Weekly Hit & Run Archive 2012 June 29-31

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Nick Gillespie on 5 Great Gifts to Send Obama in Lieu of Cash Contributions

In what is arguably a modern low point in political discourse, President Obama's re-election campaign is exhorting supporters to sacrifice birthday, wedding, graduation, and other personal gifts to the greater cause of...President Obama's re-election. No kidding.

But cash is so impersonal—and Obama has got oodles and oodles of it already: some $260,926,200 of it, in fact, according to The New York Times. So instead of just sending him another dollar he'll forget to use, writes Nick Gillespie, why not send him something that you've already received as a wedding or bat mitzvah or graduation or gag gift? Or something you've always wanted to send someone but never followed through on?

Here are five great ideas of gifts to send Barack Obama in lieu of cash.

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3 Big Takeaways From Obamacare Decision

Here are the three most important things you need to know in the wake of the Supeme Court's decision on The Affordable Care Act, a.k.a. Obamacare:

1. Government is still unlimited.
2. Mitt Romney is still lame.
3. Health care costs will still soar.

For more details, go to http://reason.com/blog/2012/06/29/3-essential-takeaways-from-the-obamacare

Produced by Jim Epstein and Nick Gillespie. About 2 minutes.

Visit http://reason.tv for downloadable versions and subscribe to Reason.tv's YouTube channel to receive automatic notification when new material goes live.

Baylen Linnekin on Why Food-Safety Regulations Don’t Always Mean Safer Food

It’s a common misconception that more food-safety regulation means safer food. But in reality, writes Baylen Linnekin, history shows us that food-safety regulations have often made food (and, consequently, people) less safe. How can a food-safety regulation make people less safe? There are several ways.

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HuffPo Blames Media for Failure of All New Solyndras

At the Huffington Post, Jason Linkins focuses like a laserbeam on the really important story: That too many reporters use the term "Next Solyndra" to describe the growing number of companies that have gone out of business after taking taxpayer money through the Federal Financing Bank

Way back in September, Politico reported that LightSquared was the next Solyndra. (Their story showed up in my RSS feed with the headline, "LightSquared: The next Solyndra?") In January, they wrote a story about Ener1, an Indiana company that manufactures lithium-ion batteries, giving it the headline they'd essentially recycle for Abound Solar, "Another Solyndra? Grant recipient Ener1 in bankruptcy proceedings." In April, Politico's "Morning Energy" newsletter hyped a National Review story from Robert Bryce titled "The Next ‘Next Solyndra,’" which fingered electric car battery maker A123 Systems as ... well, you get the idea...

It's just an example of the nagging tendency of the media to fall back on "this thing looks like that thing" tropes, thus losing the details of the story in the blinding light of all the shiny-shiny...

But what sets Politico apart is that they know better. All they have to do is read their own publication -- specifically, Alex Guillen's April 4 piece, "A $2 billion solar mistake -- from the media."

In his article, Guillen describes how lots of media organizations bought the hype that Solar Trust, an Oakland-based company that was planning to build a large solar farm in Blythe, Calif., had cost taxpayers $2.1 billion in DOE-guaranteed loans after it filed for bankruptcy. The problem is that Solar Trust had never taken the loan -- they'd actually backed out of the deal in August.

So the problem isn't the massive cost to the public treasury of central planning experiments that predictably failed. Nor is it that so many green companies buzzing around the nest of government handouts keep failing. (Note that the National Review story Linkins cites wittily uses a double-"Next" to allude to the great number of bum taxpayer investments that have been made.) Rather the problem is that media shorthand has made room for a new term that is maybe irritating in the way the old habit of adding the suffix -gate to political scandals was irritating.

Ron Bailey correctly noted the details of the Solar Trust failure in April.

Last October I posited that the challenge in finding the Next Solyndra was not, as Linkins claims, a shortage of claimants but an oversupply of them:  

The competition for the title “Second Solyndra” has become somewhat like the search for the New Dylan in the seventies. The New York Times nominates San Jose-based SoloPower, which got a cool $197 million from the Energy Department. Previous contenders have included SunPower and the Solar Power Project (which came in for its own $737 million DOE loan shortly after Solyndra went south). You’ll also be relieved to know your tax money is helping to build low-emissions sports cars in Finland. And in a rare moment of efficient stimulus, a Tennessee electric truck terminal has managed to go bankrupt with only $400,000 in federal green stimulus. At that rate, profits must be right around the corner. 

