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Thursday
Jun282012
The Commentariat -- June 29, 2012
My column in the New York Times eXaminer today is titled "David Brooks -- Constitutional Scholar." The NYTX front page is here.
Art by DonkeyHotey.
** Neal Katyal, former Acting U.S. Solicitor General under President Obama, in a New York Times op-ed: "Time will tell whether today’s decision foreshadows things to come.... Americans are growing increasingly comfortable, if not always happy, with the idea of nine men and women in Washington handing down rulings that remove decisions from the legislative process or even rewrite legislation altogether. While Chief Justice Roberts wrote an opinion that was apolitical and deserves much praise for its statesmanship, he did so within a legal context that is becoming less and less democratic.... It makes imperative a serious conversation about judicial restraint." CW: Katyal goes into detail -- but clearly explained -- about the implications of the ruling on future legislation. Read the whole piece.
Prof. Laurence Tribe gets into the weeds -- a bit more difficult to comprehend than Katyal, but worth it.
Tom Scocca of Slate: "By ruling that the individual mandate was permissible as a tax, [Chief Justice Roberts] joined the Democratic appointees to uphold the law -- while joining the Republican wing to gut the Commerce Clause (and push back against the necessary-and-proper clause as well).... This is a substantial rollback of Congress' regulatory powers, and the chief justice knows it. It is what Roberts has been pursuing ever since he signed up with the Federalist Society. In 2005, Sen. Barack Obama spoke in opposition to Roberts' nomination, saying he did not trust his political philosophy on tough questions such as "whether the Commerce Clause empowers Congress to speak on those issues of broad national concern that may be only tangentially related to what is easily defined as interstate commerce." Today, Roberts did what Obama predicted he would do." Thanks to Haley S. for the link. ...
Judge Richard Posner, a Reagan appointee to the Appellate Court, on why the Commerce Clause was sufficient grounds to uphold the ACA. Posner ends, "I am surprised, finally, by the lifelessness of the joint dissenting opinion."
Dahlia Lithwick of Slate: "I think Chief Justice Roberts ... threw himself on his sword for the court in a way that would have made William Rehnquist proud." ...
... Lithwick reminds us of this prescient April 4, 2012, post by Linda Greenhouse. ...
... In her post today, Greenhouse speculates that Roberts had a late-breaking change of heart & switched his decision from nay to yea. But she also notes that, however & whenever he came to his decision, he is playing a long game.
E. J. Dionne: "The court's mixed verdict could create problems, notably in its weakening of the law&'s Medicaid provisions in the name of states' rights. While the impact of this part of the ruling is not fully clear yet, the court may have effectively denied health-care coverage to a large number of poorer Americans." ...
... Sarah Kliff of the Washington Post: "That ruling, experts say, could leave some of the poorest Americans in a 'no-man's land:' Not covered by the federal entitlement program but not eligible for the subsidized health insurance."
Let me recommend the best medicine in the world: a long journey, at a mild Season, thro' a pleasant Country, in easy stages. -- James Madison, 1794
Health insurance itself is unconstitutional. James Madison, who wrote the damned Constitution, opposed doctoring altogether. But Congress could pass a mandate requiring leisurely sojourns in the Dordogne. -- Constant Weader Originalist
Smashing Broccoli. Charles Pierce: ... and why Sen. Jim DeMint (RTP-S.C.) is "the greatest walking argument there is that the Civil War was a complete waste of blood and treasure."
Paul Krugman: "... the winners from that Supreme Court decision are your friends, your relatives, the people you work with -- and, very likely, you.... The law that the Supreme Court upheld is an act of human decency that is also fiscally responsible.... At one level, the most striking thing about the campaign against reform was its dishonesty.... But what was and is really striking about the anti-reformers is their cruelty.... The cruelty and ruthlessness that made this court decision such a nail-biter aren't going away."
