Let’s Be Crudely Cynical

James Fallows writes about the politicization of the Supreme Court and, to his credit, since most polite DC media won’t touch it with a barge pole, this:

Among the implications: life tenure for federal justices, especially for the Supreme Court, has got to go, since it makes the appointment process a crudely cynical actuarial contest. (Locus classicus: Clarence Thomas, age 43 when appointed, so if he watches his weight he could plausibly end up spending most of his life as a sitting though silent Justice.) Eventually a sufficiently ruthless party will nominate Justices while they’re still taking their LSATs.

There’s no way that we’re getting rid of lifetime appointments for federal judges, but it seems like a sensible proposal. True to form, Republicans are already treating court appointments like the actuarial processs that it is. Alito (55) and Roberts (50) were clearly chosen for their youthful vigor along with their other reliable conservative characteristics. But when it came time for Democrats, they appointed a justice with Type I Diabetes, Sonia Sotomayor. We can’t have that. We need more softball-playing, youthful, closeted lesbians. If Obama’s next appointment is over 50, we need to raise hell.

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A Shot Across the Bow

Obama puts it clearly:

President Obama said Monday that he remains confident the Supreme Court will uphold his administration’s sweeping health care legislation, arguing that overturning the law would amount to an “unprecedented, extraordinary step” of judicial activism.

In his first comments since the Court wrapped up oral arguments last week in its review of the 2010 law, Obama called the legislation that requires the uninsured to purchase health care coverage “constitutional.”

“Ultimately, I am confident the Supreme Court will not take what would be an unprecedented, extraordinary step of overturning a law that was passed by a strong majority of a Democratically-elected Congress,” Obama said during a Rose Garden news conference.

“I just want to remind conservative commentators that for years what we have heard is the biggest problem on the bench was judicial activism or a lack of judicial restraint—that an unelected group of people would somehow overturn a duly constituted and passed law,” Obama said. “Well, this has been a good example. I am pretty confident this Court will recognize that and not take that step.”

Not only does that send a message to the court, but it also puts down a marker for Obama. If ACA is overturned, he’s already set the stage to call them activist judges and run against the court.

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I’m Sure This is Based on Originalism and Strong Jurisprudence

Another day, another victory for the authoritarian state the Roberts court so clearly pines for:

The Supreme Court on Monday ruled by a 5-to-4 vote that officials may strip-search people arrested for any offense, however minor, before admitting them to jails even if the officials have no reason to suspect the presence of contraband.

Justice Anthony M. Kennedy, joined by the court’s conservative wing, wrote that courts are in no position to second-guess the judgments of correctional officials who must consider not only the possibility of smuggled weapons and drugs but also public health and information about gang affiliations.

About 13 million people are admitted each year to the nation’s jails, Justice Kennedy wrote.

Under Monday’s ruling, he wrote, “every detainee who will be admitted to the general population may be required to undergo a close visual inspection while undressed.”

Justice Stephen G. Breyer, writing for the four dissenters, said strip-searches were “a serious affront to human dignity and to individual privacy” and should be used only when there was good reason to do so.

Again, I’m sure I’m just being ignorant and reactionary when I point out the ruling was once again made by the five conservatives in favor of the state. I’m sure this is just a coincidence, and not at all a pattern we’ve witnessed. And, of course, I am not taking “into account the unusual and promising alignments of Scalia and Thomas with the’liberal’ members of the court on criminal rights. It’s just generally ignorant, obscurantist, and unbefitting of the moderator of an otherwise informed blog.”

So y’all keep that in mind when you get a full body cavity search the next time you get arrested for jaywalking. In fairness to the conservatives on the court, I can understand why they think body cavity searches are necessary for misdemeanors. You may have hidden a broccoli mandate somewhere, and nothing scares the shit out of them more than that.

*** Update ***

And one of the first comments misses the whole point:

I doubt many get arrested for jaywalking, unless they deliberately try to avoid arrest.

That matters not. What matters is the court has now given the authorities to humiliate any one they want no matter what. Read this:

Albert W. Florence believes that black men who drive nice cars in New Jersey run a risk of being questioned by the police. For that reason, he kept handy a 2003 document showing he had paid a court-imposed fine stemming from a traffic offense, just in case.

It did not seem to help.

In March 2005, Mr. Florence was in the passenger seat of his BMW when a state trooper pulled it over for speeding. His wife, April, was driving. His 4-year-old son, Shamar, was in the back.

The trooper ran a records search, and he found an outstanding warrant based on the supposedly unpaid fine. Mr. Florence showed the trooper the document, but he was arrested anyway.

The man in this case WASN’T EVEN CHARGED WITH A CRIME. He was a passenger in his wife’s car when she was pulled over for speeding, and there was an invalid warrant for his arrest for unpaid fines. Even though he had proof in the vehicle the fines were paid, he was arrested for… NOTHING at all. Got it?

It doesn’t matter how many people are arrested for jaywalking or whatever, the court in this case just decided it was ok to stripsearch this guy for an INVALID ARREST.

Please stop making excuses for how fucking radical this court is. Jesus.