I am also on record believing the Massachusetts-based Beacon Power won the competition to become the next Solyndra last year. Ener1 or some other company may have taken a bronze medal. Now we're well into the mid-pack of runners in the Solyndra race. 

Linkins blames the Chinese for these failures. (Those crafty devils have struck again by offering a product that does the job as well or better at a lower cost — an Ancient Chinese Secret that no American entrepreneur could have foreseen or been expected to plan for.)

But Linkins won't get a break from the "Next Solyndra" label until Next Solyndras stop appearing. I advise patience along that line, because it’s going to be a long time before we see the last Solyndra

Cracks Appear in California State Senate as High-Speed Rail Vote Approaches Station

Next week marks the announced deadline for the California state Senate to agree to issue bonds to fund the first leg of the $69 billion high-speed rail project. The deadline is intended to give the state enough lead time to begin construction before the end of the year in order to qualify for $3.5 billion in matching stimulus funds from the federal government.

But Sacramento columnist Dan Walters is taking note that some state Senate Democrats are balking. They might not have the votes after all:

Senate President Pro Tem Darrell Steinberg has publicly pledged to approve construction funds and wants a vote next week. Just weeks ago, Senate approval appeared certain, but with Republicans solidly opposed, Steinberg needs support from 20 of the 24 other Democratic senators. At the moment, the votes aren't there.

Three Democrats -- Mark DeSaulnier, Alan Lowenthal and Joe Simitian -- have been openly skeptical of the project. At least three others, and probably more, are unconvinced and uncommitted, vote counters say.

Steinberg suffered a setback this week when Democratic senators strongly objected to placing hundreds of millions of dollars in bullet train property acquisition and engineering money in the budget bill before a vote on proceeding with a 100-mile segment in the San Joaquin Valley.

A revised budget bill that removed the disputed funds was quickly written and placed on the floors of both houses Wednesday.

Also of note: DeSaulnier is up for re-election in November, term-limited Lowenthal is running for Congress, and term-limited Simitian just won a seat on Santa Clara County’s Board of Supervisors. San Jose, where a public vote to reform public employee pension benefits also passed in June, is Santa Clara County’s seat. Gov. Jerry Brown may ignore the public polls turning against the train, but not all Democrats have that option.

Brown may regret ignoring the polls anyway. A commenter on Walters’ column points out that issuing bonds for high-speed rail could jeopardize Brown’s pet tax increase vote come November. I can see the campaign ads in my head now blanketing the airwaves, pointing out that Sacramento expects voters to approve a tax increase after spending billions on a train project the majority no longer wants.

Over at the federal level in Congress, House Republicans voted today to block future use of federal funds on California’s high-speed rail. The vote was along party lines and wouldn’t affect the money already earmarked, so it will probably go nowhere fast (train pun here).

The 5 Most Unlibertarian Supreme Court Rulings Still Standing

James Madison envisioned the judicial branch of our government as “an impenetrable bulwark against every assumption of power in the legislative or executive.” In reality, the U.S. Supreme Court has been more like a rubber stamp, allowing all manner of harebrained government schemes to survive despite their blatant conflict with the text of the Constitution.

Yesterday’s dismal ruling in National Federation of Independent Business v. Sebelius was no exception. Not only did the Supreme Court vote to uphold ObamaCare’s requirement forcing all Americans to buy health insurance, Chief Justice John Roberts even cooked up an insidious new way for Congress to run our lives via its vast powers to “lay and collect taxes.” Where's Harriet Miers when you need her?

But don’t worry, it gets worse. Here are the top 5 most unlibertarian Supreme Court rulings still standing (and the individual mandate didn’t even make the list!).

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William Shatner Pantsed by TSA

Known Canadian William Shatner, revered by generations of audiences the world over for his electrifying lead performances in Star Trek, T.J. Hooker, Boston Legal, The Twilight Zone and countless other standards of modern popular culture (and, you'd think, a person famous enough that even TSA agents in L.A. County would recognize him as a passenger with a low-risk terrorist profile), was humiliated by federal security agents while trying to fly out of Los Angeles International Airport. From the Toronto Sun, all Commonwealth usages in original:

Star Trek legend William Shatner was left nursing a bruised ego when his trousers fell down during an airport security check in front of dozens of fellow travellers.