CW: my favorite videographer Jed Lewison of Daily Kos compares & contrasts Obama's & Romney's statements to the press. As Lewison writes, "Once again, it turns out that President Obama's best surrogate in making the case against Mitt Romney ... is Mitt Romney. Obama's campaign team couldn't in a million years have done a better job of making Mitt look small":
Alec MacGillis of The New Republic: "The fight over the Affordable Care Act now shifts fully into the political realm, with Mitt Romney (the law's pioneer!) as its last line of attack. Which means that it will be up to Barack Obama and other Democratic candidates to finally be making the forthright, full-throated defense they have until now shied from."
Nancy Pelosi, John Boehner & Affordable Care Act. (Actually, the photo was taken Wednesday, but it still works for me.) Photo via Steve Benen of the Maddow Blog.Steve Benen: "... it's worth singling out Nancy Pelosi, who fought harder and worked longer to get the nation to this point."
Helen Philpot comments on the ruling, which naturally leads her to remarks like this: "The only interest the Tea Party has in making government smaller is that a smaller government will more easily fit in a woman's vagina." Thanks to reader Bonnie for the link.
AND the Award for the Best Headline of the Day Goes to -- Dana Milbank: "The Umpire Strikes Back."
Right Wing World --
Taxes, Treason & Terrorism
Taxes! General Rushbo Gives the Foot Soldiers Their Marching Orders. Brett LoGiurato of Business Insider: Rush Limbaugh "railed against the Supreme Court on his radio show Thursday, blasting John Roberts and saying that America had 'been betrayed and deceived by the Supreme Court.' He said it was the 'largest tax increase in the history of the world. What has been upheld here is fraud, and the Internal Revenue Service has just become Barack Obama's domestic army.... That is what we face now. We were deceived. Obamacare was a lie. It was a stealth tax on all Americans, and nobody knew it until today. Not officially. Obama told George Stephanopoulos it wasn't a tax.'" With audio. CW: this is the same language I heard coming from all over Right Wing World yesterday, including from Members of Congress. The militaristic language is as absurd as it is scary. What is entirely deceptive about the claim of course is that for ordinary citizens it makes absolutely no difference what you call the penalty for not carrying health insurance. This is not, as Rushbo & the troops are pretending, a "new tax"; rather, it's a different name for a fine that was already in place. It is true that -- as Tom Scocca outlines above -- Roberts' ruling makes a huge difference because the effect is to limit Congress's ability to regulate interstate commerce. But in the instant law, that makes no difference to Joe Schmo. If he can afford to buy health insurance & doesn't, he's going to pay a fine/tax/penalty/premium/offset/whatchamacallit.
Treason! Matt Lewis of the Daily Caller: "Conservative leader and chairman of ForAmerica, Brent Bozell had harsh words for Supreme Court Chief Justice John Roberts. 'His reputation is forever stained in the eyes of conservatives, and there will be no rehabilitating of it,' Bozell said. 'He will be seen as a traitor to his philosophy. If the swing vote had been Kennedy, conservatives would have been disappointed, but not surprised.... But the fact that it was Roberts, I think, was shocking.... People are already talking about the idea that he could be replaced as Chief Justice.'"
Terrorism! Jake Sherman of Politico: "In a closed door House GOP meeting Thursday, Indiana congressman and gubernatorial candidate Mike Pence likened the Supreme Court's ruling upholding the Democratic health care law to the Sept. 11 terrorist attacks.... He immediately apologized."
Presidential Race
Tim Egan: Mitt Romney is still a weasel. CW: I think Egan is wrong when he writes that Romney would not "deny care to those with pre-existing conditions"; Romney has said more than once that people who don't have health insurance & can't get it are out of luck. But I might be wrong: maybe Romney has changed his position; it's been known to happen occasionally.
New York Times Editors: "Because the Supreme Court did not repeal the law, Mr. Romney vowed to do so himself on his first day as president, a vow that will be impossible to fulfill, not just on his first day, but ever if he cannot round up 60 votes in the Senate. Otherwise the heath care law will stay on the books, and ... he will have taken an oath to uphold it.... Much of what he said was flatly wrong. The law does not add 'trillions to our deficits and to our national debt.' It lowers the deficit...." ...
... David Firestone of the New York Times lays into a few more Romney lies. ...