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More Pearl Clutching from Right Wing Elites

I suppose we should expect a few more months of this:

When the incoming Chief Justice John G. Roberts Jr. came before the Senate for confirmation seven years ago, President Reagan’s solicitor general gave him a warm endorsement as a “careful, modest” judge.

“He’s not a man on a mission,” Harvard Law professor Charles Fried testified, adding that Roberts was not likely “to embark on constitutional adventures.”

But two years ago, the Roberts-led Supreme Court struck down the federal and state laws that for a century had barred corporations and unions from pouring money into election campaigns.

***

After the healthcare arguments, Fried was among those who worried aloud about the prospect of the Roberts court embarking on a new era of judicial activism.

If the court were to invalidate the healthcare law, “It would be more problematic than Bush v. Gore,” Fried said in an interview, referring to the case that decided the 2000 presidential race. “It would be plainly at odds with precedent, and plainly in conflict with what several of the justices have said before.”

Look- there is no way of knowing how the Court will eventually rule. None. But what is troubling to many is that it is even up in the air at all, considering the general consensus among our legal elites is that this a no-brainer and of course it is Constitutional (.pdf). Here’s the overwhelming opinion from everyone not wearing a tri-corner hat and a “Don’t Tread On Me” t-shirt with two pistols tucked into the waist band of their depends and a pocket Constitution in the bucket of their electric scooter:

When Congress passed legislation requiring nearly all Americans to obtain health insurance, Randy E. Barnett, a passionate libertarian who teaches law at Georgetown, argued that the bill was unconstitutional. Many of his colleagues, on both the left and the right, dismissed the idea as ridiculous — and still do.

But over the past two years, through his prolific writings, speaking engagements and television appearances, Professor Barnett has helped drive the question of the health care law’s constitutionality from the fringes of academia into the mainstream of American legal debate and right onto the agenda of the United States Supreme Court.

“He’s gotten an amazing amount of attention for an argument that he created out of whole cloth,” said one of his many critics, Douglas Laycock, a professor at the University of Virginia Law School. “Under existing case law this is a very easy case; this is obviously constitutional. I think he’s going to lose eight to one.”

Could the Court rule that it is Constitutional- of course they still could. But again, what is most troubling is that this is even in question. The implications of them over-ruling would be far and wide:

The thing is, as of the time the law was passed, everyone across the political spectrum thought this thing was constitutional. The Heritage Foundation started it, the D’s finished it, and the whole way down no one thought it ran afoul of the Constitution (save for people considered fringe at the time).

What this says is that Congress and the entire country were relying on the precedents SCOTUS set to pass the law—and they spent almost two years and untold legislative resources doing it. That’s the whole point of stare decisis, allowing for predictability with respect to what the law allows. Stare decisis is what makes sure the courts don’t act arbitrarily by constraining them to fit within precedent.

Acting in ignorance or with disregard for precedent (and precedent’s practical attendants, like reasonable beliefs in the public about what the law is) undermines rule of law, makes it impossible to pass laws confident of their legality, etc. It is, in a word, arbitrary. It’s the kind of thing they do in developing countries.

If SCOTUS ditches stare decisis here, sure their credibility will take a hit, but more importantly: we, as a polity and individuals, would have no reason to think we could pass any major regulatory legislation (unless, of course, we took the political commitments of the justices as our guide). SCOTUS would be potentially freezing the statutory law in place. What is Congress supposed to do with its time if everything it thought it knew about the law gets chucked out the window? How does it pass legislation? How does it change existing legislation? Are only Republican Congresses allowed to pass laws?

At any rate, it’s just funny listening to all the pearl-clutching from Fried and other “respectable” Republicans. Will the Court overturn it? In my more cynical moments, I say absolutely, by a 5-4 vote. In my more hopeful moments, I say of course not- it will be upheld 6-3. What will probably happen- anyone’s guess, but I think the best guess is that one or part will be struck down. They may split the baby and nuke Medicaid and keep the mandate.

Oh, and the answer to the question “If the law fails, what’s next” is that every single person who gets royally screwed, kicked out of their health insurance, etc., should be forcefully and repeatedly asked how they like their GOPcare/teabaggercare. Make the right wing own the mess. They broke it. They bought it. Make them own the misery they create.

*** Update ***

Read this, also too.

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Glad You’re All Seeing Things My Way

The other day I wrote the following:

I’m really completely uninterested in the actual arguments being made in the ACA case before SCOTUS. It just doesn’t matter what the law is, as these guys have proven time and again that they’ll do whatever they want. I also find it amusing that people think Roberts cares about the impressions created by a divided court. He doesn’t. None of them do. There is no doubt in my mind that Alito, Thomas, Scalia, and Roberts will do whatever they think will help conservatism the most, precedents and outcomes of their actions be damned.

For these sentiments, I was told I was “spectacularly obtuse” and “willfully ignorant” and displaying “extraordinary ignorance” and so forth. I’m in good company, I guess, as people start to realize what they just witnessed:

I didn’t mention this yesterday, but in his interview with me about the limiting principle, former Reagan Solicitor General Charles Fried was scaldingly critical of the willingness of the conservative bloc of Supreme Court justices to traffic in some of the most well-worn Tea Party tropes about Obamacare.

