Weekly Hit & Run Archive 2012 June 22-31

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We're Living in Tuttle's (Or is it Buttle's?) World Now

One of the genius elements of the insanely wonderful/wonderfully insane movie, Brazil, is the representation in the film of a repressive state as essentially an exercise in banal bureaucracy. There is nobody to hold accountable, no specific policy to protest, and even violent, misfired police raids are exercises in wrongly processed paperwork that — so sad, too bad — mistakes Mr. Buttle for Mr. Tuttle. A strong argument can be made that, with ObamaCare and the Supreme Court decision that upheld it, we're living in Mr. Buttle's world now.

The sort of reasoning that brought us this verbiage, courtesy of the majority opinion, provides revealing insight into the modern authoritarian state:

None of this is to say that payment is not intended to induce the purchase of health insurance. But the mandate need not be read to declare that failing to do so is unlawful. Neither the Affordable Care Act nor any other law attaches negative legal consequences to not buying health insurance, beyond requiring a payment to the IRS And Congress’s choice of language—stating that individuals “shall” obtain insurance or pay a “penalty”—does not require reading §5000A as punishing unlawful conduct.

Really, that's brilliant! Once upon a time, authoritarians overtly made you do something. You had to carry a card, sign a document, or otherwise engage in conduct that, should you be so inclined to throw yourself into the maw of the machine, could be resisted with a grand gesture. You could burn your draft card, refuse a signature or stubbornly and openly fail to comply. And the state would acknowledge the grand gesture with some over-the-top arrest, and a trial at which your principled act of resistance was met with specific charges targeting the same.

But "Neither the Affordable Care Act nor any other law attaches negative legal consequences to not buying health insurance, beyond requiring a payment to the IRS"? Really? Suddenly it's just a tax matter. Refuse to buy insurance as mandated by the state and...your tax refund gets reduced. Carefully calibrate your taxes so there is no refund and your wages get garnished. Take it the extra step and...the most you can accomplish is an arrest for refusing to pay taxes, No principled opponent of government-dominated health care, you—just another tax dodger. It's a charge well-removed from the target of defiance, which leaves the principled dissenter flailing at nothing more than smothering red tape.

Brilliant. Really.

You could say that it's cowardly of modern politicians to hide behind the bureaucracy and refuse to confront their detractors head-on, but these are people more concerned with control than courage.

And in their world, Mr. Buttle — and dissenters of all sorts — are just paperwork concerns.

The Supreme Court's Anti-ObamaCare Dissenters Take Down the Argument That ObamaCare's Mandate Is Constitutional As a Tax

In the majority opinion in today's Supreme Court health care ruling, Chief Justice John Roberts ruled that the law's health insurance mandate is constitutionally valid as a tax, despite the fact that the law itself does not describe the provision as a tax. 

In a joint dissent, Justices Kennedy, Alito, Scalia, and Thomas beg to differ:

Our cases establish a clear line between a tax and a penalty: “‘[A] tax is an enforced contribution to provide for the support of government; a penalty . . . is an exaction imposed by statute as punishment for an unlawful act.’” In a few cases, this Court has held that a “tax” imposed upon private conduct was so onerous as to be in effect a penalty.  But we have never held—never—that a penalty imposed for violation of the law was so trivial as to be in effect a tax.  We have never held that  any exaction imposed for violation of the law is an exercise of Congress’ taxing power—even when the statute calls it a tax, much less when (as here) the statute repeatedly calls it a penalty. When an act “adopt[s] the criteria of wrongdoing” and then imposes a monetary penalty as the “principal consequence on those who transgress its standard,” it creates a regulatory penalty, not a tax.  

Prior to the Supreme Court, nearly all of the judges who had ruled on the law—even those who deemed it constitutional—agreed that whatever else the mandate might be, it was clearly not a tax

Chief Justice Roberts and the rest of the majority also managed to rule that the mandate was not a tax, at least for the purposes of the Anti-Injunction Act

Attorney General Eric Holder in Contempt of Congress Over "Fast and Furious"

Not even Holder's own Democratic Party was united for him, though the Congressional Black Caucus found the whole thing "appalling" and led a walk off the floor in protest.

Details from CBS:

The House of Representatives voted to hold Attorney General Eric Holder in contempt of Congress Thursday for failing to provide documents relating to the Fast and Furious gunwalking program.

The House took two votes, one on criminal contempt charges, which passed 255-67.

But ah! Don't expect much action. Separation of powers!

The criminal contempt of Congress is likely not to go anywhere as the Justice Department, which Holder heads, is the department responsible for opening a criminal investigation.

But there's more:

The second charge, which passed 258 - 95, was a civil contempt charge, could move to federal court where it could take years to litigate. Though the action puts more pressure on the administration to abide by the subpoenas and provide requested documents.

The Democratic Party was split on the action. Seventeen members voted with the Republicans to hold Holder in criminal contempt while just under two dozen voted to hold him in civil contempt. 

Holder says hell no:

Attorney General Eric Holder reacted after the first vote, criticizing House Republicans for "making reckless charges" and "advancing truly absurd conspiracy theories."

He called the vote against him "a regrettable culmination of what became a misguided - and politically motivated - investigation during an election year. By advancing it over the past year and a half, Congressman Issa and others have focused on politics over public safety."

What it's all about:

Republicans investigating the scandal say the answers to many outstanding questions could lie in tens of thousands of pages of documents the Justice Department has failed to turn over citing that they're part of the internal deliberative process or ongoing investigations.

Several weeks of closed door discussions between members of Congress, their staff, Justice Department officials and even Holder himself resulted in a stalemate. President Obama granted Holder's request for executive privilege to keep the documents from Congress, but House Republicans question if the action is further evidence of a cover up.

The Justice Department had offered to provide a "fair compilation" of the outstanding documents if Republicans on the House Oversight Committee would agree -- in advance -- to end their investigation once and for all. Republicans balked when the Justice Department refused to provide a log of the withheld documents and descriptions of why they were being held back, as routinely required in court disputes of this nature.

I blogged the other day about a "journalist of the year" who thinks we should all just stop being so damn nosy about Fast and Furious.

As you may have seen floating around the social networking worlds where people try to say all concerns they can label as "right-wing" are crazy, there's a very long Fortune report says the program was not deliberately designed to let guns walk off into the hands of Mexican criminals and that the whole hub-bub is overblown.

Note: I am not as of now equipped to independently judge the perspicacity of that Fortune story, which does read very special-pleading for its sources in various ways. I cite it in fairness and for your information, not in endorsement. Katie Pavlich at Town Hall does a good job taking Fortune on, thanks to commenter "cockgobbla" for the link on that. 

Though it's worth remembering as per the above, at this point Holder's problems are about the cover-up, not the crime, if crime there was.

Nick Gillespie vs. Maddow and Maher on the matter:

Nick Gillespie on CNN's Erin Burnett OutFront, Talking Obamacare, 7pm ET

I'll be on CNN's ErinBurnett OutFront tonight, talking Obamacare, the Supreme Court, what comes next, you name it.

The show starts at 7pm ET and I should be on right near the beginning.

More info here.

How Obamacare, Like Medicare, Royally Screws Young People

So Rep. Nancy Pelosi (D-Calif.) is "ecstatic" over today's Supreme Court ruling that the Affordable Care Act, a.k.a. Obamacare, has passed constitutional muster. As are many others.

But the youngsters out there, especially those who bought into President Obama's message of hope and change, should make sure they understand how his signature achievement is going to screw them even more royally than Medicare already does. Avik Roy at Forbes lays it out thus:

Obamacare forces insurers to charge their eldest beneficiaries no more than 3 times what they charge their youngest ones: a policy known as “community rating.” This, despite the fact that these older beneficiaries typically have six times the health expenditures that younger people face. The net effect of this “community rating” provision is the redistribution of insurance costs from the old to the young.

That's for premiums in the much-discussed and yet-to-be realized government exchanges for health care. The same principle is already at work to various degrees in community rating pools for workplace-provided insurance.

In the August/September issue of Reason (on newsstands now but not yet online), I've co-authored a piece about "Generational Warfare" with Veronique de Rugy in which we document the ways in which the old-age entitlements of Social Security and Medicare systematically loot the relatively young and relatively poor to pay benefits to the relatively old and relatively rich. Obamacare is simply the latest variation on that awful dynamic.

Nick Gillespie is co-author with Matt Welch of The Declaration of Independents: How Libertarian Politics Can Fix What's Wrong With America, now out in paperback with a new foreword.

ObamaCare Decision: Medical R&D Could Decline, New York Times Sees Libertarian Victory (Sort Of), Tweeters Threaten to Move to Canada

  • Video: Healthcare economist Paul Keckley says ObamaCare ruling could reduce biotech and health industry investment in research and development, predicts hospital consolidations.
  • The New York Times says libertarians may be unhappy the Affordable Care Act wasn’t entirely struck down, but can celebrate that the ruling did indicate limits to the Commerce Clause.
  • Overwrought Republican congressman and gubernatorial candidate Mike Pence compares ruling to 9/11, apologizes.
  • Rather confused tweeters upset over the ruling threaten to move to Canada.
  • Libertarian presidential candidate Gov. Gary Johnson will hold a livestreamed meeting at 9:15 p.m. Eastern to discuss the ruling

Ira Stoll on SCOTUS ObamaCare Ruling: emphatic rejection of former constitutional law professor's constitutional acumen

At FutureofCapitalism.com, where they still believe capitalism has a future, Reason.com contributor Ira Stoll finds four bright spots in the Supreme Court's ruling in National Federation of Business et al v. Sebelius:

New media beats old media. CNN's initial report, that the law was struck down, was incorrect... 

By calling the mandate a tax, the court made an official ruling that President Obama had violated his 2008 campaign promise not to raise taxes on anyone earning less than $250,000 a year...

[I]n the end it may well be better for the country for these decisions to be made through the political process rather than by a group of nine robed graduates of Ivy League law schools in a non-televised proceeding...

Finally, though the ruling was in some sense a vindication for Obama on the constitutionality of the law, in other ways it was a pretty emphatic rejection of the constitutional acumen of a president who is, after all, a former professor of constitutional law. Even Elana Kagan, President Obama's own appointee to the court and his former solicitor general, and Justice Breyer, a former aide to Senator Edward Kennedy, agreed that the Medicaid expansion part of the law was unconstitutional.

Five Justices Rejected the Government’s Commerce Clause Theory. Does that Count as a Legal Precedent?

While Chief Justice John Roberts sided with the Supreme Court’s liberals today in order to uphold ObamaCare’s health insurance mandate under Congress’ power to “lay and collect Taxes,” Roberts also sided with the Court’s conservatives in rejecting the Obama administration’s sweeping argument that the individual mandate was permitted under Congress’ power “to regulate commerce...among the several states.”

Does the Commerce Clause portion of today's ruling count as a binding precedent? It might. As Georgetown law professor Lawrence Solum points out at his Legal Theory Blog, the part of Roberts’ opinion which describes why the individual mandate may be described as a tax “suggests that this characterization was influence by the fact that this characterization was necessary to uphold the mandate (and hence perhaps the entire ACA as constitutional).” In other words, when federal judges turn to Roberts’ ruling in the future, they may be required to take his description of the Commerce Clause and its limits into account.

As textual evidence for this reading, Solum points to the following passage from Roberts, which "might be read as signalling that the Commerce Clause discussion was necessary to the logic of the opinion." Here's Roberts:

Because the Commerce Clause does not support the individual mandate, it is necessary to turn to the Government’s second argument:  that the mandate may be upheld as within Congress’s enumerated power to “lay and collect Taxes.

That does sound like Roberts’ Tax Clause argument cannot be divorced from his Commerce Clause argument. I’d also add that Roberts makes the point even more explicit when responding to Justice Ruth Bader Ginsburg’s sharp attacks on his "crabbed reading" of the commerce power:

JUSTICE GINSBURG questions the necessity of rejecting the Government’s commerce power argument, given that §5000A can be upheld under the taxing power. But the statute reads more naturally as a command to buy insurance than as a tax, and I would uphold it as a command if the Constitution allowed it.  It is only because the Commerce Clause does not authorize such a command that it is necessary to reach the taxing power question. And it is only because we have a duty to construe a statute to save it, if fairly possible, that §5000A can be interpreted as a tax.  Without deciding the Commerce Clause question, I would find no basis to adopt such a saving construction.

So the upshot is that Roberts’ powerful dismissal of the government’s unprecedented Commerce Clause theory may end up binding lower court judges and serving as precedent for future Supreme Court cases.

Why the GOP Will Wish It Could Lead with Ron Paul After This ObamaCare Ruling

As readers of Reason have been reminded far and near, Mitt Romney, no matter how tough he's talking now, has some credibility issues when it comes to attacking ObamaCare as a potential president.

Not that everyone shouldn't know this by now, but Peter Suderman summed it up back in May 2011:

ObamaCare, which includes a health insurance mandate, is a near carbon copy of RomneyCare: a hefty Medicaid expansion coupled to equally large middle-class insurance subsidies, new regulations that all but turn health insurance into a public utility, and an individual mandate to buy a private insurance plan. Indeed, the same Obama administration that Romney accused of being fundamentally anti-American has on multiple occasions explicitly cited the plan that Romney signed into law as the direct model for their plan.

Romney’s only real contrast between his plan and the president’s plan boiled down to a single, simple distinction: Obama’s overhaul was a federal overhaul; Romney’s was state-based. Romney would have us believe that the same system of mandates and regulations that constitutes an unconscionable imposition on individual liberty at the federal level is somehow a natural and great part of the American way of life at the state level. 

Suderman again, from earlier this month:

The GOP candidate's promises to do away with the president’s health law have never been terribly convincing: His plan to offer states waivers to avoid the law probably won’t work. His promises to push for repeal have always come across as hollow when paired with his defense of his own law.