... Jamelle Bouie in the Washington Post: "The fact that Romney has decided to fabricate knocks against the Affordable Care Act is a sure sign that this ruling was bad for his campaign."
Other Stuff That Matters ...
Eric Holder Is Black. Charles Pierce: "Out in front of the capitol, assistant Democratic leader Jim Clyburn had just finished saying, "This is not about oversight. This is about overkill.... This is Dan Burton, who was going after Ron Brown because of stuff he made up. Now it's Chairman Issa, going after Attorney General Holder over stuff he made up.' You will note that Clyburn didn't cite Bill Clinton, Burton's major target back in the day, but the late Ron Brown, another African-American cabinet member. Clyburn's meaning could not have been clearer. Then, Minority Whip Steny Hoyer, who is so good with the whip that 17 members spit in the administration's eye..., took the microphone, and the first thing he said was, 'This is not about race.'" CW: And the guy Eric Holder works for is black. And Eric Holder is fighting GOP efforts to disenfranchise black voters. No, this just could not be about race, could it, Steny? ...
... Dave Weigel of Slate on why Republicans can't celebrate their contempt citation of AG Eric Holder -- because, the citation wasn't about politics, see; it was about getting to the truth for the Terry family -- relatives of Brian Terry, the border patrol agent killed with a U.S.-purchased gun by members of a Mexican drug cartel. CW: I don't know why nobody says this: Terry was killed with an American gun because Republicans have made gun laws -- especially in Texas -- so lax that U.S. law enforcement could not prosecute the purchasers even though they knew what the gunrunners were up to. The GOP is blaming Eric Holder for laws they & their colleagues in state legislatures put in place. This is a classic case of passing the buck.
... And Stuff That Doesn't
Every day that I've been a United States Senator, I've been either discussing issues [or] ... in Secret Meetings with Kings and Queens and Prime Ministers.-- Sen. Scott Brown (R-Mass.)
CW: I keep forgetting to run this. M. J. Lee of Politico, June 21: "Sen. Scott Brown raised eyebrows by saying in a radio interview Thursday that he has 'secret meetings with kings and queens' and other leaders every day." ...
... Glen Johnson of the Boston Globe: "Remember Scott Brown’s gaffe ... about meeting with kings and queens? His staff was quick to say the comment was a flub, acknowledging that the senator has not actually met with royalty. But the Massachusetts Democratic Party today released a video showing four prior examples when Brown used the same phrasing about meeting with 'kings and queens' while speaking to audiences as part of his reelection bid." CW: the video is truly hilarious:
News Ledes
The Hill: "Congress on Friday approved legislation that will extend federal highway programs through 2014, a low interest rate on student loans for one year, and the National Flood Insurance Program (NFIP) for five years. Leaders in the House and Senate negotiated the giant package, leaving no doubt that it would have enough support to pass. The bill will likely be the last major piece of legislation approved by Congress until after the November elections."
Swift Justice. Washington Post: "The Justice Department declared Friday that Attorney General Eric Holder's decision to withhold information about a bungled gun-tracking operation from Congress does not constitute a crime and he won't be prosecuted for contempt of Congress." The House voted Thursday afternoon to hold Holder in contempt. The DOJ wrote to Speaker Boehner announcing its decision in a letter dated Thursday but not released till today.
AP: "U.S. Supreme Court Chief Justice John Roberts joked that he'll spend some time on an 'impregnable island fortress' now that the court has ended a session that featured him casting the decisive vote to uphold President Barack Obama's health care law."
Denver Post: "The roaring Waldo Canyon fire that exploded into west-side neighborhoods of Colorado Springs destroyed 346 homes -- making it the most destructive wildfire in state history. It also has claimed at least one life. Colorado Springs Police Chief Pete Carey announced late Thursday that human remains had been found in a burned home in the Mountain Shadows neighborhood." Includes map, links to related stories.
Guardian: "European leaders have pulled back from the brink of disastrous failure in their attempts to rescue the euro, throwing a lifeline to the weakest links in the eurozone by agreeing to shore up struggling banks directly, remove disadvantages for private creditors and move quickly towards a new supervisory regime for banks.... Italy and Spain stunned Germany by blocking progress until they obtained softer bailout rules in 14 hours of bad-tempered talks." New York Times story here.