“I was appalled to see that at least a couple of them were repeating the most tendentious of the Tea Party type arguments,” Fried said. “I even heard about broccoli. The whole broccoli argument is beneath contempt. To hear it come from the bench was depressing.”

Which raises a question: How did so many commentators predicting this would be a slam dunk for the Obama administration get it so wrong?

***

Keep in mind: Many observers, Obama officials included, spent weeks treating Scalia like a potential swing vote on the case. Lawyers defending the law wrote some of their briefs and opinions with an eye towards persuading Scalia. They consciously invoked Scalia’s own words from a 2005 opinion affirming Congress’s power to control local medical marijuana in hopes it signaled he might be open to the administration’s defense of the individual mandate.

This now looks like a terrible misjudgment. During oral arguments this week, Scalia invoked the broccoli argument to question the goverment’s case. He mocked the government’s position with a reference to the “cornhusker kickback,” even though that’s not in the law. As Fried notes, this language is straight out of the Tea Party guerrilla manual that was written during the battle to prevent Obamacare from becoming law in the first place.

All of which is to say that the law’s proponents were badly caught off guard by the depth of the conservative bloc’s apparent hostility towards the law and its willingness to embrace the hard right’s arguments against its constitutionality. They didn’t anticipate that this could shape up as an ideological death struggle over the heart and soul of the Obama presidency, which, as E.J. Dionne notes today, is exactly what it has become.

People who thought Scalia would act rationally simply were not paying attention. EJ Dionne:

Three days of Supreme Court arguments over the health-care law demonstrated for all to see that conservative justices are prepared to act as an alternative legislature, diving deeply into policy details as if they were members of the Senate Health, Education, Labor and Pensions Committee.

Senator, excuse me, Justice Samuel Alito quoted Congressional Budget Office figures on Tuesday to talk about the insurance costs of the young. On Wednesday, Chief Justice John Roberts sounded like the House whip in discussing whether parts of the law could stand if other parts fell. He noted that without various provisions, Congress “wouldn’t have been able to put together, cobble together, the votes to get it through.” Tell me again, was this a courtroom or a lobbyist’s office?

It fell to the court’s liberals — the so-called “judicial activists,” remember? — to remind their conservative brethren that legislative power is supposed to rest in our government’s elected branches.

Justice Stephen Breyer noted that some of the issues raised by opponents of the law were about “the merits of the bill,” a proper concern of Congress, not the courts. And in arguing for restraint, Justice Sonia Sotomayor asked what was wrong with leaving as much discretion as possible “in the hands of the people who should be fixing this, not us.” It was nice to be reminded that we’re a democracy, not a judicial dictatorship.

The conservative justices were obsessed with weird hypotheticals. If the federal government could make you buy health insurance, might it require you to buy broccoli, health club memberships, cellphones, burial services and cars? All of which have nothing to do with an uninsured person getting expensive treatment that others — often taxpayers — have to pay for.

Again, all of this is stuff from the teabagger anti-Obamacare manifesto. Chait:

The only thing Rosen truly failed to anticipate in his piece was how quickly Republican judges would pivot from impassioned defenses of judicial restraint to judicial activism when the opportunity arose to deploy it in their party’s behalf. In the piece, he described Antonin Scalia as a fierce opponent of this movement. Scalia, wrote Rosen, “was not in favor of striking down laws in the name of ambiguous and contestable economic rights.” At one point Scalia attacked the movement to read economic rights into the Constitution as a “threat to constitutional democracy.”

The spectacle before the Supreme Court this week is Republican justices seizing the chance to overturn the decisions of democratically-elected bodies. At times the deliberations of the Republican justices are impossible to distinguish from the deliberations of Republican senators. They are litigating the problem of adverse selection, and doing it very poorly. (Here are health economists Henry Aaron and Kevin Outterson tearing their hair out over the justices’ bungled attempts to describe the economic dynamics at work.)

Scalia himself offers the most blatant case. His famed thunderings against meddlesome judges are nowhere to be found. He is gleefully reversing his previous interpretation of the Commerce Clause, now that it is being deployed against big government liberals rather than pot smokers. He is railing against Obamacare like an angry Fox News-watching grandfather.

News flash- right wing hacks tend to act like right wing hacks. We’re talking about a conservative bloc whose wives openly work for tea party groups, we’re talking about hacks that speak privately to the tea party hacks. We’re talking about people who lie on their disclosure forms for decades to cover up the money their wives are receiving from wingnut welfare organizations.

Every one of these men was a member of the Federalist Society. Every single one of them was groomed for exactly what they are doing right now. This is their time to shine, to do what they have been groomed to do. When you train soldiers to fight, and drill their mission into them every day, and drill the rightness and correctness of their mission into them every day, and assure them they are fighting for truth, justice, and the American way, only a fool would be surprised that they are eager to go into combat.

Maybe I will still turn out to be wrong, and they will uphold the bill. If so, great. They’ll be in line with the 90% of legal scholars who laugh off the question of constitutionality. But given what we know about these guys, and given what we have seen, it is anything but ignorant or obtuse to think otherwise.