That’s even more true now. Not only did Romney accept the mandate in Massachusetts, he forcefully defended it while his staff insisted on its inclusion. And despite widespread distrust of Romney’s commitment to unwinding the federal health care overhaul, Romney decided to appoint as a senior adviser someone who profits from ObamaCare and professionally urges conservative legislators to fall in line with one its key directives despite contrary advice from every major policy shop that opposes the health law.

Does this sound like someone whose commitment to opposing ObamaCare and its mandate is in any way reliable? It’s almost as if Romney doesn’t really find ObamaCare or its underlying structure particularly objectionable, and is merely pretending to vehemently oppose the law because he believes that’s what the voters his campaign is targeting want to hear.

Indeed, though even the Tea Party, supposedly so energized by ObamaCare hate, seems willing to sigh and take Romney.

But even if we believed Romney will for political expedience barrel through with anti-ObamaCare Tea Party talking points for political gain whether or not he is credible or really believes it, he can't really "repeal it in day one" without Congress's going along, nor would his "state waiver" plan likely do what he claims it will.

A House repeal vote is scheduled for July 9. Good luck, congressional Republicans. Timothy Carney argues, interestingly, that given the "tax" nature of the decision, reducing that "tax" to zero counts as budget reconciliation and thus can't be filibustered, thus requiring only 51 Senate votes to essentially repeal that part in the Senate. And good luck with that, Senate Republicans.

The fate of ObamaCare, as some bemoan and some cheer, a matter for the politicians now. While some darkly suspect Roberts was pressured by Obama forces to give in, others suspect he was in fact knowingly helping Romney forces to allegedly help ensure enough angry energized Republican voters to smash Obama in November. Perhaps Obama the health care martyr would be a better energizer of his base, while the GOP can count on its forces rising to beat Obama the health care dictator.

Romney certainly can presume most anti-ObamaCare potential voters (there are still lots of them) probably thinking they have nowhere else to go. But who would have been a more effective anti-ObamaCare standardbearer? Ron Paul, of course.

Paul's comments on the decision:

"I strongly disagree with today’s decision by the Supreme Court, but I am not surprised.  The Court has a dismal record when it comes to protecting liberty against unconstitutional excesses by Congress.    

"Today we should remember that virtually everything government does is a 'mandate.'  The issue is not whether Congress can compel commerce by forcing you to buy insurance, or simply compel you to pay a tax if you don’t.  The issue is that this compulsion implies the use of government force against those who refuse.  The fundamental hallmark of a free society should be the rejection of force.  In a free society, therefore, individuals could opt out of “Obamacare” without paying a government tribute.

"Those of us in Congress who believe in individual liberty must work tirelessly to repeal this national health care law and reduce federal involvement in healthcare generally.  Obamacare can only increase third party interference in the doctor-patient relationship, increase costs, and reduce the quality of care.  Only free market medicine can restore the critical independence of doctors, reduce costs through real competition and price sensitivity, and eliminate enormous paperwork burdens....

And Paul talking up the problems with ObamaCare earlier this week:

supporters of Obamacare are willfully ignorant of basic economics. The fundamental problem with health care costs in America is that the doctor-patient relationship has been profoundly altered by third party interference. Third parties, either government agencies themselves or nominally private insurance companies virtually forced upon us by government policies, have not only destroyed doctor-patient confidentiality. They also inescapably drive up costs because basic market disciplines — supply and demand, price sensitivity, and profit signals — are destroyed … Obamacare, via its insurance mandate, is more of the same misdiagnosis.”

Ron Paul, as above, has demonstrated understanding of why health care costs are so damn high (hint: RomneyCare has not actually contained costs), and it's because of the absurd and complicated system of third party payments and supply reductions imposed by government mandate.

Paul also knew that the Court would validate the mandate, back in March, and wrote in the sort of rhetorical move that should appeal to leftists a bit worried about government forcing us to buy a product from huge powerful corporations, in his book Liberty Defined, "A better description of...the past forty to fifty years is the takeover of medical care by the corporations. We now have a form of corporatism veering toward fascism....Regardless of party, corporate special interests  are protected....Corporations, unions, and government stand between patients and their doctors regardless of motivation. The quality and cost of medical care can never be improved by forcing on the American people greater debt-financed involvement in medical care."

Paul argues against not only the expansion of government involvement in medicine inherent in ObamaCare but also the past government incursions on the market for making both insurance and health care costs rise, thus making him the only consistent voice for the principles of government involvement in health care reined in not only by a more consistent interpretation of proper congressional power, but economic sense as well.  

Thus, while Paul is himself more federalist than many libertarians like, he doesn't accept Romney's excuse that mandating insurance purchase in Massachusetts was the right thing to do whereas doing it federally is not. Such mandates would never be the right thing to do, and fall under no proper understanding of what government is even for.

Romney may be able to get away with the two party game of blaming the latest extension of crappy governing principles on the other guy, but neither he nor any other prominent Republican seem to actually understand why our health care system was such a mess that ObamaCare could even pass--or are prepared to explain the moral, legal, constitutional, and economic reasons why nearly all government interference in health care is a bad idea. Only Ron Paul could do that.

With the Court granting Congress potentially limitless power to do anything under the taxing power, this decision reminds us that we need a sea change not just in the Nine Supremes. (It is worth noting that there is a reasonable libertarian-friendly interpretation of today's decision, which some cheer and some jeer, that in rejecting the Commerce Clause arguments Roberts has indeed stabbed post-New Deal pro-state jurisprudence in the heart even if the blood didn't stain the mandate)

The change, as Ron Paul always recognized, needs to be in the political philosophy and action of the people as a whole. And Paul was the only GOP candidate who consistently and fully understands and can be relied to act on the principled reasons why ObamaCare was and is wrong.

Alas, the Tea Party sold out that One True Voice against ObamaCare and the reasons we got ObamaCare, and without some version of his ideas animating national politics, ObamaCare may eventually be killed, but the forces that have led to massive and growing health care expenses will remain. That will merely trigger the next feckless state-run solution to a problem that would be far better served by less government involvement, not more.

My book on the meaning of Ron Paul writ large, Ron Paul's Revolution: The Man and the Movement He Inspired.

Could Medicaid Ruling Lead to Challenges to Other “Voluntary” Federal Funding Regulations?

As Peter Suderman noted, the majority opinion in today’s ObamaCare ruling allows states to opt out of expanding their Medicaid programs without threatening all of their federal Medicaid funding. From the majority opinion:

When Congress threatens to terminate other grants as a means of pressur­ing the States to accept a Spending Clause program, the legislation runs counter to this Nation’s system of federalism. …

The threatened loss of over 10 percent of a State’s overall budget is economic dragooning that leaves the States with no real option but to acquiesce in the Medicaid expansion.

The federal government regularly threatens to withhold funding to states in order to encourage compliance with federal guidelines. New federal rules on preventing prison rape would withhold five percent of the federal funding for any state or municipal facility that declined to comply with their guidelines, and there are scores of other examples. The Supreme Court gave its nod of approval in South Dakota v. Dole in 1987, when the state challenged federal pressure to raise the drinking age to 21 or lose five percent of its highway funding.

Could all these federal rules now be in jeopardy? Jordan Weissmann at The Atlantic explored the issue with Michigan Law Professor Samuel Bagenstos, who filed an amicus brief supporting the Medicaid expansion:

The grounds on which they found this Medicaid expansion to be coercive are not entirely easy to figure out. But they are problematic for other federal spending laws, for other cooperative federal programs. I could foresee, and I do foresee, that there will be a number of challenges over the next months and years to a number of cooperative federal spending programs, like the Elementary and Secondary Education Act, particularly depending on what changes ultimately get made to No Child Left Behind and what kind of regulations get imposed on states for federal education funds. I think there could be challenges to the Individuals with Disabilities Education Act. There could be challenges to the civil rights statutes that impose conditions on the states that accept federal funds, like the Rehabilitation Act, which prohibits disabilities discrimination. So there are lots of possibilities that are opened up by this ruling to challenge well-entrenched cooperative federal spending programs. Those opportunities didn't exist before today because the court had never a condition on federal spending coercive to the states.

Today’s decision, though, emphasizes that the undue coercion of the Medicaid expansion is because it would withhold the entirety of the Medicaid funding from non-compliant states, not just five or ten percent. In South Dakota v. Dole, the majority did not determine five percent to be sufficiently coercive to overturn it. So now there’s an ambiguity of what does and does not count as “coercion” when the federal government threatens funding in order to encourage regulation compliance from the states.

Of Course Nancy Pelosi Wore Her Lucky Shoes Today, Probably Had as Much to Do With the Decision as the Constitution. Constitution? Are You Serious?

That Nancy Pelosi today wore her lucky purple pumps (just like when ObamaCare passed!*) became a bit of a thing, mentioned in the Twitterverse, the blogosphere and the cable news world. This magical thinking could mean more to the former speaker than the Constitution. Who knows? Democrats insisted the individual mandate was not a tax, liberal apologists pointed to the truck-sized constitutional loophole known as the commerce clause and the then Speaker Pelosi famously asked “are you serious?” to a question about the constitutionality of ObamaCare. And the purple pumps seem a much sounder basis for what Pelosi identifies as the right to healthcare (via tax!) than anything in the Constitution, real or imagined. 

*It passed “like a kidney stone,” but it passed.

Complete Reason coverage of ObamaCare.

ObamaCare Wins a Taxing Victory, Turkey Sends Troops to the Border, Cops SWAT Open WiFi Network: P.M. Links

  • Throwing President Obama and his unpopular health care scheme a lifeline, the Supreme Court put aside the president's denials that the individual mandate is a tax and upheld the law as exactly that. More fun with the IRS!
  • The Supremes gave thumbs-down to the "Stolen Valor" law that criminalized false claims about receiving military awards. The law violated First Amendment guarantees of protection for free speech.
  • Senator Rand Paul is making waves and building support by blocking major Senate legislation in order to force consideration of amendments on issues that concern him, such as gun rights, banking privacy and abortion.
  • The situation heats up in the Middle East (does it ever cool down?) as Turkey sends troops and military equipment to the border with Syria.
  • There's only one clinic left in Mississippi where you can terminate a pregnancy, and new regulations threaten to shut the place down and "effectively ban abortion." The Jackson Women’s Health Organization plans to sue.
  • Police in Evansville, Indiana, carefully tracked down the source of online threats of violence against local cops, raided the home, broke (open) doors, sent flashbangs banging and waved guns — and found they'd hit the wrong place. The house had an open wifi router, and the threats came from elsewhere.
  • Comparison of dinosaur bones to those of modern animals provides new evidence for the theory that the ancient critters were warm-blooded.

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The Biggest Change in the Supreme Court's Health Care Ruling? Allowing States to Opt Out of ObamaCare's Medicaid Expansion

Although the Supreme Court upheld the bulk of ObamaCare as constitutional, the majority ruling made one substantial change: States can now choose not to implement the Medicaid expansion, which accounts for about half of the law’s expansion of health coverage, without risking their current federal Medicaid funding.

This is potentially a huge change, and as a result many states are likely to seriously consider opting out. If they do, that means that the much-touted law’s coverage expansion would be far smaller, perhaps millions less than estimated. Indeed, thanks to the court’s Medicaid ruling, we may end up with many states in which ObamaCare is essentially not implemented — a piecemeal, state-by-state version of ObamaCare in which some states exist substantially outside the law’s reach.

Medicaid, a health program for the poor and disabled, is jointly funded by states and the federal government, with the federal government kicking in more than half the money to run the program on a matching basis. It’s not quite as big as Medicare, but it’s still a huge program that plays a major part in state budgets: On average, federal Medicaid funds represent about 10 percent of each state’s total budget.

Technically, Medicaid is a voluntary program, and each state has a slightly different arrangement with the federal government. But ObamaCare requires all participating states to expand the program so that it covers all individuals up to 133 percent of the poverty. The only other option is to drop out the program entirely — and potentially lose all funds as a result. As originally drafted, the law gives the Health and Human Services secretary the power to completely cut off all existing federal Medicaid funding if a state chooses not to implement the law’s Medicaid expansion.

The federal government can induce states to regulate, applying financial pressure by withholding funding. But the Constitution prohibits the federal government from requiring states to regulate: The pressure cannot be so strong as to constitute compulsion. The administration argued that the states still had a choice whether or not to participate in the program, and therefore there was no coercion. But the states said that the threat of losing such a large chunk of their funding was so severe, so unthinkable, that it was not really a choice.

Chief Justice John Roberts, writing a majority opinion, agreed. “In this case,” he writes, “the financial ‘inducement’ Congress has chosen is much more than ‘relatively mild encouragement’—it is a gun to the head.” Federal Medicaid funds already play such a large role in state budgets that no state could afford to lose them. “The threatened loss of over 10 percent of a State’s overall budget...is economic dragooning that leaves the States with no real option but to acquiesce in the Medicaid expansion,” writes Roberts.

What’s more, Roberts notes that ObamaCare’s Medicaid expansion represents a fundamental change in the nature of the program:

“The Medicaid expansion...accomplishes a shift in kind, not merely degree.  The original program was designed to cover medical services for four particular categories of the needy: the disabled, the blind, the elderly, and needy families with dependent children....Under the Affordable Care Act, Medicaidis transformed into a program to meet the health care needs of the entire nonelderly population with income below 133 percent of the poverty level.  It is no longer a program to care for the neediest among us, but rather an element of a comprehensive national plan to provide universal health insurance coverage.”

The upshot? “As a practical matter," Roberts says, "that means States may now choose to reject the expansion; that is the whole point.”

The Supreme Court, in other words, has made it possible for states to decline to participate in a program that accounts for a huge portion of ObamaCare’s coverage expansion: If the 26 states that challenged the law all opted out, the projected coverage expansion would decline by about 8.5 million individuals — all near or below the poverty line. It's not clear whether they would then get private insurance subsidies, but they would presumably still be subject to the coverage mandate. 