The actor was queuing at Los Angeles International Airport to catch a flight to South Africa when he was singled out for a search by officials.

More from Inquisitr.com

The actor, who was in the process of boarding a flight to South Africa was singled out by security for a check, and that’s when things got embarrassing for the actor. Shatner decided not to wear a belt to hold his pants up, which is said to be the number one leading cause for pantsing strangers in an airport. The pants fell down and according to people there, exposed the actor’s underwear.

While recounting the incident at LAX Shatner went on to say, “It was awful to have people looking at me with my pants down, probably the most embarrassing thing that’s ever happened to me… It was a long flight so I wanted to wear loose clothing because I didn’t want anything to bind me.”

He's lucky they didn't steal anything out of his luggage.

It's a negative tribute to the Transportation Security Administration that TSA thugs were able embarrass a man who kept his dignity through both Kingdom of the Spiders and a recent senior moment during which Shatner tried unsuccessfully to ad-lib his way out of an insulting remark he'd made about a resort on the UK's Devon coast: 

Shatner, 81, dropped his clanger while he was appearing as guest host on the BBC's satirical quiz 'Have I Got News For You' on May 28.

He mentioned Ilfracombe as a venue in the Olympic torch relay, but mispronounced its name, drawing a remark from panellist Charlie Brooker that it sounded "deeply sexual".

Shatner went on to ask the panellists whether they had ever been, before adding: "The place is laced with prostitution."... 

After hearing that some residents were angered by the off-the-cuff remark, Paul Crabb, a town councillor, wrote to Shatner via his agent and manager, inviting him to the town... 

In an email sent to Mr Crabb and signed 'Bill', Shatner responded that prostitution "commonly means sex for something of value".

He said: "I would be hard pressed to believe that sex was not being had in Ilfracombe for something of value, perhaps a lengthy marriage, children or a valuable career.

"In any event, my apologies for having singled out Ilfracombe as a potential haven for prostitution. With you overseeing, I am sure that will not happen."

Shatner speaks Esperanto: 

Eric Holder Becomes Election Issue, Small Biz Frets Over ObamaCare, Fly This Drone to Cuba!: P.M. Links

  • Eric Holder is, according to polls, the least popular member of the Obama administration, and he's just a tad controversy-prone, making him a likely issue in the presidential election. A low-profile Supreme Court decision upholding unpopular health-care legislation just might play a role, too.
  • With the ACA poised to go into effect, small businesses have a new opportunity to wade into the consequences of a complicated, bureaucratic law. Some are curtailing expansion plans, outsourcing and laying off workers to avoid crossing the magic 50-employee mark that subjects them to expensive requirements. Others will just pay the penalty for ignoring those mandates.
  • Consumer spending remained stalled in May at the weakest level since November, as Americans responded to poor job prospects and the unholy sight of whatever is happening in D.C. by keeping their cash at hand.
  • Having successfully taxed and regulated their aboveground economies into tatters, the European Commission wants member governments to target their shadow economies — representing an estimated 20 percent of collective GDP — with tougher penalties for escaping taxes, a cross-border identification scheme and a common effort against tax havens. The Channel Islands — a popular refuge for over-taxed Britons — may be in their sights.
  • Globovision, the last Venezuelan television station openly critical of authoritarian President Hugo Chavez, is the target of an order by that country's Supreme Court seizing $5.7 million in assets. The order comes as the station fights a $2 million fine for embarrassing the powers-that-be with its coverage of prison riots.
  • Personal possession and use of small amounts of marijuana and cocaine got the thumbs-up from Colombia's Constitutional Court, clearing the way for the government's decriminalization proposal. Sounds like a fun country, really.
  • Researchers at the University of Texas spent $1,000 to build a system that could take over and re-route or crash civilian drones. The approach could potentially work against other GPS-reliant systems, too. (Google Maps says, "Dive! Dive! Dive!")