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Thursday Morning Open Thread: Should’ve Locked the Doors

The estimable Dahlia Lithwick is not impressed by the SCOTUS spectacle:

It bears pointing out that for all of the six-plus hours of Supreme Court oral argument on the Affordable Care Act, the titans of the legal world—congressmen, appellate litigators, and heads of major national advocacy groups—were forced to surrender their cell phones, newspapers, and personal assistants in order to sit in perfect silence in the Supreme Court chambers. If you were to strip them of the sober gray suits and swap in a bowl of lentils, the last three days could well represent the legal world’s highest powered silent meditation retreat. Some of these folks haven’t been quiet for two consecutive waking hours since the 1960s.

The justices are anything but quiet, and as the two arguments roll on—90 minutes this morning on whether the whole act must fall if the individual mandate falls and almost 90 minutes this afternoon on the constitutionality of the health care law’s Medicaid expansion—the justices start to become almost punchy with all the melodrama. At one point during the morning session, Justice Antonin Scalia, reading from an opinion in a different case, lapses into Latin. Later Justice Stephen Breyer attempts to order the parties into a settlement conference to determine which provisions of the health care law should be allowed to survive. Justices Scalia and Elena Kagan bicker quietly over how much work their respective clerks will need to do in order to sever the mandate; and super-lawyer Paul Clement, arguing on behalf of the 26 states that want the court to strike down the law in its entirety, suggests that the same U.S. Congress that can’t confirm a magistrate judge can vote to reauthorize the surviving bill and “in a couple of days, it won’t be a big deal.”

In the afternoon session, Justice Scalia goes on a long, illuminating discursion about what he would do if forced to choose between his own life and that of his wife. Justice Breyer makes an impassioned plea for the infinite virtues of administrative law. And Solicitor General Donald Verrilli, offered 15 extra minutes by Chief Justice John Roberts to finish his argument defending the Medicaid expansion, snorts, “Lucky me.”

In closing the same argument, Verrilli offers what I can only describe as a final day’s prayer to the nine justices to preserve the health care bill because, as he puts it, with guaranteed health care, millions of Americans “will be unshackled from the disabilities that those diseases put on them and have the opportunity to enjoy the blessings of liberty.” Then, with a gentle imprecation that the court recognize that Congress did in fact pass a bill, he says, “Maybe they were right, maybe they weren’t, but this is something about which the people of the United States can deliberate and they can vote, and if they think it needs to be changed, they can change it.”...

Amy Davidson at the New Yorker approaches outrage:

Here’s where a person could lose just a little bit of patience with the Supreme Court: in the midst of an exchange with Deputy Solicitor Edwin Kneedler, Justice Antonin Scalia saw an obstacle he didn’t like:

JUSTICE SCALIA: You really want us to go through these 2,700 pages?
(Laughter.)

JUSTICE SCALIA: And do you really expect the Court to do that? Or do you expect us to give this function to our law clerks?(Laughter.)

JUSTICE SCALIA: Is this not totally unrealistic? That we’re going to go through this enormous bill item by item and decide each one?

More »

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The Rock Biter Theory Of Health Care Reform Legislation

“So,” they said.  “We don’t think SCOTUS will repeal the entire health care reform law, or gut the law and effectively end it, because that would put all the pressure on the GOP to replace it with something.  There would be a hole in one-sixth of the US economy.  They’d have do something about it.”

And as anyone who is familiar with The Neverending Story can tell you, the GOP is all about embracing the Nothing as far as health care reform (and with it, government itself).  As the Rock Biter said when asked what was destroying his peoples’ lands and what was left as a result:

A hole would be something. No, it was…Nothing.

Steve Benen points out that the GOP is perfectly okay with the HCR Nothing taking over. Repeal and Replace is now just Repeal and The Nothing.

When the debate over health care reform got underway in earnest in 2009, Frank Luntz and other GOP pollsters/strategists warned the party that Americans expected improvements to the dysfunctional system, and Republicans couldn’t simply say “no” to everything.

Three years later, that’s effectively where the party has ended up: wanting to go back to the mess “Obamacare” is cleaning up.

But what about McConnell’s main idea? It’s one of the GOP’s favorite talking points: we don’t need real reform; we just need to let consumers buy across state lines. President Obama and the Affordable Care Act allow this, but set minimum standards that states must abide by. McConnell and his party want to go further, removing, or at least severely weakening, those standards.

This is generally called the “race to the bottom.” Under McConnell’s vision, state policymakers would tell insurers that if they were to set up shop in their state the rules would be written in the industry’s favor. The industry would go with the state that offered the sweetest deal—which is to say, the most lax oversight with the fewest restrictions—and before long, it would be consumers’ only choice. Why? Because every insurer would move to that state, leaving Americans with no other coverage to buy.

That’s exactly what happened with the credit card industry, and it’s a model to be avoided, not followed.

But tossing us all into The Nothing is what the GOP wants. They “want to give the power to the states” because it’s FREEDOM and junk, and instead we’ll get the same awful abuses that the credit card industry has been perpetrating on consumers for years, only far worse because this time it will involve health insurance and health care itself. The cheapest, meanest policies that cover the least in health care and have massive deductibles will be the only ones left for the vast majority of Americans and the insurance industry will pocket the difference.  Can’t afford it?  There’s Nothing you can do about it.  Keen observers will note that the Nothing applies to any social government functions:  Medicare, Medicaid, Social Security and retirement, environmental protections, education, food safety, financial products, everything.  You can’t provide it yourself because you can’t afford it?  You get Nothing.