Given how much states are already spending on Medicaid, it seems likely that many will consider opting out: Although the federal government would pay for 100 percent of the coverage for the newly eligible for the first few years, the state obligation would gradually increase until the end of the decade, when states would have to pick up about 10 percent of the tab. That may not sound like much, but it would amount to billions in additional health care spending for some states. With Medicaid already wrecking state budgets, it’s quite plausible that several will say no thanks to ObamaCare’s Medicaid expansion.

Overall, this dramatically expands the choices for state governments. Already they had the option to decline to set up health insurance exchanges as called for the by the law. In theory, the federal government would then step in to create an exchange, but it’s not at all clear that the federal government has the necessary funding or authority to get funding. If a state opts out of both exchange creation and the law’s Medicaid expansion, it will be able to avoid many of the law’s costs and consequences, and position itself largely beyond the reach of the law. Which may leave us with a fractured, quasi-federalist health care overhaul in which some states have exchanges and a beefed up, federally managed Medicaid program and other states avoid participation almost entirely. 

Update: At The Washington Post, Sarah Kliff notes that if states did opt out, it's likely that many of those who didn't get Medicaid coverage would still not qualify for private insurance subsidies:

What we do know is this: If a state does not expand its Medicaid program, it would create a “donut hole” in insurance coverage for low-income Americans.

The federal law was written with the assumption that all people living below the poverty line would become eligible for Medicaid. Federal subsidies, therefore, would be unavailable to anyone making less than that — even if the state opts out of the Medicaid expansion.

That could mean that some of the poorest Americans would be the ones who do not gain coverage through the Affordable Care Act. ”It creates a no-man’s land,” Salo said.

ObamaCare Decision: Justice Kennedy Slams Colleagues, Rubio Warns of IRS Role, Government Still Can't Mandate Economic Activity

  • Justice Anthony Kennedy, once considered the swing vote in the ObamaCare case, read his dissent from the bench, saying, "In our view, the act before us is invalid in its entirety.” He slammed his ACA-supporting colleagues for “a vast judicial overreaching.” The strongly worded dissent has some folks shivering.
  • Senator Rand Paul says screw the Supreme Court, "Just because a couple people on the Supreme Court declare something to be ‘constitutional’ does not make it so. The whole thing remains unconstitutional."
  • Senator Marco Rubio warns that the Supreme Court's tax-reasoned support for the Affordable Care Act "put all of these millions of Americans at odds and at war with the IRS."
  • The unusual rationale for the Affordable Care Act ruling caught legal scholars off-guard. "Many people were stunned."
  • The Supreme Court's decision, while upholding ObamaCare, left intact the presumption that the government cannot mandate that people engage in economic activity.
  • Now all of the fun moves to Congress, so the debate over government's role in health care continues.

SCOTUS On "Police Power," or, How Romney Can Spin RomneyCare v. ObamaCare

In his uphill battle to use fury over ObamaCare in his drive to unseat President Barack Obama, former Massachusetts Gov. Mitt Romney will always have a weak spot in his line: In the Bay State, he instituted the precursor to ObamaCare's individual mandate.

The text of the Supreme Court's ruling in National Federation of Business et al v. Sebelius [pdf] may make it easier for Romney to make his argument that the individual mandate is legal at the state level but not at the federal: 

Because the police power is controlled by 50 different States instead of one national sovereign, the facets of governing that touch on citizens’ daily lives are normally administered by smaller governments closer to the governed. The Framers thus ensured that powers which “in the ordinary course of affairs, concern the lives, liberties, and properties of the people” were held by governments more local and more accountable than a distant federal bureaucracy. The Federalist No. 45, at 293 (J. Madison).  The independent power of the States also serves as a check on the power of the Federal Government: “By denying any one government complete jurisdiction  over all the concerns of public life, federalism protects the liberty of the individual from arbitrary power.”... 

This case concerns two powers that the Constitution does grant the Federal Government, but which must be read carefully to avoid creating a general federal authority akin to the police power.  The Constitution authorizes Congress to “regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.” Art. I, §8, cl. 3.  Our precedents read that to mean that Congress may regulate “the channels of interstate commerce,” “persons or things in interstate commerce,” and “those activities that substantially affect interstate commerce.”...

Any police power to regulate individuals as such, as opposed to their activities, remains vested in the States... 

Upholding the individual mandate under the Taxing Clause thus does not recognize any new federal power.  It determines that Congress has used an existing one

Second, Congress’s ability to use its taxing power to influence conduct is not without limits.  A few of our cases policed these limits aggressively, invalidating punitive exactions obviously designed to regulate behavior otherwise regarded at the time as beyond federal authority.

Romney still has the problem that in every single category of health care spending, Massachusetts has higher costs than the United States as a whole. The high court's ObamaCare ruling, it seems as I work my way through it, is made mostly or entirely on legal and separation-of-powers arguments, not economic arguments. So Romney still has no economic argument. But he can stand tall and declare, "I had the power to force people to buy health insurance, and I used it within the bounds of existing law and precedent." 

That should win him plenty of votes. 

Romney's actual response

As you might imagine, I disagree with the Supreme Court's decision and I agree with the dissent.

What the court did not do on its last day in session, I will do on my first day if elected president of the United States. And that is I will act to repeal Obamacare.

Let's make clear that we understand what the court did and did not do.

What the court did today was say that Obamacare does not violate the Constitution. What they did not do was say that Obamacare is good law or that it's good policy.

Obamacare was bad policy yesterday. It's bad policy today. Obamacare was bad law yesterday. It's bad law today.

Let me tell you why I say that...

Watch Boehner, Cantor and Pelosi Responses to ObamaCare Ruling

A couple more politicians for your viewing pleasure:

First Republicans Speaker of the House John Boehner and Majority Leader Eric Cantor vow to repeal ObamaCare:

Next, House Minority Leader and Democrat Nancy Pelosi speaks and answers questions, declaring the ruling "a victory for America's families":

Nancy Pelosi and John Boehner React to the Supreme Court's Health Care Ruling

While she claps, he rages:

On the one hand, the Supreme Court largely upheld President Obama's signature legislative achievement, a health care law that Rep. Nancy Pelosi was instrumental in passing during her time as Speaker of the House. On the other hand, the court upheld the law's individual mandate under the taxing power, which means that Rep. Boehner and his fellow Republicans will get to run against President Obama and the rest of the Democrats as having passed an unpopular law that breaks the president's explicit promise not to raise taxes on the middle class. 

Health Care Law Still on Trial in the Court of Public Opinion

Today, the Supreme Court ruled the Patient Protection and Affordable Care Act (ACA or ObamaCare)’s individual mandate can stand as a tax, thereby judging it constitutional. Chief Justice John Roberts was the swing vote in the 5-4 ruling. In stark contrast, polls have found consistent opposition to the law and public skepticism of its constitutionality.

A Fox News poll in early June found that 59 percent believe the individual mandate, if not the whole law, is unconstitutional. This is largely unchanged from a March Reason-Rupe poll which found 62 percent believe it is unconstitutional for Congress to require Americans to have health insurance. According to the same Fox News poll, 60 percent of Americans believe the federal government’s forcing Americans to buy health insurance is a violation of individual rights protected by the Constitution.

According to the March Reason-Rupe poll, the more people know about the health care law, the more likely they are to oppose it. Intensity is clearly against the law, among those who say they know most about the law, 70 percent have an unfavorable view of it, 29 percent have a favorable view of it.

A series of New York Times/CBS News polls find consistent opposition to the law. Soon after the law was passed in 2010, 53 percent disproved of the health care law, and 32 percent approved. Public sentiment has remained consistently opposed; the most recent poll conducted May 31-June 3rd of this year found 48 percent disapprove and 34 percent approve of the law.


An additional hurdle for the law will be public reaction to the law’s unintended consequences, for instance the likely steep increases in health insurance premiums, rationing, etc. Even Affordable Care Act chief architect Jonathan Gruber is backtracking on an earlier analysis, now saying individuals will experience dramatic premium increases.

Fifty-four percent of Americans expect the new health care law to result in rationing of the kind recess-appointed Medicare chief Donald Berwick thinks should be in place. For instance, in an his 1996 co-authored book, Berwick writes one of “the primary functions” of health regulation is “to constrain decentralized, individual decision making” and “to weigh public welfare against the choices of private consumers.”

The public reaction to unintended consequences stands to undermine even the more popular aspects of the law. For instance, although a majority of Americans (52 percent) favor the ACA’s community rating provision, which prohibits health insurance companies from charging different premiums based on medical history, support for this provision declines if it were to result in higher taxes (support drops to 37 percent), higher premiums (support drops to 38 percent), and longer wait times to see a specialist (41 percent).  Most dramatically, however, opposition skyrockets to 76 percent against the community rating provision if it were to result in lower quality health care.

According to the same March Reason-Rupe poll, 47 percent of Americans believe the employer mandate will lead to worker lay-offs and 58 percent think it will cause employers to pay their workers less.

In sum, although the health care law survived the Supreme Court ruling, it may have greater difficulty in the court of public opinion. The potential for lower quality care, higher premiums, longer wait times, rationing, and other unintended consequences may create additional obstacles for those who wish to continue reform in the direction of the ACA.

Emily Ekins is the director of polling for Reason Foundation where she leads the Reason-Rupe public opinion research project, launched in 2011. Follow her on Twitter @emilyekins.

California Endowment Loves SCOTUS Obamacare Ruling

Just as a reminder that the individual mandate (which Reason's Ron Bailey made the case for way back in 2004, before women had the right to vote) was once a bipartisan fave, here's how former members of the Schwarzenegger Administration are celebrating out in California: 

“Today’s decision by the United States Supreme Court is an affirmation that Americans, regardless of age, income, or pre-existing condition, are entitled to and deserve quality, affordable health coverage, including the more than seven million Californians who are uninsured”, said Daniel Zingale, Senior Vice President of The California Endowment. “For our state, today’s decision is both a fiscal blessing and a clear signal that there should be no more excuses. Covering the uninsured currently costs our state nearly $10 billion per year and we need to continue to move full speed ahead to ensure that millions of Californians take advantage of the new options and consumer protections provided by the law.”

Zingale headed up Gov. Arnold Schwarzenegger's unsuccessful effort to institute a universal health insurance requirement in California, though confusingly his official job was as something like a chief of staff to first lady of California Maria Shriver Schwarzenegger (a Democrat by birth and nurture). 

Other Democrats in other not-too-sovereign states dance the National Federation of Business et al v. Sebelius shuffle:

The Evergreen State

The Badger State

The Peach State.

The Show Me State

The Green Mountain State

The Garden State

The Centennial State

The Empire State

Oh, There Was That Other Supreme Court Ruling, Too: Stolen Valor Act Struck Down

Before it began raining broccoli across America this morning, the Supreme Court also ruled on whether it was legal to lie about having received military medals or honors.  It is. Or rather, it is for now, due to the vague wording of the Stolen Valor Act. Tejinder Singh of SCOTUSblog (and is this their moment, or what?) explains:

Justice Kennedy announced a plurality opinion [pdf] – joined by the Chief Justice, Justice Ginsburg, and Justice Sotomayor – and concluding that the Stolen Valor Act infringes on protected speech. The plurality reasoned that, with only narrow exceptions, content-based restrictions on speech face strict scrutiny, and are therefore almost always unconstitutional. False statements of fact do not fall within one of these exceptions, and so the Stolen Valor Act can survive strict scrutiny only if it is narrowly tailored to a compelling government interest. The Court concluded that the Stolen Valor Act is unconstitutional because the Government had not shown that the statute is necessary to protect the integrity of the system of military honors – the interest the Government had identified in support of the Act.

Justice Breyer, joined by Justice Kagan, concurred separately, concluding that the Stolen Valor Act, as drafted, violates intermediate scrutiny. These Justices argued that intermediate scrutiny is the appropriate standard because the Government should have some ability to regulate false statements of fact. However, because the statute, as drafted, applies even in family, social, or other private contexts where lies will often cause little harm; it includes few other limits on its scope, and it creates too significant a burden on protected speech. The concurring Justices believe that the Government could achieve its goals in a less burdensome way, and so they too held the Stolen Valor Act unconstitutional.  This opinion leaves open the possibility that Congress will re-write the law more narrowly. Three Justices, led by Justice Alito, dissented.

So, Congress can’t just pass a law that criminalizes a lie about one’s military history in all situations without violating the First Amendment. But the Court says a more narrowly tailored law could possibly survive scrutiny.

Biggest Winners Under ObamaCare: For-Prophets?

Jesus Christ made a quick appearance outside the Supreme Court Building this morning, admist the Affordable Care Act protesters and Tea Party Patriots. 

ObamaCare Decision: Ruling a Right-Wing Conspiracy?, Onward to Single-Payer, Eliminate the Tax to Eliminate the Mandate?

Mitt Romney’s Individual Mandate

When Mitt Romney first proposed something like an “individual mandate” for his healthcare reforms in Massachusetts (RomneyCare!), it was a big fucking deal. Time’s Joe Klein gushed over Romney on healthcare in a December 2005 column:

Governor Mitt Romney is a Massachusetts politician with a long, narrow face, an impossible shock of hair and presidential ambitions. He's also pretty tall. But any resemblance to another recent Massachusetts politician who ran for President evaporates the moment Romney opens his mouth: his demeanor and metabolism are the opposite of John Kerry's—informal, conversational, enthusiastic and speedy. Or maybe it was just that we were talking about his rather remarkable plan to bring mandatory universal health-care coverage to Massachusetts by next summer, the first time a Republican has tried to pull off this most Democratic of policy goals.

"I don't like calling it universal coverage," he told me last week. "That smacks of Hillarycare. But I do think we've come up with a way to get everybody covered through the free-market system." Romney's way is not new: policy wonks call it an "individual mandate" system, but the Governor doesn't like that term either. "I call it a personal responsibility system," he said.

Romney had made the move towards an individual mandate a few months earlier, as USA Today reported:

"We can't have as a nation 40 million people — or, in my state, half a million — saying, 'I don't have insurance, and if I get sick, I want someone else to pay,' " says Romney, a Republican who says he might run for president in 2008.
It's the question behind all health care debates: Who should pay?