New York Times: "As global powers prepared for an 11th hour effort to revive the stalled peace effort in Syria, Kofi Annan, the special envoy and mediator who called the meeting, said on Friday he was optimistic that that talks in Geneva would yield an acceptable result despite Russian calls for changes in his settlement ideas." ...
... BUT. AP: "Government troops rained tank and artillery shells down on a rebellious suburb of the Syrian capital of Damascus Friday, killing at least 43 people over two days, opposition groups and activists said."
Washington Post: "The Air Force is investigating a growing sexual-misconduct scandal in its basic-training operations, with a dozen male boot-camp instructors under suspicion of assaulting, harassing or having sex with female recruits. The case originated with a single complaint filed a year ago by a woman at Lackland Air Force Base in Texas. It has snowballed into potentially the worst sex scandal in the U.S. military since 1996."
Washington Post: "United Technologies, a major defense contractor, and two of its subsidiaries on Thursday acknowledged covering up the illicit sale of sensitive military software to China -- technology that the country later used to develop its first attack helicopter. Federal prosecutors announced criminal charges against the firms and a fine of more than $75 million for what they called a violation of U.S. export laws. Justice officials said the software sold to China posed a risk to American troops overseas and U.S. allies." CW: and you know the Pentagon will keep letting contracts to UT. So, big punishment.
New York Times: "Rupert Murdoch played offense on Thursday, embarking on a rare publicity campaign to extol the economic prospects of News Corporation's newspapers after announcing earlier that they would be spun off into a separate company." Guardian story here.
New York Times: "An anonymous survey of nearly 2,000 retired officers found that the manipulation of crime reports -- downgrading crimes to lesser offenses and discouraging victims from filing complaints to make crime statistics look better -- has long been part of the culture of the New York Police Department."
AP: "Japan and South Korea put on hold an intelligence sharing pact less than an hour before it was to be formally signed Friday, in a major embarrassment for both countries forced by a political outcry in Seoul."
AP: "China's first female astronaut and two other crew members emerged smiling from a capsule that returned safely to Earth on Friday from a 13-day mission to an orbiting module that is a prototype for a future space station."
ABC News: "A U.S. Army battalion commander was killed by a fellow soldier on Thursday in a shooting incident at Fort Bragg, N.C. The alleged gunman then shot himself and is in custody; a third soldier was slightly injured in the shooting."
AP: "Struggling BlackBerry maker Research In Motion Ltd. said Thursday it will delay the launch of new phones deemed critical to the company's survival and revealed its business is crumbling faster than thought. The Canadian company posted results for its latest quarter that were worse than analysts had expected. It's cutting 5,000 jobs and unexpectedly delaying the launch of its new phone operating system, BlackBerry 10, until after the holiday shopping season."
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Reader Comments (11)
Thanks Marie for mentioning the utter inanity of the right-wing outrage--over a gun that they would die rather than regulate--killing someone it wasn't supposed to. In the wake of yesterday's SC ruling, through the haze of the hatred spewed by Rush and his acolytes, I could see the array of legal armories that have been built up by many who appear to be just waiting for the signal.
I wish I were kidding. All over America, there is a pretend way of life that is dying--the fierce self-sufficient individual. Living in society, which is mandatory for most of us these days in that people won't stop having lotsa babies, requires socialization. Even those of us who don't think of ourselves as especially social will notice, when we review a day or a week, that we have done an improptu kindness or kept a possibly hurtful opinion to ourselves without feeling especially proud or saintly.
The current grizzly mama Republican wet dream seems to do away with many of the niceties developed since Daniel Boone roamed these lands. They are disdainful of those of us who make personal sacrifices for social reasons, who are willing to take 80% of the loaf if the other 20% builds bridges, employs teachers, and helps people who are in distress.
The reality, as we know, is that the hardy frontiersmen and women who scream the loudest about "freedom" live in states that receive back more money from the federal government than their citizens pay in. They are net recipients. They receive welfare from the federal government, from my paycheck (now, but especially during the 25 years I lived in NYC). I don't begrudge them. There really is enough to go around. However, I wish that someone would clue them in so that they might drop the act.