So no, I don’t believe for a second that the GOP will have to replace HCR with something. That would be something, after all. What they want is Nothing.

[UPDATE]  And the folks that are expecting single payer to rise from the ashes should HCR get mauled?  With a GOP House?  No.  the rocks must be delicious in your world, but single payer ain’t happening until there’s a seismic shift in the red/blue ratio.  Unless you think this particular SCOTUS is going to rewrite the universe and declare that Congress has to pass a single payer law, in which case the rocks are delicious in your world and they’re made of 100% unicorn poop.

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Not Surprising At All

I’m shocked. Shocked, I say:

CNN’s legal correspondent Jeffrey Toobin reports that the court’s conservative wing appeared skeptical of the Obama administration’s arguments in favor of the individual mandate provision of the Affordable Care Act.

“This was a train wreck for the Obama administration. This law looks like it’s going to be struck down,” Toobin said on CNN. “All of the predictions including mine that the justices would not have a problem with this law were wrong.”

“The only conservative justice who looked like he might uphold the law was Chief Justice Roberts who asked hard questions of both sides…

No one could have predicted.

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Maybe I’m Just Cynical

I’m really completely uninterested in the actual arguments being made in the ACA case before SCOTUS. It just doesn’t matter what the law is, as these guys have proven time and again that they’ll do whatever they want. I also find it amusing that people think Roberts cares about the impressions created by a divided court. He doesn’t. None of them do. There is no doubt in my mind that Alito, Thomas, Scalia, and Roberts will do whatever they think will help conservatism the most, precedents and outcomes of their actions be damned.

All this reading of tea leaves is pointless, imho. The merits of the case just don’t matter much- what matters is what these guys want to do, which is to gut the government’s power at every chance they get, unless it involves your sex life, your rights as an accused citizen, etc. Then they are all in favor of government power. These guys get one more hard right-winger like those four, they will overturn Roe, unsettling a half century of established law, faster than you can say activist judges.

Totally unrelated, but we are still tweaking the website, so stop yer bitching.

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What we’re fighting about

The following is from one of the DOJ briefs defending Obamacare. Less than 800 words that describe the whole law:

First, Congress made health insurance available to millions more low-income individuals by expanding eligibility for Medicaid. Beginning in 2014, Medicaid eligibility will extend to anyone under age 65 with income up to 133% of the federal poverty level. Currently, Medicaid beneficiaries are primarily children in low-income families, their parents, low-income pregnant women, and low-income elderly or disabled individuals. The newly eligible persons will consist primarily of low-income non-elderly adults without dependent children.

Second, Congress enacted taxing measures that encourage expansion of employer-sponsored insurance. The Act establishes new tax incentives for eligible small businesses to purchase health insurance for their employees. In addition, the Act’s employer responsibility provision imposes a tax liability under specified circumstances on large employers that do not offer adequate coverage to full-time employees.

Third, Congress provided for creation of health insurance exchanges to enable individuals and small businesses to leverage their collective buying power
and maintain health insurance at rates competitive with those charged for typical large employer plans.

Fourth, Congress enacted market reforms that will make affordable insurance available to millions who cannot now obtain it. Certain reforms have already taken
effect, including provisions that bar insurers from canceling insurance absent fraud or intentional misrepresentation and from placing lifetime caps on benefits, 42 In addition, the Act establishes medical loss ratios for insurers, i.e., minimum percentages of premium revenues that insurers must spend on clinical services and activities that improve health care quality, as opposed to administrative costs or profits. The Act also requires insurers providing family coverage to continue covering adult children until age 26, which has led to an additional 2.5 million young adults gaining coverage. Beginning in 2014, the Act will bar insurers from denying coverage to any person because of medical condition or history,
(guaranteed-issue provision), and from charging higher premiums because of a person’s medical condition or history, (community-rating provision).

Fifth, Congress enacted new tax credits, cost-sharing reduction payments, and tax penalties as incentives for individuals to maintain a minimum level of health insurance. The Act establishes federal premium tax credits to assist eligible individuals with household income up to 400% of the federal poverty level purchase insurance through the new exchanges. These premium tax credits, which are advanceable and fully refundable such that individuals with little or no income tax liability can still benefit, are designed to make health insurance affordable by reducing a taxpayer’s net cost of insurance. The credits will be available even to families with incomes at (and above) the median level, which, in 2010, was $75,148 for a family of four and $42,863 for an individual. For eligible individuals with income up to 250% of the federal poverty level, the Act also authorizes federal payments to insurers to help cover those individuals’ cost-sharing expenses (such as co-payments or deductibles) for insurance obtained through an exchange. CBO projected that 83% of people who buy non-group insurance policies through exchanges will receive premium tax credits, (20 million of 24 million), and that those credits, on average, will cover nearly two-thirds of the premium,

In addition to those incentives through tax and other subsidies to purchase health insurance, Congress assigned adverse tax consequences to the alternative of attempted self-insuring. Congress provided that, beginning in 2014, non-exempted federal income taxpayers who fail to maintain a minimum level of health insurance coverage for themselves or their dependents will owe a tax penalty for each month in the tax year during which minimum coverage is not maintained.