Romney's plan says everyone should: The state would work harder to enroll all residents eligible for Medicaid; employers, most of whom already offer insurance, would be encouraged to continue doing so voluntarily; and individuals who don't have insurance would have to sign on to one of two new insurance pools, one of which would be subsidized for lower-income residents.

Failing to sign up could lead to a loss of a personal tax exemption or garnishment of wages.

Today, Mitt Romney reacted to the Supreme Court’s ruling on ObamaCare by promising to “repeal and replace” it. What might he replace it with? From his campaign website:

In place of Obamacare, Mitt will pursue policies that give each state the power to craft a health care reform plan that is best for its own citizens. The federal government’s role will be to help markets work by creating a level playing field for competition.

Libertarian presidential candidate Gary Johnson meanwhile suggested America may need a new Supreme Court in addition to a new president and Congress, and noted that “[n]othing about today’s decision changes the basic reality that it is impossible to eliminate deficit spending and remove the smothering consequences of federal debt without dramatically reducing the costs of Medicare and Medicaid.  And neither the Democrats nor the Republicans have given the slightest hint of willingness to do so.” Romney, of course, blasted ObamaCare for cutting Medicare by “approximately 500 billion dollars.”

Complete Reason coverage of ObamaCare.

Randy Barnett: A weird victory for federalism

Randy Barnett, lawyer and professor of constitutional law and contracts at Georgetown University Law Center, says the rewriting of the Patient Protection and Affordable Care Act (ACA or Obamacare) to make the individual mandate a tax rather than commerce clause regulation did not damage and may have advanced the case for narrowing the commerce clause. 

Today, the Roberts Court reaffirmed the “first principle” announced by Chief Justice Rehnquist some 17 years ago in Lopez: the federal government is one of limited and enumerated powers. It accepted all of our arguments about why the individual insurance mandate exceeded the commerce power:  “The individual mandate cannot be upheld as an exercise of Congress’s power under the Commerce Clause,” wrote Chief Justice Roberts. “That Clause authorizes Congress to regulate interstate commerce, not to order individuals to engage in it.”  Then the Court went farther to invalidate the withholding of existing Medicaid funding as coercive, thereby finding an enforceable limit on the Spending Power.

In the 1930s & 40s, when Congress was asserting new powers to address the grave distress caused by the Great Depression, the Court relented and allowed it to reach wholly intrastate activity that, in the aggregate had a substantial affect on interstate commerce.  This was interpreted by academics to mean that Congress now had a plenary power over anything that affected the national economy, which means any activity at all.  The Court would always defer to Congress’s assertion of its Commerce Clause powers.

I defer to Barnett's deep understanding, though my gut tells me bad rulings make bad law, and this one seems to read so tortured that even the concurrers (concurrors?) don't like it. (I admit I haven't finished reading it.)

Greg Beato on the Internet vs. the NEA

Has there ever been a better time to be a cobbler in Berlin with a dream to manufacture shoes with the message “Ich bin Atheist” emblazoned on their soles? Or a group of environmentally minded designers and technologists who’d like to establish a community-based air-quality sensing network? Or a sculptor who creates giant interactive signs aimed at encouraging people to contemplate the impact of capitalism on their lives?

Thanks to Kickstarter, the New York-based crowd-funding website, the visionaries behind these and approximately 20,000 other endeavors have been able to attract enough financial support to turn their dreams into reality. And as Greg Beato observes, last year Kickstarter funded more than three times as many projects as the National Endowment for the Arts did, in a wider range of disciplines.

View this article

Watch ObamaCare Decision Response Videos

President Barack Obama:

Gov. Mitt Romney:

Sen. Republican Leader Mitch McConnell:

And most importantly, bellydancers:

An Echo, Not a Choice: Health Care Edition

Before today the Republican Party was running against ObamaCare with a candidate who signed the pilot version of ObamaCare. Now it also gets to run against a Supreme Court decision written by a Republican appointee.

Roberts vs. Ginsburg on Constitutional Originalism

Chief Justice John Roberts isn’t likely to win any popularity contests among conservatives or libertarians today. But fans of the judicial philosophy known as originalism (which holds that the text of the Constitution should be interpreted according to its original public meaning) might still get a smile out of Footnote 4 from Roberts' opinion. In it, he rejects Justice Ruth Bader Ginsburg’s attempt at an originalist reading of the Commerce Clause, which Ginsburg believes allows Congress to regulate both activity and inactivity. Roberts writes:

JUSTICE GINSBURG suggests that “at the time the Constitution was framed, to ‘regulate’ meant, among other things, to require action.” But to reach this conclusion, the case cited by JUSTICE GINSBURG relied on a dictionary in which “[t]o order; to command” was the fifth-alternative definition of “to direct,” which was itself the second-alternative definition of “to regulate.” It is unlikely that the Framers had such an obscure meaning in mind when they used the word “regulate.”  Far more commonly, “[t]o regulate” meant “[t]o adjust by rule or method,” which presupposes something to adjust. [Citations omitted.]

Is There a Silver Lining to the Supreme Court's Obamacare Decision? Q&A with Reason Magazine's Peter Suderman

In a 5-to-4 decision, the Supreme Court upheld the Affordable Care Act by ruling that the individual mandate is legal under Congress' power of taxation, while giving states more flexibility in deciding whether to participate in the law's Medicaid expansion.

What does today's decision mean for the implementation of the law and the political effort to repeal it?

Nick Gillespie sat down with Reason Magazine Senior Editor Peter Suderman to discuss today's ruling and its implications for health care policy.

Approximately 8 minutes.

Camera by Jim Epstein and Meredith Bragg, and edited by Epstein.

Go to Reason.tv for downloadable versions and subscribe to ReasonTV's YouTube Channel to receive automatic updates when new material goes live.

Thank You, John Roberts, You Right-Wing Bastard

So maybe John Roberts isn't going to get much love for saving ObamaCare's ass after all. Writing for New York magazine, Jonathan Chait shows us a worldview in which Roberts's legal contortions to save what Adam Serwer at Mother Jones calls "[t]he largest expansion of the American welfare state since the Great Society" is actually a dastardly right-wing plot to reinterpret the Constitution in a really, really right-wing-y way according to a gradual, sneaky strategy.

Says Chait:

The fearful part is that five justices ruled that the Affordable Care Act cannot be upheld under the Commerce Clause. This is a bizarre and implausibly narrow reading — if Congress cannot regulate the health-care market, then it cannot really regulate interstate commerce. By endorsing this precedent, Roberts opens the door for future courts to revive the Constitution in Exile.

But Roberts will do it by a process of slow constriction, carefully building case upon case to produce a result that over time will, if he prevails, rewrite the shape of American law. What he is not willing to do is to impose his vision in one sudden and transparently partisan attack. Roberts is playing a long game.

You gotta give it to Chait. No slacker he, the man doesn't take a break from seeing monsters under the bed to savor the moment.

Update: Slate's Tom Scocca endorses the we-got-played conspiracy view:

Yes, Roberts voted to uphold the individual mandate, joining the court's liberal wing to give President Obama a 5-4 victory on his signature piece of legislation. Right-wing partisans are crying treason; left-wing partisans saw their predictions of a bitter, party-line defeat undone.

But the health care law was, ultimately, a pretext. This was a test case for the long-standing—but previously fringe—campaign to rewrite Congress' regulatory powers under the Commerce Clause.

Poor Time Picked the Wrong SCOTUS Obamacare Decider

Anthony Kennedy is not the decider, the first draft of history yet again wrong.

It was the "red-eyed" Chief Justice John Roberts (per the prolific Jeffrey Toobin's description) who read the Supreme Court's decision in the states' and peoples' suits against the Patient Protection and Affordable Act (ACA). 

So pour out a 40 for Massimo Calabresi & David von Drehle, who got this week's cover of Time magazine to declare that Justice Anthony Kennedy (who joined Justices Antonin Scalia, Clarence Thomas and Samuel Alito in a dissent from the court's majority ruling) would be The Decider. 

I once read through a box of Times from the 1940s, and Calabresi & von Drehle are not the first Time cover reporters to get details wrong during great events.

But it turns out that Kennedy not only didn't join the court's surging rightwing tide of Tea Party enfuried wrath against all human progress. He didn't join the majority at all. Here (courtesy of Washington Examiner) is what Kennedy had to say in the dissent:

“[T]o say that the Individual Mandate merely imposes a tax is not to interpret the statute but to rewrite it,” Kennedy, who was long regarded as a key swing vote in the case, wrote, adding that when passing taxes, “legislators must weigh the need for the tax against the terrible price they might pay at their next election.” He then suggested that Congress intentionally avoided passing the mandate as a tax in an effort to avoid that election disaster. “We have no doubt that Congress knew precisely what it was doing when it rejected an earlier version of this legislation that imposed a tax instead of a requirement-with-penalty.”

Roberts will have his Beltway dance card full from now until the end of time. 

How did Reason's perfectly perplexed penful of perspicacious prognosticators do with its roundup of predictions? Not so hot

I'd like to note also that Robert Reich scored a bullseye

Located on the streets of L.A. this morning, Melrose Larry Green reacted by saying, "I hope all you young people enjoy paying higher taxes. The good news is President Romney will repeal Obamacare next year."

Gary Johnson on ObamaCare Ruling: “It has been clear for a while that we need a new President and a new Congress. Now it appears we need a new Supreme Court."

Libertarian Party Presidential Candidate Gary Johnson has released a statement about today's Supreme Court ruling on the Affordable Care Act: 

“It has been clear for a while that we need a new President and a new Congress. Now it appears we need a new Supreme Court.

Whether the Court chooses to call the individual mandate a tax or anything else, allowing it to stand is a truly disturbing decision. The idea that government can require an individual to buy something simply because that individual exists and breathes in America is an incredible blow to the bedrock principles of freedom and liberty.  It must be repealed, and Congress needs to get about doing so today.

There is one thing we know about health care. Government cannot create a system that will reduce costs while increasing access. Only competition and the price transparency that competition will bring can accomplish the imperatives of affordability and availability.  Whether it is the President’s plan, or the Republican prescription drug benefit, the idea that anyone in Washington can somehow manage one of the most essential and substantial parts of both our quality of life and the economy is, and always has been, fundamentally wrong.

We can never know how many Americans are out of work today because of the uncertainty the monstrous health care law has caused. The Court has done nothing to remove that burden.

Nothing about today’s decision changes the basic reality that it is impossible to eliminate deficit spending and remove the smothering consequences of federal debt without dramatically reducing the costs of Medicare and Medicaid.  And neither the Democrats nor the Republicans have given the slightest hint of willingness to do so.

Watch Dinosaur Media Claim (Incorrectly) That the Individual Mandate Was Struck Down

Everybody makes mistakes, but CNN and FOX News made a pretty big one today when both networks reported live that the individual mandate had been "struck down" and "gutted." New York mag has put together a nice little compilation of the mistake here: 

Reason, meanwhile, got it right. Alternative media FTW. 

The Supreme Court’s Bizarro World Health Care Ruling

Although the overall ruling is a victory for supporters of ObamaCare, the particulars of the Supreme Court’s decision today are almost exactly the opposite of what most observers expected. It’s like a ruling from Bizarro World.

The Court upheld the mandate—but as a tax rather than as a valid exercise of the Commerce Clause.  Most of the lower-court judges, including Democratic appointees, who previously ruled on the case had rejected this argument, and the administration seemed to offer it half-heartedly. Indeed, not only is President Obama on record as insisting that the law is not a tax, but Democrats in Congress changed the text of the bill during the legislative process to ensure that the law’s language did not refer the mandate as a tax. Indeed, the Court managed the neat trick of accepting the argument that the federal government can not regulate inactivity or create commerce in order to regulate it under the Constitution’s Commerce Clause, but still upholding the validity of the law’s mandate.

The Court ruled that the law’s Medicaid expansion as constructed was coercive. Technically, Medicaid is a voluntary program, but states argued that the law’s Medicaid expansion was coercive because it required states to either expand Medicaid as called for by the law or risk all previous and existing federal funding for the jointly funded health program, which represents a huge portion of all state budgets. Most observers, even those opposed to the law, believed this to be the weakest argument and the one with the least chance of convincing the Court. But the Court’s ruling agrees with the states, declaring that “the threatened loss of over 10 percent of a State’s overall budget is economic dragooning that leaves the States with no real option but to acquiesce in the Medicaid expansion.” The Medicaid expansion isn’t struck down, but states now have the right to opt out without risking existing federal Medicaid matching funds.

Chief Justice John Roberts sided with Supreme Court’s liberal wing while Justice Anthony Kennedy sided fully with the high court’s conservatives. Conventional wisdom prior to the ruling was that Chief Justice Roberts would only vote to uphold the law if there were already five votes to uphold. But aside from Roberts, there were only four votes to uphold the law, and Justice Kennedy, widely presumed to be the swing voter who would decide the case, sided with the court’s conservative win in arguing both that the mandate was unconstitutional and that the law should be struck down in its entirety. 

Where's That Partisan Supreme Court?

One beneficial result of Chief Justice John Roberts's demonstration that supposedly conservative Supreme Court justices can throw legally bizarre life preservers to welfare state programs too is that progressives have had to unexpectedly hit the brakes on plans to paint the Supreme Court as an uber-hyper-partisan body dominated by conniving Republican meanies who are willing to twist the Constitution any which way to get their desired results. After all, while Roberts did pull some tortured reasoning out of his derriere, it helped a policy favored by the progressives themselves.

Back in March, David Leonhardt wrte in the New York Times:

All five of those justices were appointed by Republican presidents, while the four justices expected to vote to uphold the health care law were all appointed by Democrats. This is the first time in at least 50 years that the decisions issued by the justices have frequently split along directly partisan lines, based on the party of the president who appointed each member.