As Poppy once said, though (or maybe it was Dana Carvey), "Not gonna happen ..." And that's why the guns make me uneasy. Why does a man need 30 or 40 guns? Is there that much variety among deer? Reassure me.
Forget guns. All talk at any level by any person with any government connection is amunition for the NRA. Gun controls are even less likely to succeed than single payer medical care. Guns are a lose, lose, so do not create targets for the NRA.
Make them rant about nothing. Perhaps, in a decade or two, the sane will outnumber the insane.
Lot's of luck Mitt. Our President and the fickle Democrats looked like a cluster pluck writing the Affordable Care Act. Then they compounded the problem by failing to take the public into their confidence by explaining it.
With constant attacks and rebutting over the next three months there is a good chance the selling job will get done. More and more Americans will discover that there is nothing in the Act that harms them and many things that help them, their family, or their friends.
The vilification intended to destroy Affordable Care, may finally sell it to all thinking Americans as well as some non thinking ones.
The President started the process just hours after the SCOTUS announcement.
Marie, your statement 'Congress could pass a mandate requiring leisurely sojourns in the Dordogne' is an excellent idea! It is the perfect way to teach Americans about healthcare and other things about the lives of those nasty socialist French fools. As some one how has actually made that trip, I can think of several lessons to be learned. First of course is if you trip and fall on one of those stone streets you will get outstanding medical care without getting a bill. And one of the other pieces is driving. You will discover that everyone drives in the right lane except to pass, stops at every stop sign and lets the first person through, stops at every traffic circle so that those already in don't have to slam on their brakes and more. The driving lesson is all about ... what's that word? Oh. Polite.
Yes for many Americans, France is really a weird place.
P.S. One of my most memorable French moments occurred in a restaurant in Arles. While having dinner, two gentlemen sitting next to us finished. They realized we were not French so they asked for our permission to smoke. I am still waiting for a similar moment is the US.
Thoughts on the right’s whirligig reactions to yesterday’s ruling.
First, I can’t recall a single instance, and I may be wrong about this (happily I was dead wrong yesterday), of progressives rising up with such furious hatred and bluster over a Supreme Court ruling and vowing not to abide by its tenets. We might not like it. Might hate it, actually. But inciting treason over it? Declaring that we will not under any circumstances obey the law? Threaten to eviscerate those who supported it? It's part and parcel of what Jack is getting at in his earlier post.
Can anyone recall such a reaction?
I can however think of any number of other rulings after which conservatives actually did try to reject implementation of the law. Brown for one, Miranda for another. When Miranda was handed down, conservatives were fit to be tied. Led by Mr. Law and Order hisself, Trickus Dickus (pay no attention to the arm-length list of federal statutes and local laws personally broken by President Dickus, remember, as he warned us, if the president does it, it isn’t illegal. Sounds vaguely like “L’etat c’est moi”), they began a long battle against the rights of the accused. The conservative controlled judiciary has steadily chipped away at Miranda as surely as they have added to the powers of the police. I think Marie pointed out the other day the interesting take that Little Johnny has on the concept of "cruel and unusual". If I recall correctly, she maintained that, according to Roberts’ New Thinking, if every police force in the country maces innocent bystanders, just for, ya know, the public safety thing or whatever, it couldn’t then be categorized as "unusual", could it? Wonderful legal reasoning. Roberts would have been right at home in the Third Reich. Killing Jews? Meh. Nothing unusual about that. Everyone does it. Perfectly okay.
But I digress. What about Brown? Conservatives fought a vicious fight on the front of desegregation (but does anyone believe that had Dred Scott been passed by this court the likes of Limbaugh and Jim DeMint and Rand Paul would be the first to applaud?) for decades. Federal troops had to be called out to force conservatives to believe that the court meant what it said. But here, over half a century later, right-wingers are STILL up in arms over Brown. They’re STILL fighting for their right to live in a segregated world.