And, just for supporters of the law (I am one), here’s a short, brutal description of the opposing brief that you might find amusing:

The challengers to the health care mandate have filed their Supreme Court brief – the definitive statement of the case against the mandate, drawing on the strongest arguments that have been made against it by advocates and federal judges, and authored by conservative superlawyer Paul Clement. It is astoundingly thin and weak. A standard admonishment to young lawyers is that they should address the very strongest arguments on the other side, instead of substituting weak caricatures of their opponents’ views. Yet the brief does this repeatedly.

Now, it has been clear for some time that the most articulate opponents of the mandate (who include such formidable intellects as Richard Epstein, Randy Barnett, and Gary Lawson) have just this in mind. They despise the modern state and want to blow it up. But the Supreme Court has no such revolutionary ambitions. The challenge for the challengers of the law, then, is to come up with a theory that lets them win this case without committing the Court to the end of American civilization as we know it. Clement evidently could not figure out how to do that (other than – here he shows excellent sense – being coy about the implications of his argument). If you accept his brief’s logic, then it is not clear how, say, the Environmental Protection Agency could survive, since there is no enumerated power to keep the country’s air breathable or its water drinkable.

As I’ve noted in a different context, when a lawyer as good as Clement makes arguments this bad, it tells you a lot about how desperate his case is.

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Observing The Anniversary

As the Affordable Care Act turns two today, the Serious Village Types are contractually obligated to inform us that it was the worst piece of legislation ever conceived and that President Obama is the worst politician of all time for wasting time trying to get GOP votes for the bill, and then going it alone without them, assuring they would vow to destroy the law.

We are assured that everyone hates the bill, left, right, and center, despite the fact that elements of the bill are popular (particularly the parts involving coverage for pre-existing conditions and keeping kids on insurance plans to age 26.)  But at this point I think Republicans have vastly overplayed their hand on it for three reasons.

One is MetamorphoMitt.  The one thing from his past that he can’t shake away is MassCare.  Two, the GOP really can’t stop themselves from twirling their collective evil mustaches when doing things like voting to kill the Medicare cost review board while complaining that Medicare costs too much.  The other is the GOP assault on women’s rights, which is seriously driving away voters of both sexes.

All of these are going to seriously put a dent in the amount of damage the Republicans can do in November.  And call me crazy, but I think the Supreme Court may punt on the law until 2014 because the mandate isn’t in effect yet, and precisely because the GOP has done zero to replace the law should it be struck down, there’s a fair argument that nuking the law would be a massive burden for the states and for individuals.  Indeed, the government’s argument is that without a replacement set of laws, the entire health care system itself could be at risk if the mandate is severed.

Meanwhile, the parts of the law that are going into effect are working slowly and surely behind the scenes, and the law is rolling inexorably forward.  I think we’re going to be okay here.

[UPDATE]  Sarah Kliff over at Ezra’s House O’ Wonk has a detailed rundown of the changes already made by the law.

 

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Some Common Sense From the Court

This is refreshing:

The Supreme Court has turned down an appeal from Christian groups that challenged a discrimination policy at California state universities.

The justices on Monday are leaving in place a federal appeals court ruling that found that the policy doesn’t violate the Constitution. The policy says officially recognized campus groups can’t discriminate based on religion or sexual orientation.

Basically, what these folks wanted was not their constitutional rights, but special rights to violate school policy and have an officially recognized campus group be given an exception to be bigots. It’s all outlined in conservapedia’s explanation of the 1st Amendment.

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Texas is a little different

Anne Laurie wrote about the latest conservative effort to gut the Voting Rights Act last week, but I want to return to it, because the political commentary that is developing on the Texas case is interesting.

The Texas voter suppression law really is different than the new laws in Wisconsin and Pennsylvania, or the new laws in South Carolina and Tennessee, because the Texas law targets Hispanics:

On Monday, the Justice Department blocked Texas’ voter ID law , and the state is fighting back. At a forum in Dallas Thursday night, Republican candidates running to replace Kay Bailey Hutchison in the Senate argued that the Justice Department is trying to stop Texas from implementing “common-sense law.” Rick Hasen reported on his Election Law blog that Texas is not only challenging the Justice Department on the merits of its decision, but is arguing that Section 5 is an unconstitutional infringement on states’ rights.

A state’s right to do what? This argument goes back to the dark days when states argued that the federal government had no right to interfere with their mistreatment of minorities. It took a Civil War, two constitutional amendments, the blood of civil rights activists, an act of Congress, and courageous Supreme Court justices to put an end to that. The ideologically driven Roberts bloc has already allowed the financially powerful to drown out other voices in campaigns. It would be tragic if they allow the politically powerful to decide who gets to vote.