On June 18, Barry Friedman at the Nation posited:

The New York Times reports a recent poll showing the Supreme Court’s approval rating at 44 percent. This represents one of the lowest numbers the justices have polled in recent years and is part of a generally downward slide since 2009. Over at least the previous twenty-five years the Court has consistently been one of the more popular institutions in the country. What’s been going on to change this?

A plausible answer is: partisanship.

And just days ago, Southern California Public Radio asked:

Are we in the most partisan Supreme Court in history? Or has the court always been viewed as legislating from the bench? Is it even possible to have a non-partisan Supreme Court?

The argument was a bit of a stretch. Friedman himself, building himself into a frenzy of condemnation of the high court, still noted:

in the district courts, Democrat-appointed judges voted to uphold the individual mandate and judges appointed by Republicans voted to strike it down. It was only when, in the appellate courts, two conservative Republican-appointed judges voted to uphold and one Democrat-appointed judge did the opposite, that the connection between judges and partisan politics died down a bit. But once the health care controversy reached the high court, news analyses yet-again aligned the justices not just by their judicial philosophy, but in terms of their partisan affiliations. The Court got caught up in the politics swirling around “Obamacare,” which may explain the justices’ continued downward slide in public approval.

And then, s-c-r-e-e-ch! Roberts! Which is to say, the whole flimsy partisan judges argument falls apart just a little bit when judges don't actually vote according to party affiliation.

What a waste of all of those pre-written columns.

Well ... Maybe they can be recycled next term.

Judge Andrew Napolitano on SB1070 and the Right of Free Association

Shortly after the opinion came down on Arizona's immigration law, the Obama administration announced that it will cease providing Arizona police with the immigration status of persons in that state, and it will not detain anyone arrested by Arizona police for immigration violations unless those violations rise to the level of a felony, which undocumented presence in the U.S. is not. Thus, writes Judge Andrew Napolitano, this constitutional rebuke to Arizona has become a personal license for the president. He now has demonstrated that he will not faithfully enforce federal law as the Constitution requires. He will only enforce the laws he agrees with.

View this article

ObamaCare Decision: Dow Falls Sharply After SCOTUS Ruling, Romney Speaks, Pelosi: “Victory for the American people”

The Dow and S&P 500 fell sharply after the Supreme Court announced its decision on Obamacare.

The court’s ruling, that the individual mandate in ObamaCare could survive as a tax, means ObamaCare is probably the largest tax increase in U.S. history.

Mitt Romney said he disagreed with the court’s decision and agreed with the dissent. “I will act to repeal ObamaCare,” he said, promising to do so on his first day in office, also lamenting the healthcare law’s cuts in Medicaid. Obama is set to speak at 12:15pm.

UCLA law professor Adam Winkler calls today’s decision the birth of the Roberts court

Quotable from the opinion:

Chief Justice John Roberts writing for the majority: "It is not our job to protect the people from the consequences of their political choices"


Nancy Pelosi: "Victory for the American people! Millions of American families and children will have certainty of health care benefits + affordable care,"

Nick Gillespie: “Please Democrats, while celebrating, please don't spike the nuclear football by mistake.”

Jeffrey Toobin: “Big winner at ‪#scotus today is don verrilli, solicitor general. Among losers is me, who was so critical of of his oral argument.”

Complete Reason coverage of Obamacare.

ACA Ruling "hurts President Obama’s reelection prospects," and Other GOP Talking Points

Republicans have wasted no time spinning today's Supreme Court ruling, which upheld the individual mandate, as bad for Obama. Here's a sample of releases, memos, and talking points that Republicans are pushing. Almost all of them focus on the Affordable Care Act as a) bad policy and b) a huge tax increase. 

Here's the Republican National Committee: 

ObamaCare represents a toxic political asset for Obama: It is a two-fold broken promise. First, he failed to keep his promise to reduce healthcare costs. (Health insurance premiums continue to increase.) Second, with his pursuit of ObamaCare, he failed to keep his promise to focus completely on the economy and create jobs.

ObamaCare was bad policy for America from the very beginning. This November, it will be bad politics for Democrats. Voters want real reform, and only Republicans are prepared to pursue it.

And the Romney camp also just released a list of talking points "you can expect from our campaign (surrogates, top advisors, etc) in response to the SCOTUS decision on Obamacare." Here are some of those: 

Let’s not confuse what the Court said today. The Court said that Obamacare is constitutional – but not that it’s good policy or good for the country.  

  • Yesterday Obamacare wasn’t popular, today Obamacare isn’t popular.
  • Yesterday Obamacare was bad policy, today Obamacare is bad policy.
  • Obamacare is a job killer – it raises taxes, it cuts Medicare, and it puts government between patients and their doctors.
  • We have a path to defeating Obamacare and it is by electing a new president.
  • We urge everyone in the country who is opposed to Obamacare to join Mitt Romney in his campaign to replace President Obama. To defeat Obamacare, we must defeat President Obama.

Food for thought: In a parallel timeline in which the Supreme Court struck down the mandate or the entire law, what would the Tea Party be doing right now? I'm betting it wouldn't be nearly as ramped up as it is today, and will be between now and November. 

Is ObamaCare's 'Shared Responsibility Payment' a Tax or a Penalty? Yes, SCOTUS Says.

Rejecting the majority's conclusion that the "shared responsibility payment" due from people who fail to obtain government-prescribed medical coverage qualifies as a tax, the dissenters in today's ObamaCare decision argue that it functions like a penalty, which is also what Congress chose to call it:

Our cases establish a clear line between a tax and a penalty: "'[A] tax is an enforced contribution to provide for the support of government; a penalty...is an exaction imposed by statute as punishment for an unlawful act.'"....We have never held—never—that a penalty imposed for violation of the law was so trivial as to be in effect a tax.  We have never held that  any exaction imposed for violation of the law is an exercise of Congress’ taxing power—even when the statute calls it a tax, much less when (as here) the statute repeatedly calls it a penalty. When an act "adopt[s] the criteria of wrongdoing” and then imposes a monetary penalty as the "principal consequence on those who transgress its standard,” it creates a regulatory penalty, not a tax....

So the question is, quite simply, whether the exaction here is imposed for violation  of the law.  It unquestionably is.

Notably, Chief Justice John Roberts' majority opinion concludes this exaction is not a tax under the Anti-Injunction Act, which says "no suit for the purpose of restraining the assessment or collection of any tax shall be maintained in any court by any person." If that law applied to the penalty for disobeying the health insurance mandate, this case would be premature; challengers would have to wait until the penalty/tax was imposed and paid. Hence Roberts and the other justices in the majority, like the Obama administration, take a seemingly contradictory position on the tax-vs.-penalty issue, as the dissenters point out:

The Government and those who support its position on this point make the remarkable argument that §5000A is not a tax for purposes of the Anti-Injunction Act...but is a tax for constitutional purposes....Congress could  have defined "tax" for purposes of that statute in such fashion as to exclude some exactions that in fact are "taxes." It might have prescribed, for example, that a particular exercise of the taxing power “shall not be regarded as a tax for purposes of the Anti-Injunction Act." But there is no such prescription here. What the Government would have us believe in these cases is that the very same textual indications that show this is not a tax under the Anti-Injunction Act show that it is a tax under the Constitution. That carries verbal wizardry too far, deep into the forbidden land of the sophists.

Previous coverage of the tax-vs.-penalty question, including the Obama administration's ever-evolving view, here.

South Florida Tea Party Head: Regardless of SCOTUS Ruling, "I will not comply with ObamaCare"

Another thing to keep your eyes peeled for in the days ahead: Critics claiming they won't comply with Obamacare, regardless of the SCOTUS ruling: 

"I will not comply with Obamacare," Everett Wilkinson, head of the South Florida Tea Party and the Tea Party Command wrote in an email published by the Orlando Sentinel. "The line in the sand has been drawn. As a Marine I swore an oath to the US Constitution. Obamacare is just one of many bad laws, that costs too much, hurts American job creators and job seekers, and explodes our already unsustainable debt."

(Now's probably a good time to mention that the IRS does not allow conscientious objector status.)

Justice Ginsburg Attacks Chief Justice Roberts for his “Crabbed Reading of the Commerce Clause”

Although the Supreme Court’s four liberal justices joined Chief Justice John Roberts in upholding ObamaCare’s individual mandate under Congress’ Tax Clause powers today, the liberals were not so happy with Roberts’ decision to reject the Obama administration’s expansive Commerce Clause arguments. Here’s Justice Ruth Bader Ginsburg, joined by Justices Stephen Breyer, Sonia Sotomayor, and Elena Kagan, attacking Roberts for daring to suggest that the Commerce Clause isn’t a blank check:

The provision of health care is today a concern of natonal dimension, just as the provision of old-age and survivors’ benefits was in the 1930’s.  In the Social Security Act, Congress installed a federal system to provide monthly benefits to retired wage earners and, eventually, to their survivors. Beyond question, Congress could have adopted a similar scheme for health care.  Congress chose, instead, to preserve a central role for private insurers and state governments. According to THE CHIEF JUSTICE, the Commerce Clause does not permit that preservation.  This rigid reading of the Clause makes scant sense and is stunningly retrogressive.

Since 1937, our precedent has recognized Congress’ large authority to set the Nation’s course in the economic and social welfare realm.... THE CHIEF JUSTICE’s crabbed reading of the Commerce Clause harks back to the era in which the Court routinely thwarted Congress’ efforts to regulate the national economy in the interest of those who labor to sustain it.”

So at least Roberts got the Commerce Clause right.

Issa to Obama: What Happened to Obamacare Not Being a Tax?

In 2009, President Obama told ABC News that the individual mandate is not a tax. Today, SCOTUS ruled otherwise. Now Rep. Darrell Issa's (R-Calif.) office is out with a statement hitting the Obama administration for passing new taxes. Look for more of this in the days/weeks/months ahead: 

“The Supreme Court has ruled to uphold the President’s Obamacare.  Despite being viewed as Constitutional by a narrow majority, this law will do great harm to our country by imposing new taxes, burying job creators in new red tape and saddling future generations with debt they can’t afford. 

“In selling Obamacare, Congressional Democrats and President Obama assured the American people that it was not a tax.  Today, the Supreme Court ruled it was, in fact, a tax.  This tax was imposed on the American people amidst an extended recession and is one of the many reasons our economy remains stagnant under President Obama’s leadership.

“To date, the Republican-led House of Representatives has voted 30 times to repeal, dismantle and defund Obamacare—and we will continue our efforts to repeal this law and replace it with health care reform that enacts needed reforms without imposing costs that will be paid by subsequent generations.

“In the days ahead, I will work with my colleagues to achieve real solutions to America’s health care challenges that do not infringe on doctor patient relationships, impose unpopular mandates, and do not add to the nation’s already significant debt.”

Supreme Court Rejects Obama's Commerce Clause Arguments, Upholds ObamaCare Anyway Under Tax and Spend Clause

Chief Justice John Roberts’ majority decision today upholding the Patient Protection and Affordable Care Act makes a number of very important points. First, Roberts completely rejected the Obama administration’s unprecedented argument that the individual mandate was constitutional under Congress’ power “to regulate commerce...among the several states.” As Roberts wrote:

The Constitution grants Congress the power to “regulate Commerce.” Art. I, §8, cl. 3 (emphasis added).  The power to regulate commerce presupposes the existence of commercial activity to be regulated.  If the power to “regulate”  something included the power to create it, many of the provisions in the Constitution would be superfluous....

Our precedent also reflects this understanding.  As expansive as our cases construing the scope of the commerce power have been, they all have one thing in common: They uniformly describe the power as reaching “activity.” It is nearly impossible to avoid the word when
quoting them....

The individual mandate, however, does not regulate existing commercial activity. It instead compels individuals to become active in commerce by purchasing a product, on the ground that their failure to do so affects interstate commerce.  Construing the Commerce Clause to permit Congress to regulate individuals precisely because they are doing nothing would open a new and potentially vast domain to congressional authority.

That’s important. When you also count the four dissenters (Justices Kennedy, Scalia, Thomas, and Alito), a majority of the Supreme Court refused to buy the government’s sweeping interpretation of the Commerce Clause.

But that also turned out not to matter for the fate of the ObamaCare, because Roberts and the Court’s four liberals voted to uphold the individual mandate under Congress' power to “lay and collect Taxes.” Here’s part of how Roberts makes the case:

Under the mandate, if an individual does not maintain health insurance, the only consequence is that he must make an additional payment to the IRS when he pays his taxes. That, according to the Government, means the mandate can be regarded as establishing a condition—not owning health insurance—that triggers a tax—the required payment to the IRS.  Under that theory, the mandate is not a legal command to buy insurance. Rather, it makes going without insurance just another thing the Government taxes, like buying gasoline or earning income.  And if the mandate is in effect just a tax hike on certain taxpayers who do not have health insurance, it may be within Congress’s constitutional power to tax.

The question is not whether that is the most natural interpretation of the mandate, but only whether it is a “fairly possible” one. As we have explained, “every reasonable construction must be resorted to, in order to save a statute from unconstitutionality.” The Government asks us to interpret the mandate as imposing a tax, if it would otherwise violate the Constitution. Granting the Act the full measure of deference owed to federal statutes, it can be so read. (Citations omitted)

Sen. Rand Paul Reacts to SCOTUS Ruling on Obamacare: "This now means we fight every hour, every day until November to elect a new President and a new Senate to repeal Obamacare"

From Sen. Rand Paul's (R-Ky.) office: 

“Just because a couple people on the Supreme Court declare something to be ‘constitutional’ does not make it so. The whole thing remains unconstitutional. While the court may have erroneously come to the conclusion that the law is allowable, it certainly does nothing to make this mandate or government takeover of our health care right,” Sen. Paul said.

“Obamacare is wrong for Americans. It will destroy our health care system. This now means we fight every hour, every day until November to elect a new President and a new Senate to repeal Obamacare,” he continued.  