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"If we dismiss criticism of government misbehavior because of partisan motivations, we'll never entertain significant criticism of the government"

A small corner of the Internet is exploding with rage over a breathtakingly stupid CNN column by sportswriter L.Z. Granderson (noted earlier this week by Reason's own Brian Doherty). In that column, titled "Don't be nosy about Fast and Furious," Granderson writes

[S]ometimes the federal government deems it necessary to get its hands a little dirty in the hopes of achieving something we generally accept as good for the country.

Much in the same way, Project Wide Receiver and Project Road Runner -- the earlier versions of Fast and Furious under President Bush -- were executed with the hope that they will do more good than harm. Hardly anyone in the public knows the finer points of these programs.

Were they legal?

Hell no.

Were they effective?

Who knows?

Were they done as a way to keep America safe?

Yes.

And maybe it's better for us not to be so nosy, not to know everything because, to paraphrase the famous line from the movie "A Few Good Men," many of us won't be able to handle the truth.

While Brian did a great job taking Granderson to task, some other voices have weighed in since then, and they are all equally spot on. 

Ken at Popehat

Right now scandals over both Fast and Furious and the government response to it are being spun in many places as a cynical partisan obsession. I have not the shadow of the doubt that many of the loudest critics of the government have partisan motives. But if we dismiss criticism of government misbehavior because of partisan motivations, we'll never entertain significant criticism of the government. We'll always have partisanship. We can't let it be an excuse to abandon our obligations as citizens to monitor and criticize the government.

Gawker's Mobutu Sese Seko (a pseudonym, obvs): 

Granderson tells us that, "We still don't have access to all of the messy facts surrounding the Iran-Contra scandal that erupted during the Reagan administration." This is somehow an argument for less disclosure instead of a cry of disgust that president George H.W. Bush was able to kill further investigations by pardoning men who were probably his co-conspirators. Worse, his argument segues into generation-old fawning over Oliver North.

See, Eric Holder is a lot like Oliver North, and Oliver North "was a fall guy. Not for president Reagan but for all of us." It's a persuasive reading of the Iran-Contra affair, so long as you are totally unaware of anything else about it. North admitted to lying to congress and destroying evidence, and talking heads rewarded him with discussions about whether he was the soul of honor and an embodiment of the loyal nobility of America. Ollie just saluted so crisply, and he had a code—like Omar, from The Wire, except white. Also, if Omar robbed drug dealers and gave the money to central Americans who rape nuns.

and Salon's Glenn Greenwald

This is the glaring paradox at the heart of the establishment media class. They parade around as adversarial watchdogs whose prime role is to foster transparency and shine a light on what is done in secret. But there is literally no group more slavishly devoted to the virtues of government secrecy than they. LZ Granderson’s demand that we keep our nosy noses out of what the Government does (like Richard Cohen’s similar demand that we keep the lights off) is notable only because it’s a more explicit and honest expression of this ethos than they usually admit to.

Government Mini Golf: The Federal Regulations For Putt-Putt Courses

Next time you hit a golf ball past a tiny model windmill in a game of miniature golf, it will probably be on government-regulated course. 

Under the umbrella of the Americans with Disabilities Act, the federal government has issued new regulations governing the size, slope, and even the length of the grass fibers used on the course. Via Ryan Young of the Competitive Enterprise Institute:

The federal government regulates the slopes of miniature golf courses. The new standard “permits a slope of 1:4 maximum for a 4 inch rise where the accessible route is located on the playing surface of a hole.”

If a course uses artificial turf instead of grass, it also regulates length for the fibers. The height of the “grass” shall not exceed half an inch.

The so-called “start of play” areas must be at least 48” x 60”, and shall not have a slope steeper than 1:48.

Miniature golf isn't the only type of fun the new rules regulate: According to the federal register, the new guidelines "include scoping and technical provisions for amusement rides, boating facilities, fishing piers and platforms, golf courses, miniature golf, sports facilities, and swimming pools and spas."

Merkel Concedes to the PIGS and Accepts Bailout Agreement

Angela Merkel has appeased other European leaders, and the markets, by agreeing to a plan that aims to tackle the eurozone crisis. The plan, backed by Italy, Spain, and France, allows for rescue funds to remain available for banks without constituent nations having to impose austerity measures. In Germany the press has spun the agreement as a defeat, with Merkel being portrayed as having conceding too much to Spain and Italy in particular.