First, let’s call it what it is. The burgeoning battles over state redistricting and voter ID laws—and the larger fight over a key part of the Voting Rights Act itself—are all cynical expressions of the concerns many conservatives (of both parties) have about the future of the American electorate. The Republican lawmakers who are leading the fight for the restrictive legislation say they are doing so in the name of stopping election fraud—and, really, who’s in favor of election fraud? But the larger purpose and effect of the laws is to disenfranchise Hispanic voters, other minorities, and the poor—most of whom, let’s also be clear, vote for Democrats.
Jonathan Chait, in a smart recent New York magazine piece titled “2012 or Never,” offered some numbers supporting the theory. “Every year,” Chait wrote, “the nonwhite proportion of the electorate grows by about half a percentage point—meaning that in every presidential election, the minority share of the vote increases by 2 percent, a huge amount in a closely divided country.” This explains, for example, why Colorado, Nevada, and Arizona are turning purple instead of staying red. “By 2020,” Chait writes, “nonwhite voters should rise from a quarter of the 2008 electorate to one third. In 30 years, “nonwhites will outnumber whites.”

The laws in the other states I listed may also affect Hispanic voters, but the Texas law puts Hispanic voters front and center in this dispute, simply because of the demographic make-up and (current and projected composition) of the electorate in Texas, and that’s new in a case that is going to get national attention.

I’ve written here before that I have been on several conference calls on voting rights in Ohio, and I can tell you, listening to others on those calls, that this issue is huge for those Democrats and liberals who are members of minority groups or act as voting rights advocates for members of minority groups. Simply, people want the right to vote. They want the right to the franchise protected. They want someone in state and federal government to protect their right to vote.

I think the fact that the Voting Rights Act challenge is based on the Texas law takes us into new terrority on the politics of voter suppression, and that new political terrain may be less favorable for conservatives than it has been previously, because conservatives actually rely on Hispanic voters to win elections in places like Texas, and Hispanic voters are projected to be such a large portion of the electorate in places like Texas:

So if section 5 doesn’t apply to “long past sins” against black voters, what about current sins against Hispanic voters? If the Voting Rights Act was originally designed to protect the rights of black Americans to vote, do we now need a new Voting Rights Act that would protect the rights of Hispanic Americans to vote? If so, why aren’t federal lawmakers tripping over themselves to get on the good side of a voting bloc that is going to increase in power over the next generation? Oh, that’s right. As Chait reminds us, we are not quite yet at the point at which the benefit of shilling for Hispanic votes outweighs the burden of angering white voters.
It’s unlikely new legislation is needed—we can still use the old reliable 1965 statute and apply it to new circumstances like the ones presented now. But does the discriminatory effect of state ID laws have to be so bad—“violence, terror and subterfuge” is how Justice Thomas put it—before the federal government may step in against a state? Or is it enough to establish that there is a national effort by conservative groups to press for these types of laws? (Ironic, isn’t it, in a dispute conservatives argue is states’ rights, that so many of these state voter ID laws would be conceived within the Beltway.)

Should be really interesting to see how this plays out politically, now that conservatives themselves have taken voter suppression out of the context of “the past” and placed it squarely in the context of the present and future, by targeting a voting bloc that is projected to increase in number and power over the next generation, and targeting voters that they are (supposedly) still seeking to court.

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No money from nobody

He tries again:

For the third time in eight years, former state appellate judge William M. O’Neill will try to replace a Republican incumbent on the Ohio Supreme Court. O’Neill, who retired from the 11th District Court of Appeals in Warren in 2007, defeated Hamilton County Municipal Court Judge Fanon A. Rucker in today’s Democratic primary.
With 73 percent of precincts reporting, O’Neill led 72 percent to 28 percent in the state’s only contested primary for Supreme Court. He moves on to face Justice Robert R. Cupp, who was unopposed today, in November. The high court is dominated by the GOP, 6-1.
The Ohio Democratic Party backed Rucker, 40, over O’Neill, 64, in the race. O’Neill refuses to raise money for his campaign, saying justices become beholden to the private interests that fund their campaigns.
In 2004 and 2006, O’Neill won Democratic primaries but lost to Justice Terrence O’Donnell, a Republican, in the general election.

Okay, full disclosure; I helped O’Neill in his last losing general judicial campaign in 2006. I didn’t do much, although I did hand these out at parades:

There is a small printing press in the garage of Judge O’Neill. In the evenings, he and his children produce fliers for a long-shot no-money campaign for Justice O’Donnell’s seat on the Ohio Supreme Court. “We’re going to do a million pieces for $4,000 from my pocket,” Judge O’Neill said, explaining that he will not accept a penny in contributions. Even some of his supporters view his effort as quixotic, notwithstanding the higher ratings Judge O’Neill gets from many Ohio bar associations.

2006 was a very good year for Democrats in Ohio, so no one in the county Party was at all interested in O’Neill’s quixotic campaign. It was a little lonely out there at those parades, handing out the homemade fliers, although people don’t pay attention to judicial elections so when you’re asking for votes at a parade people sometimes assume you’re the judge who is running.

“Thank you for coming out, judge”, they say, as you cram the flyer into their hand. Oh, my pleasure, but I prefer “your honor”, so show some damned respect. And take that ball cap off, young man, and look at me when I’m speaking to you. I was sick with black robe disease and I’m not even a judge. I don’t know if my inadvertent impersonation of then-Judge O’Neill helped him or hurt him in 2006, but I can’t explain every little thing to everyone on a parade route.