The right is nothing if not persistent and creative when it comes to ignoring and trying to subvert the rule of laws they don’t like.
I read this morning that Rick Scott has declared that he—like that other legal scholar Rand Paul—doesn’t believe the ACA to be constitutional and will do everything he can to ensure it not be enforced in the state of Florida. Of course he brings impeccable credentials to the discernment of illegalities where health care is concerned, he being forced to resign under a flurry of felony charges and abusive and fraudulent medical billing practices, and having to pay hundreds of millions in fines. Oh yeah, THAT Rick Scott. Never mind. I’ve not heard a single media outlet—even NPR—remind people of that when they tout Scott’s bona fides as a commentator on the subject of medical care delivery.
But, oh well.
The right is gearing up for a long war. They’re awfully good at waiting, like snakes, in the tall grass. Their media army and foot soldiers in congress and governors' mansions are on the march declaring anyone who supports the ACA a traitor.
The really hysterical thing about this entire sideshow is that the ACA was a right-wing idea. The fucking HERITAGE FOUNDATION, fer crissakes. AND there actually WAS no constitutional issue at stake. Roberts played a masterful game along that line.
This entire cluster has been manufactured.
But here we are. Right-wingers are working like the dogs they are to make sure that anyone who can still be denied care under the law, will be. The poorest of the poor. That’ll show ‘em who’s boss!
The ever-vigilant dominant conservative media machine is looking for all manner of reasons the law won’t work. The new big idea is that there aren’t enough doctors to take care of all those undeserving new patients. That means long lines and that’s just what Obama wanted in the first place!!!
Just once I’d like to hear some media outlet--I'll even take the Lake Benton Valley Journal or the Wahkiakum County Eagle--start listing the benefits of the ACA to the average American instead of retreading diatribes and screeds from the right.
I’ll wait. Maybe in that restaurant in Arles that Marvin mentioned. That'd be nice.
In re the ACA decision, let us also realize the President's courage. His administration could have punted the argument, and therefore the decision, to after the election. Given the makeup of the court, it was difficult to be confident of the outcome, months ago. A cautious politico could easily have deferred a decision that would certainly come a few months before the election. President Obama seems to have the courage of his convictions, and put his money where his mouth is. That takes guts. That should mean a lot, this election, to those who have not already made up their minds. On the other side of the ballot you have "The Tergiversator."
Simple question from a simple person. Why is a U.S. Senator secretly meeting with Kings and Queens? Do Kings and Queens of other nations have more influence in the law making process of the U.S. than Citizens of Massachusetts?
Roger,
Ha! Secret meetings with kings, queens, and prime ministers. Who? The king of Tonga? Prime minister of Bulgaria?
I think Brown actually meant that he was sitting at Burger King listening to a Queen Latifah song on the radio and trying to memorize a speech by Winston Churchill which he could pass off as his own.
Can you believe this bozo? No wonder he doesn't want to debate Elizabeth Warren on neutral ground. Without the support of right-wing talk radio droolers he'd be shucked like an oyster.
A dish fit for royalty, no doubt.
I thought Tribe's piece excellent and he's obviously for Obama and his health care. Tribe has a reputation of being one of the best constitutional lawyers in the country; he and Obama worked together in Chicago. But trying to get one's mind around the intricacies of the law is difficult, yet I think I got the big picture here. And the spoiled sports on the right mouthing asinine threats of repealing all this is like spitting in the wind.
Answer to Roger's query: Only in the mind of Scott Brown who goes about his busy day humming the song from Camelot, "What do the Simple Folk do?" He fancies himself part of a royal party that dines on turtle soup and kumquats while in deep discourse with monarchs from yonder countries who advise him on how to proceed in the senate since he's somewhat daft and dulcet.
PD,
Great answer. And don't forget that, as Brown knows, the simple folk sit around all day and wonder what he and other royal folk do. He has it on the best authority (not being one of the simple folk himself).
Ahh...it's so hard being at the center of so much adoration and other important....ahh...stuff.
Akhilleus, PD, Picking myself from the floor, having fallen from my chair laughing, I must now thank you for your delicious answers for my simple question.