The current bailout mechanism, the European Financial Stability Facility, will continue to provide relief until the introduction of the recently proposed European Stability Mechanism that will be launched next month. Under the new proposals not only will funds be available to banks regardless of the behavior of the countries they happen to be in, but the funds may now be used to by bonds.

The Germans, Dutch, and Finns had been pushing against these sorts of proposals. However, Merkel’s concession looks like the beginning of the end of the anti-bailout rhetoric. The only hint at good news is that under the new agreement banks, no countries will receive funds. The worst news is that plans are in place for there to eventually be a closer and more unified union, something welcomes by most European politicians.  

The markets reacted positively to the news and borrowing costs for Italy and Spain have dropped. However, optimism may be short lived if Spanish and Cypriot bailouts do not have their desired effect and the plans cannot get implemented within the next few months.

It is not hard to understand why Merkel is now embarking on a damage control tour. The agreement unsurprisingly fails to take into account any moral responsibility. The bond agreement means that Germans will now bear similar burdens as the Greeks, Spaniards, and Italians. With debt no longer considered a national responsibility fiscal union looks increasingly likely.

If you have a moment (and a stiff drink to hand) you can read the agreement here

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More Universities Set To Ban Outdoor Smoking

From the nanny state to the babysitter campus: Colleges across the country are making moves to completely ban smoking on school grounds. While bans on lighting up indoors have been around for roughly a decade, the San Francisco Chronicle reports that many higher education leaders are working to prohibit outdoor smoking all over campus, from outside of university buildings to school sidewalks and benches. Schools like University of Missouri-Columbia and the City University of New York system will soon join over 700 schools nationwide [PDF] that currently have a zero-tolerance smoking policy.

Advocates of smoke-free colleges, like Americans for Nonsmokers’ Rights (ANSR), argue that universities should play parent for college students. “[Colleges] are questioning what the role of tobacco is in academic settings, where we’re supposed to be standing for truth and training the next generation of leaders,” said Bronson Frick, associate director of ANSR.

But does campus nannying really count as training? Not according to Audrey Silk, the founder of New York Citizens Lobbying Against Smoker Harassment, who tells the Chronicle that universities are responsible for playing teacher, not doctor: "Schools are a business," she says. "It's their responsibility to educate. What they're doing is indoctrinating."

"This isn't a health issue anymore," Silk adds. "It's a moral issue. There's absolutely zero reason for a smoking ban outdoors."

Many of the already smoke-free schools, like University of Michigan, use a word of mouth campaign to enforce the ban, meaning if someone catches you sparking up, you could get a harsh talking to for choosing to smoke on campus.

For more on smoking bans, click here. And for Motley Crew’s awesomely coiffed take on smokers’ rights, check out the video below. Because, you know, everybody knows that smoking ain’t allowed in school.

Obama’s Secretive Drug War: DEA FOIA Rejections Have Increased 114 Percent Since End of Bush Administration

Despite President Obama’s 2009 executive order requiring agencies to err on the side of disclosure when processing Freedom of Information Act requests, the Drug Enforcement Agency exempted a record number of FOIA requests in 2011 in nearly every category.

But it didn’t set records just in 2011: According to a comparison of publicly available data from FOIA.gov, the DEA rejected more FOIA requests in 2009, 2010, and 2011 than it did during the last year of George W. Bush’s administration.

When every FOIA exemption is taken into account (exemptions are the legal exceptions that allow agencies to withhold information from requesters), the DEA cited 2,195 exemptions in 2011, a 114 percent increase over 2008, when it cited only 1,024 exemptions.

The number of FOIA exemptions the DEA cited in 2011 also revealed an increase when compared to preceding years of the Obama administration--an increase of 38 percent over 2010 (1,581 exemptions), and 5.7 percent over 2009 (2,075).

But the really incredible number concerns the DEA’s citation of FOIA exemption 7(e). According to the Justice Department, 7(e) “affords protection to all law enforcement information that ‘would disclose techniques and procedures for law enforcement investigations or prosecutions, or would disclose guidelines for law enforcement investigations or prosecutions if such disclosure could reasonably be expected to risk circumvention of the law.’”