From the 2006 race:

Judge O’Neill’s assertion that seats on the Supreme Court are for sale infuriates many in the legal establishment in Ohio, and in July 2004 the Disciplinary Counsel of the Ohio Supreme Court began an investigation into whether Judge O’Neill had violated judicial ethics by making similar statements in the last campaign.
Judge O’Neill laughed when asked if the investigation worried him.
“I am a Vietnam veteran, and I lost my wife 10 years ago,” he said. “I raised four kids by myself. When you talk about fear, I fear big things in life. Being hauled before a disciplinary counsel does not qualify.”
For the time being, a federal judge has suspended the investigation on First Amendment grounds. If the Ohio Legislature is troubled by Judge O’Neill’s conduct, the federal judge, Ann Aldrich wrote, “the proper solution is to stop electing judges and make state judgeships appointed offices.”
Judge O’Neill disagreed. He likes elections, he said.
“We have more authority over people’s lives than anyone else in elected office,” he said. “We decide who goes to jail and who gets out of jail. We decide what happens to your life savings after you die. We decide whether or not you will be permitted to finish raising your child. I can’t think of any other industry that has a more profound impact on people’s lives. And it is arrogant at best that some committee should make this appointment.”

This is O’Neill’s site. See what’s missing? A donate button.

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Democracy enthusiasts had a big win in Wisconsin yesterday

The Wisconsin voter ID law won’t go into effect, yet. The decision is based on the Wisconsin state constitution.

A judge in Wisconsin’s Dane County granted a temporary injunction barring enforcement of the state’s controversial voter ID law on Tuesday, ruling that enforcing the law on April 3 elections would likely cause irreparable harm.

The Wisconsin State Journal reports that Circuit Judge David Flanagan ruled that a suit by the NAACP’s Milwaukee branch and Voces de la Frontera against Gov. Scott Walker® had demonstrated that the lawsuit would probably succeed on its merits. He ordered Walker and the state to immediately cease their efforts to enforce or implement the law, pending a trial on April 16.

“If no injunction is issued, a clearly improper impairment of a most vital element of our society will occur,” Flanagan wrote in his decision, according to the newspaper. “The duty of the court is clear. The case has been made. Irreparable harm is likely to occur in the absence of an injunction.”

The judge in Wisconsin had to deal with Crawford, so we will too. Crawford is the really unfortunate US Supreme Court decision that opened the door to all of these brand new voter suppression laws:

In a 6-3 decision, the U.S. Supreme Court today rejected a challenge to Indiana’s most-restrictive-in-the-nation voter identification law. The American Civil Liberties Union’s case, Crawford v. Marion County Election Board- consolidated with Indiana Democratic Party v. Rokita – is an appeal of two lower court decisions that upheld the state’s law requiring voters to present government-issued photo IDs in order to vote. The ACLU argued that the Indiana law creates an unconstitutional burden on voting rights.
“Today’s decision minimizes the very real burden that Indiana’s voter ID law places on tens of thousands of eligible voters who lack a government-issued identification while accepting at face value Indiana’s unsubstantiated claim of voter fraud,” said Ken Falk, Legal Director of the ACLU of Indiana and lead counsel on the case.
In January 2007, the U.S. Court of Appeals for the Seventh Circuit in Chicago upheld Indiana’s voter ID law by understating the right of every individual to vote without being subject to undue burdens imposed by the state. There is no evidence that Indiana’s voter ID law is justified by any actual problem of voting fraud, which is already prohibited by various criminal statutes in the state. No cases of in-person voting fraud have been prosecuted in the state in recent history.

The court in Wisconsin drew a distinction between the Indiana law that Crawford allowed and the new Wsconsin voter suppression law for a couple of reasons, one of which was that Indiana allowed those voters denied a standard ballot to vote a provisional ballot and file an affidavit within ten days showing indigency. If they did that, their vote would be counted. Maybe. Provisional balloting is much more complicated than dealing with a standard ballot, and it doesn’t work very well, as a practical matter. In Wisconsin, the voter must accept a provisional ballot and appear within three days and provide a photo ID.

At the time Crawford was decided, the Indiana law was the “most restrictive in the nation”. That’s no longer true. The Wisconsin law is more restrictive than the Indiana law, and that’s a pattern.
One of the many, many things you’ll never hear conservatives talk about regarding these laws is this: they are evolving. They get increasingly restrictive with each pass. Ohio put in a voter ID law in 2005. The moment conservatives came back into power, in 2010, they added further restrictions. Voting enthusiasts and others gathered the requisite signatures and put Ohio’s newest voter suppression law on the ballot for 2012. In Ohio, that means the law doesn’t go into effect until voters have a say. Conservatives responded by threatening to repeal their own law and replace it, which would make the referendum on the law moot. As of today, no voter in Ohio knows which rules will be in place on election day, 2012. Presumably, conservatives will tell us their plans prior to all of us arriving at the polling place on election day, but I wouldn’t count on it.

I think conservative lawyers and the paid pundits who promote these laws should have to explain why the laws they’re pushing through are more restrictive with each passing year. They invented the voter impersonation fraud problem that voter ID laws supposedly address. They could never prove “the problem” existed, and that of course means we on the voter access side will never be able to prove that the increasingly restrictive laws fix “the problem”.

Once we’re untethered from reality, and we are, there’s no end to how far we’ll be told we have to go.

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