the court's conservatives profoundly reflect and embody the values of America's very hardline conservatives. She just doesn't. Ginsburg is middle-of-the road at best. America's actual liberals have no representation or voice on America's Supreme Court.


** It also means essentially half of the court is, as usual, completely, utterly wrong. How fully half of such an erudite, elite panel of jurists can be so relentlessly, inexorably incorrect despite having essentially the same legal credentials and viewing the same fact pattern is a mystery I leave for you to untangle, dear reader.

26 June 2012

SCOTUS keeps bringing the derp.

Conceding their state's history of political corruption at the hands of corporations, in 1912, the Montana legislature enacted the Corrupt Practices Act, barring corporations from making "an expenditure in connection with a candidate or a political committee that supports or opposes a candidate or a political party."

In short, Montana's law barred fictitious entities who cannot vote from using money to affect the outcome of an election.

The Corrupt Practices Act was challenged in the wake of Citizens United v FEC, 558 U.S. ___(2010), where the conservative majority simply reframed the issue into a baseball-and-apple-pie discussion of whether associations of citizens have a First Amendment right to political speech.

Yeah. Because huge multinational conglomerates are just simple citizen-collectives, and buying national elections and officials is just their way of expressing their political views.

See? No biggie.

The American Tradition Partnership Inc. is a self-described,“no-compromise grassroots organization dedicated to fighting the radical environmentalist agenda.” They insist, “If you decide to support the program, no politician, no bureaucrat and no radical environmentalist will ever know you helped make this program possible.”*

American Tradition Partnership Inc. (in its previous incarnation as Western Tradition Partnership) challenged the Corrupt Practices Act on the basis Montana's political contribution limitations were invalid subsequent to Citizens United. The Supreme Court of Montana noted the corporation's admitted, undisputed function was to allow donors to make unlimited, secret political contributions. Providing abundant evidence of the corrupting influence of such expenditures in Montana prior to enacting the Corrupt Practices Act, the court drew the distinction between the state law at issue and the McCain-Feingold Act overturned in Citizen's United and upheld their state law as an appropriately measured response to address the real problem of political corruption in Montana.

American Tradition Partnership Inc. v Bullock, 567 U.S. ___ (2012) provided the SCOTUS conservative majority's Dr. Frankenstein its chance to kill its Super-PAC "social welfare" abominations, and some small opportunity for redemption, given they're so utterly, blissfully, willfully out-of-touch with reality they were willing to choose to believe as a matter of faith that:
"independent expenditures, including those made by corporations, do not give rise to corruption or the appearance of corruption. That speakers may have influence over or access to elected officials does not mean that those officials are corrupt. And the appearance of influence or access will not cause the electorate to lose faith in this democracy." (Citizen's United v FEC, 558 U.S. ___, 2010)

It is important to note that every one of their colleagues joined the American Tradition Partnership, Inc. dissent that pointedly noted:
"Montana’s experience, like considerable experience elsewhere since the Court’s decision in Citizens United, casts grave doubt on the Court’s supposition that independent expenditures do not corrupt or appear to do so." 
However, rather far from choosing to redeem themselves, the nimrods used their per curium** holding in American Tradition Partnership, Inc. to make that Citizens United crap binding on the states.

I would attempt to summarize their argument and analysis — but there isn't one.

The stunningly meager 146 word opinion simply states that the reversal of Montana's highest court is justified because "there can be no serious doubt" the issue was entirely and conclusively settled by Citizen's United. 

So...yeah, their substantive opinion amounts to "we already told you once." Wow. Those kinds of opinions have been exceedingly rare, are reserved for uncontroversial cases where the entire panel is pretty much all on the same page.

Which is very much not this.

Given that states have always had the power to control their own elections, how do you suppose these conservatives would approach the issue of a state that's deliberately creating laws that encroach and override a power that has always been federal? You'd think they'd slap that uppity state down with a quickness, wouldn't you?

Well, you'd be wrong. The conservatives who think Montana legislators and judges can't reasonably regulate political spending in Montana, insist — as long as they don't racially profile — Arizona cops who suspect Mexicans of being illegal should be permitted to detain said Mexicans to until proof of legal residence is established.

In support of Arizona's "Papers, Please" law the majority would draw your attention to a federal law that requires foreign nationals to carry proof of legal residency. Super. But I don't really care about how this law affects illegals. I care deeply how this law affects Americans — some of whom are ethnically Mexican or appear to be otherwise..."foreign." Cops have never had the right or power to detain us until we establish our citizenship to their satisfaction.

Now the court is cool with this — as long as the cops are not open and obvious about the racist reasons why they stopped you in the first place.

After all, Americans have elected a black president so we're totes not racist anymore.

God knows nobody would think anything as stupid as "this guy seems suspiciously African. Let's harass him with demands for proof of citizenship, for like, the billionth time."


No siree. Can't happen here.



* What a relief. Someone needs to keep Montana safe for rampant mine-and-dash operations where industry exploits bankruptcy law to transfer its toxic cleanup obligations the taxpayer. That's some conservative-approved bootstrappy personal responsibility free enterprise there, for sure.


** Per curium is legalspeak for "nobody will claim the turd."

21 June 2012

In today's fucking legal news.

SCOTUS held unconstitutional, 8-0, the FCC regulation making broadcast licensees responsible for "fleeting expletives" spoken on-air.

"This is really, really fucking brilliant."
- Bono 

So yeah, that was the bridge-too-far 2003 Golden Globes acceptance exclamation that put the FCC's verbal hygiene enforcement squad into a tizzy.

The net effect of this ruling is that FCC must now restrict its old-fartitude to telling kids at the bus station to put away their goldanged phone and pull up their flippin' pants.


Reached for comment, the FCC stared for a minute and said, "I used to stack fucks like you five feet high in Korea."