The use of 7(e), which allows the DEA to conceal its policies regarding the use of wiretaps, raids, confidential informants, straw buys, tracking devices, and other tactics, increased 620 percent between 2010 and 2011; and 912 percent between 2011 and 2008.

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If the Mandate Is a Penalty and Not a Tax, Then Let's Codify the Distinction

So if the White House is going to continue to insist that the mandate is not a tax but a penalty, despite the Supreme Court's ruling that the mandate is only constitutionally viable as a tax, then how about we resolve this issue formally, and settle things once and for all? Writing at The Volokh Conspiracy, David Bernstein has a clever idea for how that might be accomplished:

I’d schedule a new vote in the House on the individual mandate, but replace the “penalty language” with language specifically acknowledging that the “penalty” is actually a tax. If the Democrats vote “aye,” they’ve acknowledged breaking the Obama pledge not to raise taxes on the middle class. If the Democrats–specifically those who already voted for the mandate–vote “nay”, what becomes of the tax argument in future litigation? Seems to me that Roberts was only able to argue that the mandate is a tax because no one [officially, by Congressional vote] specifically said it wasn’t. At least it would look very peculiar that the Court upheld the law on a theory that Congressional supporters of the law refuse to adopt.

If the White House is so certain that the mandate is not a tax but a penalty, then administration officials shouldn't mind other Democrats saying so formally and codifying this distinction into the law.

New Hampshire Adopts Jury Nullification Law

Jury nullification, in which jurors refuse to convict defendants under laws they find objectionable or inappropriately applied, is a favored tactic of many libertarians who, rightly or wrongly perceive individual liberty as, at best, a minority taste among their neighbors. They like the idea of a tool that can be wielded on the spot to shield people from powerful control freaks without first having to win a popularity contest. But nullification is useful only if people know about. And last week, New Hampshire's governor signed a law requiring the state's judges to permit defense attorneys to inform jurors of their right to nullify the law.

On June 18, Governor John Lynch signed HB 146, which reads:

a Right of Accused. In all criminal proceedings the court shall permit the defense to inform the jury of its right to judge the facts and the application of the law in relation to the facts in controversy.

Short, simple and to the point. Nullification advocate Tim Lynch, of the Cato Institute, thinks it's a step in the right direction, though not necessarily a game-changer. Says he:

This is definitely a step forward for advocates of jury trial.  Allowing counsel to speak directly to the jury about this subject is something that is not allowed in all the courthouses outside of New Hampshire–so, again, this is good.  I am concerned, however,  that this language does not go far enough.   We don’t know how much pressure trial judges will exert on defense counsel.  As noted above, if the attorney’s argument is “too strenuous,” the judge may reprimand the attorney in some way or deliver his own strenuous instruction about how the jurors must ultimately accept the law as described by the court, not the defense.  I’m also afraid what the jurors hear will too often depend on the particular judge and, then, what that judge wants to do in a particular case.

So the law is an improvement over the old order, especially in an era when courts and judges are overtly trying to suppress jury independence, but one whose effectiveness is yet to be determined.

But is this faith in jury nullification misplaced? How likely are we and our neighbors to symbolically flip our middle fingers to the powers that be and free defendants charged with, say drug offenses or gun law violations? After all, the power has long existed, but you don't often hear of juries staging revolts.

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Reason Writers Around Town: Shikha Dalmia on Detroit's Ongoing Fiscal Farce

A sigh of relief swept through Detroit recently after a judge threw out a legal challenge to the “consent agreement” the city just signed with the state to clean its books and avoid bankruptcy. The lawsuit, filed by the city’s megalomaniacal legal counsel, represented a level of overreach ridiculous even by Detroit’s lofty standards, notes Reason Foundation Senior Analyst Shikha Dalmia in her latest column at The Daily. "But in the tragicomedy that is Detroit, it would have been better if it had succeeded and expedited Motown’s rendezvous with bankruptcy."

She points out:

Many cities across the country are facing unsustainable legacy costs. But Detroit is uniquely impervious to political solutions because the ratio of its public moochers to private producers is far higher than others. There are too few Detroiters with a vested interest in fixing the city and too many with a vested interest in sucking it dry. Only bankruptcy will convince them that there is nothing more to be milked.