The Supreme Court ObamaCare Decision Is Full of...Broccoli

Broccoli gets an awful lot of shout-outs in today's ObamaCare court decision [PDF]. Below, a compendium of broccolonia:

Chief Justice John Roberts' Opinion:

  • According to the Government, upholding the individual mandate would not justify mandatory purchases of items such as cars or broccoli because, as the Government puts it, “[h]ealth insurance is not purchased for its own sake like a car or broccoli; it is a means of financing health-care consumption and covering universal risks.”  Reply Brief for United States 19. But cars and broccoli are no more purchased for their “own sake” than health insurance.  They arepurchased to cover the need for transportation and food.
  • The dissent dismisses the conclusion that the power to compel entry into the health-insurance market would include the power to compel entry into the new-car or broccoli markets.

Justice Ruth Bader Ginsberg, concurring:

  • The inevitable yet unpredictable need for medi­cal care and the guarantee that emergency care will be provided when required are conditions nonexistent in other markets. That is so of the market for cars, and of the market for broccoli as well.  Although an individual might buy a car or a crown of broccoli one day, there is nocertainty she will ever do so.  And if she eventually wants a car or has a craving for broccoli, she will be obliged topay at the counter before receiving the vehicle or nour­ishment. She will get no free ride or food, at the expense of another consumer forced to pay an inflated price.
  • As an example of the type of regulation he fears, THE CHIEF JUSTICE cites a Government mandate to purchase green vegetables.  Ante, at 22–23. One could call this concern “the broccoli horrible.”
  • THE CHIEF  JUSTICE accepts just such specious logic when he cites the broccoli horrible as a reason to deny Congress the power to pass the individual mandate.

Antonin Scalia, Anthony Kennedy, Clarence Thomas, and Samuel Alito, dissenting:

  • The dissent dismisses the conclusion that the power to compel entry into the health-insurance market would include the power to compel entry into the new-car or broccoli markets. The latter purchasers, it says, “will be obliged to pay at the counter before receiving the vehicle or nourishment,” whereas those refusing to purchase health-insurance will ultimately get treated anyway, at others’ expense. “[T]he unique attributes of the health-care market . . . give rise to a significant freeriding problem that does not occur in other markets.” And “a vegetable-purchase mandate” (or a car-purchase mandate) is not “likely to have a substantial effect on the health-care costs” borne by other Americans. 
  • Those differences make a very good argument by the dissent’s own lights, since they show that the failure to purchase health insurance, unlike the failure to purchase cars or broccoli, creates a national, social-welfare problem that is (in the dissent’s view) included among the unenumerated “problems” that the Constitution authorizes the Federal Government to solve.  


The Reason-Rupe poll found that most Americans aren't keen on a broccoli mandate.

Here's the Supreme Court's Ruling on Obamacare

Aca Decision

Most of the Justices Reject the Commerce Clause Defense of the Mandate

In the main dissent from today's Supreme Court ruling upholding the Patient Protection and Affordable Care Act, four justices (Antonin Scalia, Anthony Kennedy, Clarence Thomas, and Samuel Alito) say the individual health insurance mandate goes beyond anything that has passed muster under the Commerce Clause before:

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.

Thomas goes further in a separate dissent, where he reiterates his longstanding position that the "substantial effects" test underlying Wickard "is inconsistent with the original understanding of Congress' powers and with this Court's early Commerce Clause cases." Quoting himself, he says the test "has encouraged the Federal Government to persist in its view that the Commerce Clause has virtually no limits."

Chief Justice John Roberts, who wrote the majority opinion, agrees with the dissenters that the mandate does not qualify as a regulation of interstate commerce (which is why his argument rests on the tax power instead):

The individual mandate...does not regulate existing commercial activity. It instead compels individuals to become active in commerce by purchasing a product, on the ground that their failure to do so affects interstate commerce.  Construing the Commerce Clause to permit Congress to regulate individuals precisely  because  they are doing nothing would open a new and potentially vast domain to congressional authority. Every day individuals donot do an infinite number of things.  In some cases they decide not to do something; in others they simply fail to do it. Allowing Congress to justify federal regulation by pointing to the effect of inaction on commerce would bring countless decisions an individual could potentially make within the scope of federal regulation, and—under the Government’s theory—empower Congress to make those decisions for him. 

The other four members of the majority—Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor, and Elena Kagan—did not join this part of Roberts' opinion, since they have no such reservations about an all-encompassing Commerce Clause. But for what it's worth (not much, given how broadly the authority to regulate interstate commerce has been read so far and given how much can be accomplished under the tax power as it is understood by the Court), a majority of the justices continue to argue that the Commerce Clause is not a blank check.

Rep. Justin Amash Reacts to SCOTUS Upholding Obamacare: "The Supreme Court missed an historic opportunity to rein in the federal government"

From the office of Rep. Justin Amash (R-Mich.): 

“The Supreme Court missed an historic opportunity to rein in the federal government. For decades, Congress has stretched the Constitution to authorize whatever new mandate it invents. Instead of acting as an impartial referee, the Court has been complicit in allowing Congress and the President to expand their power at the expense of state governments and the people.

“The Court’s decision green lights the continued expansion of the size and scope of the federal government. It also underscores the need to have congressmen who resist the impulse to aggrandize power in Washington. Now more than ever, Congress must commit itself to following the Constitution and limiting the federal government. We can begin to fulfill that commitment by repealing the President’s health care law in its entirety.”

In 2009, President Obama Insisted that the Health Insurance Mandate is Not a Tax

The Supreme Court upheld the individual mandate to purchase health insurance today as a tax rather than as a valid use of congressional power under the Constitution's Commerce Clause. But in September 2009, President Obama insisted that the mandate was absolutely not a tax. Watch below:

Update: And here's when Obama promised never to raise taxes on anyone earning less than $250,000 a year. The mandate, of course, does not have an income test.

ObamaCare Decision: Chief Justice Roberts “Saved” Obamacare, Healthcare Mandate Survives as Tax, Medicaid Funding Can’t Be Withheld for Non-Compliance

According to the SCOTUS Blog’s live blogging: “Chief Justice Roberts' vote saved the ACA.”

The court ruled the individual mandate cannot be implemented under the Commerce Clause, but it can survive as a tax.

From the opinion: “Our precedent demonstrates that Congress had the power to impose the exaction in Section 5000A under the taxing power, and that Section 5000A need not be read to do more than impose a tax. This is sufficient to sustain it.”

Ilya Somin at Volokh.com says that was “the least likely basis for a win by the federal government” 

The Supreme Court did, however, reject ObamaCare's Medicaid plans.

Barack Obama previously argued the individual mandate was not a tax.

Ezra Klein thinks there’s still a lot of challenges ahead for ObamaCare.

Reason's Nick Gillespie will be talking about the decision on the Peter Schiff radio show shortly.

Read the whole ruling. [pdf]

Gillespie on Schiff Radio in a Few Moments

I'll be on Peter Schiff's radio show in about five minutes.

Listen along here.

Steve Chapman on Overblown Fears About Corporate Spending

When the Supreme Court ventures into the subject of corporate political spending, it has a way of fogging the minds of its critics. The latest decision came on Monday, when a majority of the justices struck down a Montana Supreme Court decision that more or less insisted their writ does not run in the Land of the Shining Mountains. Critics went nuts. But they are oblivious, writes Steve Chapman, to the most striking fact about the aftermath of the original decision freeing corporations to spend money on elections: Corporations by and large have chosen not to.

View this article

BREAKING: Supreme Court Upholds ObamaCare's Individual Mandate as a Tax

The Supreme Court has ruled that ObamaCare's individual mandate to purchase health insurance will survive as a tax, with Chief Justice Roberts joining the court liberals to write a majority opinion. The court also placed some narrow limits on federal power to limit state Medicaid funds.

Update: SCOTUSBlog reports that Chief Justice John Roberts cast the deciding vote to save the law. Essentially the entire law will stand. 

Update: The ruling states that, "The court reinforces that individuals can simply refuse to pay the tax and not comply with the mandate."

Update: The Supreme Court did not invalidate the law's Medicaid expansion, but states are allowed to opt out of participating in the expansion without losing existing federal Medicaid funds. 

Details still coming in, with many reporting that the ruling is unexpectedly complex and confusing. This post will be updated. 

Check back soon for a full analysis of the ruling. 

Catch up with Reason’s coverage of ObamaCare and the Supreme Court here. And check out Reason's cover package on the landmark court challenge that led to the ruling: 

ObamaCare on Trial. The libertarian legal movement threatens Barack Obama's signature law. By Damon Root.

The ObamaCare Tax? Regulation, taxation, and the insurance mandate. By Jacob Sullum.

Wonky Justice. The dubious policy assumptions behind ObamaCare's legal defense. By Peter Suderman.

What's Next if ObamaCare Is Struck Down? The political upside of ditching the health insurance mandate. By Peter Suderman.

Fair-Weather Federalists. Why conservatives and progressives should unite against an overweening national government. By Jacob Sullum.

SCOTUS Reportedly Upholds Mandate As an Exercise of the Tax Power

SCOTUSblog reports that the Supreme Court has upheld the individual health insurance mandate as a tax, which makes my recent Reason essay along those lines suddenly relevant. SCOTUSblog says the entire Patient Protection and Affordable Care Act will stand, except that "the federal government's power to terminate states' Medicaid funds is narrowly read." Chief Justice John Roberts joins the left-leaning members of the Court in upholding the law.

More to come.

Update: Majority opinion quote via SCOTUSblog:

Our precedent demonstrates that Congress had the power to impose the exaction in Section 5000A [the  "shared responsibility payment" due from people who fail to obtain government-prescribed medical coverage] under the taxing power, and that Section 5000A need not be read to do more than impose a tax. This is sufficient to sustain it.

SCOTUSblog's Amy Howe says "the court reinforces that individuals can simply refuse to pay the tax and not comply with the mandate." That is especially true in light of the law's weak enforcement mechanism.

It sounds like a majority of the Court (Roberts plus the four dissenters) agreed that the mandate does not pass muster as an exercise of Commerce Clause power. Four justices would have upheld the mandate on that ground as well.

The decision is here.

Do You Have the President’s Back?? Because the Supreme Court Might Not!

The latest missive from the Obama campaign:

Edward --

We don't know what will happen this morning.

But no matter what, today is an important day to have Barack Obama's back.

If you're with him, donate now -- before this week's critical fundraising deadline… https://donate.barackobama.com/This-Morning

More soon.


Jim Messina
Campaign Manager
Obama for America

And if the Supreme Court ends up upholding the law? Well, that'll be used as even more reason to donate. Any minute now...

Reason on Obamacare

Gillespie in Newsday: Cheer Up, Losers! Settle Down, Winners! SCOTUS Isn't the Last Word on Anything (Hooray and Alas)!

I've got a piece related to Obamacare whose veracity should survive whatever decision is announced in a few hours:

Here's an unsettling truth that should temper bitter resentment, unrestrained ecstasy, and any mix of feelings at today's outcome: The Supreme Court almost never changes the course of history. It might speed up or slow down the direction in which we're headed -- and lord knows, it's made some genuinely terrible decisions over the years -- but the role the Court plays is mostly to certify social, cultural and political trends, not to start them....

[That's not to say] the Court can't make better or worse decisions, or ones that are more popular or less popular. The 2005 decision Kelo v. New London, for instance, sanctioned governments to useeminent domain under virtually any circumstance, prompting a huge backlash at the state and local level to greatly narrow when elected officials might seize property for the so-called public good.

The plain fact is that the Supreme Court is never the last word on anything. Its justices "may not read the headlines," in the sense that they follow public opinion closely, but the court itself is generally a lagging indicator of what's really happening in the country. That's an insight that should give some succor to today's losers -- and temper the enthusiasm of today's victors.

Read the whole thing here.

A.M. Links: Eric Holder Up For Contempt, FBI Investigating Wildfires, News Corp Agrees to Split

  • At least about a dozen Democrats may vote to hold Eric Holder in contempt for withholding documents related to Operation Fast & Furious. Most are facing tough re-election battles.
  • At least 300 homes have been torched and 30,000 residents displaced as wildfires continue in Colorado. The FBI is apparently investigating.
  • Gunmen in Syria stormed a pro-Assad TV station (are there any other kind?). Meanwhile, NATO is meeting to decide whether to respond to the Syrian downing of a Turkish recon jet last week (Spoiler: a strongly worded statement)
  • A 65-year-old store clerk in New Hampshire was fired after refusing to sell cigarettes to someone using an EBT card. The man’s foster mother came in to complain. The store clerk was fired after giving a week’s notice but refusing to accept welfare cards for cigarettes during that time.
  • News Corp’s board approved splitting the company into two, an entertainment business and a publishing business.
  • Clyde Drexler  says quotes attributed to him about Magic Johnson (e.g., "He couldn't play much by that time. He couldn't guard his shadow. But you have to understand what was going on then. Everybody kept waiting for Magic to die. Every time he'd run up the court everybody would feel sorry for the guy, and he'd get all that benefit of the doubt") in the Jack McCallum book Dream Team are “totally ludicrous" and not his.
  • 828 days after President Obama signed the Affordable Care Act, the Supreme Court will rule on the constitutionality of the law.

Don’t forget to sign up for Reason’s daily AM/PM updates for more content.

Reason.TV: Mandela, Gandhi and... Mailman? Postal Workers Wage Hunger Strike "For Justice"

ObamaCare Watch: Today Is the Day

At 10 a.m. ET this morning, the U.S. Supreme Court is scheduled to announce its final decisions from the 2011-2012 term, including its long-awaited ruling on the constitutionality of the Patient Protection and Affordable Care Act. Will the Court strike down ObamaCare in its entirely? Uphold it? Void only the individual mandate? We’ll soon learn the answer. In the meantime, prepare yourself for the legal and political fallout by studying this selection from Reason’s ObamaCare archives. And stay tuned to Reason.com all day for coverage and analysis of the decision.

ObamaCare on Trial. The libertarian legal movement threatens Barack Obama's signature law. By Damon Root.