Read the whole thing here.

Obama Administration Argues to Supreme Court that ObamaCare's Mandate Is a Tax, Tells Reporters That It's Not a Tax

The Obama administration's position on the tax status of the individual mandate is now perfectly clear: It is absolutely not a tax. Except that it is, when making the case for mandate's legality in a court of law. But still, it's obvious that it's not a tax, at least when the press asks if it's a tax. 

In response to press questions about yesterday's Supreme Court health care case, which ruled that the mandate was constitutional as a tax, White House press secretary Jay Carney insisted today that the mandate was not a tax but a penalty. "It's a penalty, because you have a choice. You don't have a choice to pay your taxes, right?" Carney said, according to ABC News. 

I wish the administration had made this clearer to the Supreme Court: Chief Justice John Roberts' majority opinion ruled very clearly that the mandate was absolutely not constitutionally valid as a penalty for failing to obey a command to purchase health coverage. According to the ruling, the mandate can be justified only as a tax on those who, for whatever reason, remain uninsured. 

If we are to believe Carney that the mandate is not a tax but a penalty, then shouldn't the provision have been ruled unconstitutional? 

Except, of course, that we know the administration thinks the mandate is justifiable as a tax, because that's exactly what they argued to the Supreme Court, as well as all the lower courts that heard the case. The Supreme Court's majority, unlike most of the lower courts before it, even those that ruled in favor of the mandate, bought the tax argument. But now Carney, the White House's top public spokesperson, is explicitly stating otherwise. 

This is an administration that has long tried to have it both ways. President Obama himself strenously denied in 2009 that the mandate was in any way a tax. And then proceeded to stand by as his administration argued in the court system that actually it was a tax. This resulted in one federal judge scolding the administration for trying to have it both ways. In his 2010 ruling against the mandate, Judge Roger Vinson wrote:

Congress should not be permitted to secure and cast politically difficult votes on controversial legislation by deliberately calling something one thing, after which the defenders of that legislation take an “Alice-in-Wonderland” tack and argue in court that Congress really meant something else entirely, thereby circumventing the safeguard that exists to keep their broad power in check.

Yet this is exactly what the administration has done. 

But I think we can resolve this: Let's all agree with the administration's repeatedly stated position that the mandate is not a tax but a penalty. And then let's all agree with the Supreme Court majority that, as a result, the mandate is unconstitutional.  

As Goes New York, So Goes San Francisco; Stop and Frisk Coming to the West Coast, Edgy!

Apparently unimpressed with the newfound notoriety the NYPD’s stop and frisk policy has gained, San Francisco’s mayor Ed Lee appears poised to bring the policy to the home of Haight-Ashbury. From the San Francisco Examiner:

Lee, a former civil rights attorney, recently told The San Francisco Chronicle that he’s examining “edgy” tactics such as the New York Police Department’s “stop and frisk” policy. But civil rights groups say such methods lead to racial profiling.

“The mayor is very frustrated with the level of gun violence, especially in the southeastern part of our city,” his spokeswoman Christine Falvey said Thursday. “We can’t keep doing the same thing. We need to get better results and the mayor has clearly stated to the community that he is willing to try something edgy, something controversial. However, he’s not willing to infringe on anyone’s civil rights.”

He’s even talked to Mike Bloomberg!

Though the NYPD’s stop and frisk polices have lasted at least a decade, opposition to it gained new political traction this year; one New York state senator linked it to the Trayvon Martin shooting and the process of politicization reached an apex when Chris Matthews compared the Congressional investigation of a federal gunrunning operation and documents demanded of Eric Holder to the dehumanizing and pervasive policy of stop and frisk in New York City. Now the policy’s coming to San Francisco, another liberal bastion. For safety! Don't ask questions.