The ObamaCare Tax? Regulation, taxation, and the insurance mandate. By Jacob Sullum.

Wonky Justice. The dubious policy assumptions behind ObamaCare's legal defense. By Peter Suderman.

What's Next if ObamaCare Is Struck Down? The political upside of ditching the health insurance mandate. By Peter Suderman.

Fair-Weather Federalists. Why conservatives and progressives should unite against an overweening national government. By Jacob Sullum.

The 4 Best Legal Arguments Against ObamaCare. Why the president's sweeping health care overhaul should be struck down by the Supreme Court. By Damon Root.

Don’t Buy It. The crazy constitutional logic of the individual insurance mandate. By Jacob Sullum.

The Liberal Legal Bubble. Liberals can't even imagine the opposition's arguments to the individual mandate. By Peter Suderman.

How Will the Supreme Court Rule on ObamaCare? Andrew Sullivan, Richard Epstein, and others place their final bets.

Will John Roberts Vote to Uphold ObamaCare? By Damon Root.

Gaming Out the ObamaCare Ruling. 3 Possible Outcomes. By Peter Suderman.

Click below to watch Reason.tv's "3 Reasons to End ObamaCare Before It Begins."

Click below to watch "Wheat, Weed, and ObamaCare: How the Commerce Clause Became All Powerful," the Reason.tv documentary cited on page 47 of U.S. District Judge Roger Vinson's decision striking down the individual mandate.

John Stossel on Why Discrimination in the Health Insurance Market Is a Good Thing

Discrimination is what makes insurance work. An insurance regime where everyone pays the same amount is called "community rating." That sounds fair. No more cruel discrimination against the obese or people with cancer. But community rating is as destructive as ordering flood insurance companies to charge nothing extra to insure a very vulnerable beach house, writes John Stossel, or ordering car insurance companies to charge Lindsay Lohan no more than they charge you. Such one-size-fits-all rules take away insurance companies' best tool: risk-based pricing. Risk-based pricing encourages us to take better care of ourselves.

View this article

Can Liberals Only Conceive of the Supreme Court in Partisan Terms?

When the first legal challenges to ObamaCare and its individual mandate were filed, most of those backing the challenges thought the chances of the challenges succeeding were slim. They didn’t think they were wrong. They just thought that they would have a hard time convincing the legal system, which they viewed as excessively deferential to congressional power under the Constitution’s Commerce Clause, that they were right. But despite what they believed to be long odds, they nonetheless thought they had to try, in hopes that the legal system might place some limits on the federal regulation of commerce.

The challenge worked about as well as they could have hoped. We obviously don’t yet know how the Supreme Court will rule on the health care law, but at this point most observers believe that it is entirely possible that the Supreme Court will rule against the law—perhaps even striking it down entirely.

Liberals have long insisted that ObamaCare's constitutionality is so obvious it barely needed to be defended. They are now arguing that if the Supreme Court does strike down the law, ObamaCare’s defenders should react with anger and outrage, not just running against Republicans who opposed the law but against the high court itself. And more than that, they are suggesting that any ruling against the law or its mandate is necessarily illegitimate. After all, legions of liberal legal scholars agree that only a politicized, partisan court could reject such an obviously constitutional provision: Requiring the purchase of health insurance coverage simply as a matter of being alive and a resident of the United States falls well within the bounds of precedent, the argument goes.

Yet virtually all of these same liberals support the last century’s worth of breaks from precedent when those breaks come down in favor of laws they like. Most subscribe to a basic theory of the Constitution that argues that the document’s meaning evolves and changes over time, depending on particulars and circumstances as well as on the specific interpreters and arbiters themselves.

Perhaps now is the time for some evolution. If the Supreme Court sides against ObamaCare, it will be siding with a public that has consistently opposed the law as a whole and overwhelmingly opposes the mandate. If the Court rules against the mandate, it will not be upending swaths of existing law but instead ruling on a novel and unprecedented federal requirement that affects nearly all people simple because they are alive and legally residing in the United States. And it would be setting an outer limit on the power of Congress to regulation commerce. It will be settling a controversial legal and constitutional question that has yet to be decided, which is, after all, what the Supreme Court is supposed to do.

Liberals seem to believe that the only sentiment that could possibly support a ruling against the law is blatant partisanship. As The Examiner’s Timothy Carney writes, “The liberal argument today, though, is not merely that Congress can regulate inactivity, but that any argument to the contrary is dishonest or idiotic. This allows the Left to portray an adverse ruling as nakedly political.”  

It's a telling view. Liberals have for so long relied on novel interpretations of the Constitution designed almost exclusively to advance their own legislative ends that they simultaneously cannot believe that there is any alternative and yet are deeply offended by the idea that their political opponents might do the same. Their position is essentially that the Court’s rulings are only legitimate when they advance favored liberal policies: Court packing? A mark of a historically great president. Reading new rights into the Constitution based on the high court’s mysterious intuitive sense of what it all really means? A definitive ruling that must be protected at all costs.

But if the court should decide that a novel and unprecedented federal provision designed to compel commerce in order to regulate it is beyond the scope of the federal government's authority based on a clause that grants Congress the power to regulate interstate commerce, well then, the whole system must be illegitimate. The job of the Supreme Court is to enable Congress, not limit it, duh.

And yet that is obviously not the only alternative. When ObamaCare's opponents set out to challenge the law's constitutionality, they hoped to defeat the law by bringing others to their side. It has clearly worked with the public. And if the Court rules against ObamaCare, it may not be purely the result of partisan calculation, but of weighing the arguments against the law and its mandate and being genuinely convinced that the opponents had the better case. This is what so many of the law's defenders apparently cannot believe. 

Regardless of how the high court rules, what many liberals have revealed is a lack of legal imagination: They can only conceive of the courts and the Constitution in partisan terms, as a vehicle for the advancement of a political agenda. Ultimately, it is not the Supreme Court's legitimacy that is threatened by this ruling, but the legitimacy of the liberal legal establishment. 

Brickbat: By the Book

Susan Mait's SUV had broken down in Coral Springs, Florida, and while she was waiting for a tow a couple of local police officers pulled up. The officers and Mait disagree over what happened next, but it resulted in them arresting her for DUI and felony obstruction. Prosecutors dropped the DUI charge after toxicology tests came back. When Mait's attorney deposed the two officers, he asked if they used obscenities when talking to Mait. They said no. Then he asked if they'd warned Mait that she was disobeying a lawful command when, according to them, she refused to show them her driver's license. They said they did. Well, it turns out that Mait was on the phone with her insurance company when they pulled her from the car, and the company recorded the encounter. It showed one officer did use profanity, and it didn't capture either warning her that she was disobeying a lawful order. But it did catch the two of them hashing out what they would tell internal affairs. After hearing the tape, prosecutors dropped the remaining charge against Mait.

Brickbat Archive

The Bath Salt Panic Wall of Shame

Did you get in on the hyperventilating about the "bath salts" that supposedly made Rudy Eugene gnaw off a homeless man's face on Miami's MacArthur Causeway a month ago? If not, you're too late. Toxicology results released yesterday show that Eugene had not consumed any of the stimulants commonly used in those speed substitutes—or any other psychoactive substance except for marijuana, which (as The Miami Herald notes) is "not known for sparking violence" (not anymore, that is). The Herald elaborates:

The medical examiner—after seeking help from an outside forensic toxicology lab—could find no evidence of the common components of "bath salts" in Eugene's system. Nor did the lab find evidence of synthetic marijuana or LSD.

The medical examiner also found that Eugene had not ingested cocaine, heroin, PCP, oxycodone, amphetamines or any other known street drug other than marijuana....

"Within the limits of current technology by both laboratories, marijuana is the only drug identified in the body of Mr. Rudy Eugene," the medical examiner's office said in a press release.

Since traces of marijuana can be detected in urine, blood, and tissue long after the drug's effects wear off, it is not even clear that Eugene was under the influence of pot at the time of the assault. So where does that leave everyone who recklessly speculated that a demon drug was responsible for Eugene's ghoulish violence? Contrition may be too much to expect, but embarrassment could serve as a deterrent. Before we move on to the next media-driven panic about  a scary drug (or some other bogeyman), let's pause to focus some well-earned scorn on the most egregious offenders in this sorry episode of rumor repetition and herd reporting:

WFOR: In reports by Tiffani Helberg, the CBS affiliate in Miami played up a nonexistent drug connection from the beginning, and many other news outlets around the world followed its example (as opposed to the Herald's more restrained approach), mindlessly repeating claims about superhuman strength and vicious violence supposedly caused by bath salts. By early June, the station was hedging its bets, suggesting in a report by Jim DeFede that it might have been MDMA—a.k.a. "the love drug"—that made Eugene eat Ronald Poppo's face. 

Armando Aguilar: The president of Miami's Fraternal Order of Police was widely cited as claiming that Eugene must have been under the influence of drugs, probably some kind of "bath salts." Most of these references were based on WFOR's reporting, but Aguilar also told ABC News there were "striking" similarities between Eugene's assault and incidents involving bath salts: "The cases are similar minus a man eating another. People taking off their clothes. People suddenly have super human strength. They become violent and they are burning up for the inside. Their organs are reaching a level that most would die. By the time police approach them they are a walking dead person."

Paul Adams: Although Adams, a local emergency room physician, does not seem to have explicitly blamed Eugene's crime on bath salts, WFOR used him to confirm and amplify Aguilar's unfounded speculation, treating the two as interchangeable experts on the pernicious effects of these drugs—to the point that it attributed exactly the same quote to the two men in two stories two days apart. Adams, like Aguilar, also showed up in other news outlets' reports, confusingly linking bath salts to a psychedelic not known for causing cannibalism. "You can call it the new LSD," he told ABC News. "They [patients] seem to be unaware of their surroundings. They are not rational, very aggressive and are stronger than they usually are. In the emergency room it usually takes four to five people to control them." In a Daily Beast story that appeared the same day, Adams upped that number to seven.

CBS News: The network followed its affiliate's lead with scary stories like the May 30 piece headlined "Bath Salts, Drug Alleged 'Face-Chewer' Rudy Eugene May Have Been On, Plague Police and Doctors." That may, itself based on nothing more than Aguilar's speculation, was easily lost in the hysteria that followed.

U.S. News & World Report: The formerly staid weekly topped a May 30 panic-pimping piece by Jason Koebler with this headline: "Miami's 'Naked Zombie' Proves Need to Ban Bath Salts, Experts Say: Chemical Mixture Has Turned Some Abusers Into Raving Maniacs With Violent Consequences." But don't blame this pharmacological fearmongering on the yellow journalists at U.S. News. They were only quoting the "experts."

ABC News: A few days after Eugene's attack, ABC put bath salts in its headline: "Face-Eating Attack Possibly Prompted by 'Bath Salts,' Authorities Suspect." It was unclear who these "authorities" were, aside from Aguilar. Two days before toxicological tests conclusively disproved the idea that drugs make Eugene do it, ABC's Russell Goldman described bath salts as "a deadly array of toxic drugs" that are  "believed to have played a role in a spate of grisly incidents, including a May assault in Florida in which an attacker allegedly high on the drug chewed off a homeless man's face."

Spin: The magazine's shameless alarmism was especially blameworthy because its story, breathlessly headlined "DEEP IN THE HEART OF AMERICA'S NEW DRUG NIGHTMARE," openly acknowledged that previous drug scares were bullshit while suggesting that bath salts are every bit as bad as people claim. The quality of the journalism produced by freelancer Natasha Vargas-Cooper is encapsulated in this self-exculpatory sentence, which suggests that facts matter less than feelings: "Perhaps the most infamous incident tied to bath salts is Rudy Eugene's horrific naked face-eating attack in Miami in May, although conclusive toxicology reports have yet to be released; still, the fact that this feels like the closest thing to a credible explanation for chewing a homeless man's head for 18 minutes speaks volumes about the drug's reputation."

Charlie Dent:  The Republican congressman from Pennsylvania leaped on this story almost as fast as Eugene leaped on poor Poppo, using it to boost support for his synthetic drug ban. "When they learn about this face-chewing situation in Florida," he told Roll Call in early June, "hopefully that will change a few minds." He added: "These drugs have odd psychotic effects on people. Out of this terrible tragedy in Florida, we hope this will bring about greater awareness and accelerate the need to enact meaningful legislation that will protect people from this poison." Last week a congressional conference committee approved a synthetic drug ban as part of the Food and Drug Administration Safety and Innovation Act, although its list of prohibited bath salt ingredients is shorter than Dent wanted.   

Many others were caught up in the bath salt panic triggered by a crime that had nothing to do with bath salts; nominations are welcome. But I would be remiss if I did not note some commendable exceptions, including Maia Szalavitz (Time), Jack Shafer (Reuters), and Kristen Gwynne (Alternet).  

Prison Rape Prevention: How Much Should It Cost?

The Department of Justice has recently issued some long-awaited rules all incarceration facilities will be expected to use to “prevent, detect and respond to prison rape.” The guidelines, though, come with a $6.9 billion price tag for state and municipal jails and prisons with no indication of a funding source, prompting the conservative American Action Forum to wonder if such a system is appropriate:

Despite an admirable goal, this “landmark rule” imposes a costly, complicated regulatory framework on states currently battling recurring budget deficits, offers little assurance of success, and fails to explain this new burden to the states as required by the Unfunded Mandate Reform Act.  

The administration prescribes 43 different action items to combat prison abuse. Such tasks range from “Hiring and Promotion Decisions,” to the specific parameters of a “Sexual Abuse Incident Review.”  Under this new rule, federal requirements include minimum staffing levels for juvenile facilities, no time limit for “when an inmate may submit a grievance regarding [sexual abuse],” and “methods to ensure effective communication with inmates who are deaf or hard of hearing.” It requires that inmates be screened “for risk of being sexually abused or sexually abusive,” and that post incident reviews “consider whether the incident was motivated” by hate. 

The administration cannot quantify how this regulation will reduce abuse.  It merely establishes a series of “best practices” and amorphous requirements on states and local governments.  There are no metrics for success.  The DOJ itself admitted, “a requirement for specific outcome measures would be impractical to implement.”

The roots of the new rules lay in the Prison Rape Elimination Act of 2003, which created a commission to perform studies and to give recommendations to the attorney general to set standards. The commission completed its work in 2009, so this is a multi-administration, bipartisan effort.


Obamacarians' Pregame Rationalizations: Doesn't Matter; Good for O; All Scalia's Fault, and More!

The Supreme Court has so far struck down neither the Patient Protection and Affordable Care Act nor the law's individual mandate requiring every American to buy private health insurance.

The court may not strike down the law at all, but nervous supporters of Obamacare are ready for the worst.  

Anticipating a decision against the Affordable Care Act, supporters are explaining that it's the media's fault for not explaining how great Obamacare is, but that the loss won't really matter because Obamacare has already inspired medical market players to behave better so it's really a win for President Obama because now he'll be able to make a campaign plank out of the fact that the Supreme Court is full of rightwing extremists as demonstrated by a Quinn/Martin study showing that SCOTUS is so much crazier than George Lincoln Rockwell that even the Father of Our Country would be appalled at how obviously the justices want the 99 percent to get sick and die, which proves that it's all a plan by the vast rightwing conspiracy and that the conservatives should be careful what they wish for because Democrats would be justified if they passed a court-packing bill, which they just might do if Antonin Scalia doesn't resign. 

A sampling: 

"Why Media's Health Care Reform Coverage Was Even Worse Than You Thought"

"Health care reform trajectory won't be stopped by Supreme Court ruling"

"Insurers Seek to Soften Their Image, No Matter How Court Rules on Health Act"

"No Matter How the Court Rules, Healthcare Benefits Will Remain Key"

"Healthcare Futurist: Supreme Court Can't Stop Healthcare Reform"

"Obama could target Supreme Court if health-care law falls"

"The Supreme Court’s Lurch To The Right (CHARTS)"

"George Washington’s individual mandates"

"Health Care and the Supremes: Why the Right Has Already Won"

"Supreme Court is No Longer Part of the Solution"

"Are we headed toward another court-packing crisis?"

"Justice Scalia must resign"

Plenty of good friends show up, from Eric Boehlert (who in honor of the late Andrew Breitbart I insist on thinking of as "Earache Boehlert") to the New Yorker's second-grade-math dropout John Cassidy to Ezra "Orthodox economics proves the accepted theory is correct because Top Men say so" Klein to the unsinkable E.J. Dionne, who helps me understand what Joyce meant when he described a bespectacled character with the phrase, "Witless shellfish swam in the gross lenses to and fro, seeking outlet." 

It's also heartening to see the New York Times pushing the argument that the threat of action alone has already gotten the insurance companies to reform. This is exactly the case the Grey Lady made in 1993, when it was becoming clear that the Hillary Clinton/Ira Magaziner health care reform was in trouble. At that time, the paper ran a series of articles claiming that even if the bill failed it would be a success because HMOs (that era's villains) were already cleaning up their acts. You can see how well that worked. 

It bears repeating that outside a handful of people, none of whom are quoted above, nobody knows how the Supreme Court will rule. But the Obamacarians just know the ruling is a fraud. Unless it goes their way, in which case the majesty of our magisterial system will have shown itself to be even more majestic than usual. 

Don't hesitate to add your own examples of pre-decision special pleading in the comments. 

Ronald Bailey on the Unpopularity of Atheism

Polls show most Americans are uneasy (to say the least) about unbelievers. In a June 2011 Pew Research poll, 33 percent of respondents said they would be less likely to vote for a candidate who was gay. For atheist candidates, that number jumped to 61 percent. In fact, according to one survey, religious folks believe the godless are about as trustworthy as rapists. But as Science Correspondent Ronald Bailey reports, the good news for atheists is that the trends are now moving in the right direction.

View this article

Gandhi, Mandela, and...Mailmen? Postal Workers Wage Hunger Strike "for Justice"

Almost a dozen current and retired Postal Service workers (out of a current workforce of more than 550,000) are staging a four-day hunger strike - just one day longer than the average First Class letter takes to be delivered across the country - to call attention to what they say is a plot to destroy the United States Postal Service.

From June 25 through June 28, the strikers were in Washington, D.C. to lobby Congress to change a 2006 law that forces the Post Office to "pre-fund" health-care and retirement by billions of dollars a year. Despite a 21-percent decline in mail volume over the past four years and labor costs that are far higher than competitors such as UPS and FEDEX, the strikers say it's the mandate, not a hidebound way of doing business, that's stamping out the Postal Service's future.

ReasonTV caught up with the hunger strikers on the steps of the Cannon Building in Washington.

Approximately 3 minutes.

Produced by Jim Epstein and Nick Gillespie.

Go to Reason.tv for downloadable versions and subscribe to ReasonTV's YouTube Channel to receive automatic updates when new material goes live.

Cop Fired for Warning Friend About SWAT Raid Over Prostitution Ring; FBI Cancelled Raid Anyway, Suspect Was FBI Informant Too

From UPI’s “Odd News,” an odd story indeed:

Police in Florida said an officer lost his job after text messaging with a friend who was about to be busted by a SWAT team.

Plantation Police released Internal Affairs documents Tuesday explaining Officer Robert "Bobby" Edwards, 30, sent 20 text messages and four calls to the suspect, who is accused of running a prostitution ring, over the course of 3 hours telling him to delete his information from his phone, the South Florida Sun Sentinel reported Wednesday.

The arrest was called off when police lost track of the suspect, who apparently inferred from Edwards' messages that his arrest was imminent, and the FBI suggested the arrest be called off for "safety reasons." It was later revealed the suspect was an informant for the FBI in an unrelated case and he surrendered to authorities the following day.

Edwards, a five-year veteran, was fired from the Police Department, but prosecutors said he will not face criminal charges because he was offered immunity in exchange for explaining the events from the day of the planned arrest.

So the local cop is friends with a pimp targeted by local cops that the feds are actually using as an informant. All to keep us safe no doubt, so why ask any questions? Crime fighting!

Reason on sex work

Keep Your Data Safe From Snoopy Officials at the Border

It's summer and a holiday looms, which means a lot of people are traveling. And with those travelers goes any number of laptops, tablet computers, smart phones, flash drives and other widget-y repositories of important and often-private data. If you plan on going anywhere near an international border, get ready to share your information with officials — or even to hand your widgets over on indefinite loan for the perusing pleasure of those who protect us from whatever bogeymen the government is invoking at the moment. Fortunately, the Electronic Frontier Foundation has produced a handy guide that won't eliminate invasions of electronic privacy at the border, but might help you manage them.

Acording to the ACLU, which represents joint U.S.-French citizen Pascal Abidor in a lawsuit over border searches of electronic gear, "[b]etween October 1, 2008 and June 2, 2010, over 6,500 people — nearly 3,000 of them U.S. citizens — were subjected to a search of their electronic devices as they crossed U.S. borders." EFF points out that the feds can get away with this because:

Several federal courts have considered whether the government needs any suspicion of criminal activity to search a traveler’s laptop at the U.S. border. Unfortunately, so far they have decided that the answer is no. Congress has also weighed several bills to protect travelers from suspicionless searches at the border, but none has yet passed.

For now, a border agent has the legal authority to search your electronic devices at the border even if she has no reason to think that you’ve done anything wrong.

In a printable, PDF-format guide for travelers, EFF advises two basic precautions:

  • Making regular backups, which ensures that your important information stays available to you if your computer is ever taken from you, lost, or destroyed. (If you don’t have access to your computer, you’ll still have access to your data.)
  • Encrypting the information on the computer, which ensures that your information stays confidential from other people whom you don’t authorize to access it. (If you lose control of your computer, other people won’t have access to your data.)

Cloud-based backups are discussed as a good tool for travelers, though the connections to the backup service should be encrypted. If the data is first encrypted before backing it up, it's especially secure. Very sensitive files can be backed up, completely deleted using special software before crossing the border, and then restored. That could avoid a confrontation with border officials who might demand a password as the price of keeping your property.

EFF also mentions scenarios in which a traveler mails a laptop ahead in order to avoid crossing the border with sensitive data on an electronic device, or travels with a wiped device after copying the data to storage devices and sending that along separately.

And, of course, software such as TrueCrypt can create hidden encrypted volumes on a hard drive that aren't apparent to most inspections.

Defending Privacy at the U.S. Border: A Guide for Travelers Carrying Digital Devices (PDF) doesn't contain any absolute solutions to the problem of snoopy border checkpoints, but it's worth looking at for anybody who has to cross an international border with sensitive data.

Tim Cavanaugh on the Obama Administration’s Stupidly Optimistic Predictions About Economic Recovery

Since 2007, official Washington has been desperately proclaiming that economic recovery is right around the corner. But as Tim Cavanaugh writes, for those who have been saying all along that none of the economic interventions since 2007 would revive the economy—not the rescue of Bear Stearns and other financial institutions; not the Troubled Asset Relief Program; not the American Recovery and Reinvestment Act; not Quantitative Easings I, II, and III; not the Patient Protection and Affordable Care Act; not Cash for Clunkers or Solyndra or the bailouts of Chrysler and General Motors—the cavalcade of stupid, wrongheaded, fantastical economic analysis coming out of official Washington and its media toadies in recent years would be hilarious if it was not so infuriating.

View this article

Waterworld Unlikely Since Antarctic Refuses To Melt, Housing and Durable Goods Figures Improve, Cops Shoot Dog In Front of Young Owner: P.M. Links

  • Obama and Romney remain locked in a neck and neck race, with differences in their numbers falling within the statistical margin of error. The incumbent remains slightly stronger in swing states.
  • Antarctic ice shelves aren't melting at all, according to new data, which is based on the first ever direct measurement of the ice, and not on computer models. The information was gathered, in part, by attaching sensor packages to elephant seals. Damn. And I was looking forward to waterworld.
  • Pending sales of homes were up 5.9 percent in May, exceeding most forecasts and matching a two-year high. Durable goods orders were up 1.1 percent, with a 1.6 percent rise in those goods that indicate business investment. So ... the apocalypse may not be, quite, imminent.
  • San Bernardino County, in California, plans to use eminent domain powers to seize underwater mortgages with an eye toward restructuring them. Economist Robert Shiller is pushing for a national plan along the same lines. It's a good thing governments are rolling in uncommitted cash. Oh, wait ...
  • Stockton, California, has become the largest U.S. city to go into bankruptcy. The city ran up massive debt during boom years. Yeah, it's always a good idea to spend more than you bring in even during healthy economic times.
  • Spain is pushing to have an anticipated bailout delivered directly to its banks so the money doesn't add to the government's already huge debt load.The country's economy continues to suffer, with unemployment at 24.4 percent.
  • On the seventh anniversary of the Kelo decision, Senators John Cornyn and Rand Paul introduced legislation that would prevent the use of federal power or funds to implement eminent domain for economic development.
  • The Miami-Dade Police Department is disciplining 44 detectives who drove 90 mph or faster more than 400 times, in violation of both the law and department rules. The move is part of the fallout from a newspaper investigation that used toll records to expose almost 800 cops, most of whom are habitual speeders.
  • Cops in Mount Vernon, New York, killed a pit bull they said was attacking a man. But witnesses and the boy's ten-year-old owner, who was there, say the dog was defending itself after the man assaulted it with a 2 x 4. But Elgin, Illinois, may be the dog-shootingest town around. Since 2008, cops have unloaded on 23 dogs, killing 19 — a far larger number than neighboring, bigger, communities.

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Elgin is the Dog-Shootingest Town in Illinois

Cops-shoot-dog stories feature prominently at Reason both because canine innocence tends to arouse our sympathy in ways that our fellow humans sometimes don't, and because the worst excesses of law-enforcement behavior are often on display in such incidents, many times without apology. But some police forces actually seem to specialize in pooch-poaching to an extent that either casts their neighbors in a comparatively good light or shames them, depending on whether you find puppycide horrfying or just good, clean, thin-blue-line fun. The police department in Elgin, Illinois, is one such agency, around which our canine friends are well-advised to break out their kevlar finery.

The Courier-News reports:

Since Jan. 1, 2008, Elgin police have shot a total of 23 dogs over the course of responding to 16 separate calls. All but four of the shootings resulted in killing the dogs — significantly more than in the larger Kane County cities of Aurora or Naperville.

Comparisons with Naperville and Aurora are helpful here, because otherwise we have just raw numbers without context. So it's worth taking a peek at eighboring communities to see how they're doing. According to Wikipedia, Elgin has a population of 108,188 and a population density of 4,300/square mile. Aurora has a population of 197,899 and a population density of 3,711.5 /square mile. Naperville has a population of 141,853 and a density of 4,025.38 / square mile. Naperville has almost twice the median household income of the other two cities, at $101,894.

And how do Aurora and Napierville compare for puppycide incidents?

In Naperville, for at least the last 10 years, police have not shot any dogs, Police Sgt. Greg Bell said.

And Elgin police dog-shooting numbers are higher than in the biggest city in Kane County, Aurora. According to Dan Ferrelli, Aurora director of public information, that city’s police have shot and killed eight dogs since Jan. 1, 2008.

I hesitate to mention that "In the last 15 years, according to Cmdr. Glenn Theriault, Elgin police have used their weapons in the line of duty only three times in incidents involving people," for fear that officers might feel inspired to bring such numbers up, rather than to drive dog-shooting incidents down. But this also strikes me as important, since humans have intelligence and tool-using skills that tend to render them more dangerous than animals. And yet, police have used their guns against potentially knife- or gun-wielding people far less often than against dogs.

It might be worth pointing out that animal control in Elgin is a responsibility of the police department, but a separate agency in Aurora. You know, when you have a hammer ...

Austin, Texas, recently revised its use of force policy for dealing with dogs after weathering a shit-storm of attention over a high-profile dog-shooting incident.