Reason on Stop & Frisks

Nick Gillespie on the Freaky Fetishes of Golden Age Hollywood

In the grand, effluvia-soaked tradition of Hollywood Babylon, a new memoir from sexual networker Scotty Bowers lets it all hang out when it comes to exposing screen giants’ erotic excesses. Like MGM in its heyday, writes Nick Gillespie, Full Service: My Adventures in Hollywood and the Secret Sex Lives of the Stars has more stars than there are in heaven. From silent-screen royalty such as Gloria Swanson and Ramon Novarro to classy Brits such as Cary Grant and Elsa Lanchester to American legends such as Mae West and Rock Hudson, Bowers dishes long and hard on just who preferred what kind of sex, how often, and with what sort of partner(s).

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Meme Alert: Gillespie Says No

More signs of the apocalypse (the most recent previously being a reality TV show featuring retired Gen. Wesley Clark and Todd Palin): I have apparently become a meme. The picture is a cap from my appearance last week on HBO's Real Time with Bill Maher, where I had fun sparring with the host, MSNBC's Rachel Maddow, billionaire press magnate Mort Zuckerman, and actor Mark Ruffalo. (Watch the show.)

There's about 55 different takes on "Gillespie Says No" over at Meme Generator. Join in the fun there or over at the Reason Facebook page.

Police Raid Wrong House, Steal 18-Year-Old Girl's Computer Thanks to Unsecured WiFi Connection

When Evansville, Indiana, police officers started receiving threats against their families, they acted fast. The police traced the threats to the IP address of the Milan family on East Powell Avenue. And on June 21, they sent in a SWAT team to put on an impressive show of force. 

Evansville police arrived at the the home of 18-year-old Stephanie Milan and her grandmother, smashing an already-open door and tossing a couple of flashbang grenades in the building. The police said say they knocked, but that knocking in these instances is intended to "distract."

Lucky for us—and for the Milan family—the cops also thoughtfully invited a local news crew, which recorded the results for the world to see.

In the video, the knocking is not apparent. After smashing the window and busting open the door, they throw in two flashbang grenades, and then barge into the building to do their thing. The stated reason for the raid was that the police officers were concerned for the safety of their families. Yet they seem to show little concern about the prospect of bringing loaded guns into a family home. They also took Stephanie's computer and cellphone for analysis.

After the raid, police determined that the WiFi connection was unsecured, meaning that anyone could have borrowed the connection to post the threats. Well, mistakes happen.

Repairs to the house were made at city expense. But were there any lessons learned?

In pursuing another lead on the same case this Monday, law enforcement visited another house. This time, they knocked. The Evansville Police Department is making no attempt to apologize for their raid on the Milan home, however.

As Ars Technica noted in its coverage of the event, incidents of this nature are common, and easily solved with the most trivial of precautions. Police: Check to see if a network is unsecured before you start smashing doors. Internet users: Secure your network, for crying out loud.

Find more on overzealous police raids, look here, here, here, here, and here.

ReasonTV covered police raids here.

Steven Greenhut on the Supreme Court, Public Sector Unions, and the First Amendment

For people who truly are interested in a just and fair society, writes Steven Greenhut, there’s one easy way to sort through some seemingly complex issues: Turn the tables. If, for instance, one is debating a controversial law affecting a particular group, it’s best to think about how fair it would seem if that law were applied in the same way to you.

Recently, the U.S. Supreme Court issued a verdict in the case of Knox v. Service Employees International Union, Local 1000, showing how deeply it understands that basic concept. By a 7-2 vote, the high court slapped down the union for deducting money from its employees’ paychecks and using it to fight against California campaign initiatives—without giving its nonmembers a chance to opt out of these political campaign contributions.

View this article

Chief Justice John Roberts Splits the Baby

Among the many stories in the Old Testament of judges and kings (often dual office-holders of sorts) is that of King Solomon’s decision to cut a baby in half to determine who the true mother was. Chief Justice John Roberts channeled his inner King Solomon, of sorts, in penning the majority opinion in yesterday’s ObamaCare decision. The chief justice rejected the constitutional basis by which the legislation passed the Congress, that it was an exercise of their commercial regulatory powers, and instead ruled that what Congress was doing was exercising its taxing power (whether or not it wanted o own up to that), which it could. He made a point to declare that "[i]t is not our job to protect the people from the consequences of their political choices,” and that the ruling was not on the wisdom of the legislation, just its constitutionality. Had ObamaCare been presented in Congress as a tax, of course, it would probably have never passed. Democrats consistently denied it was a tax, and Obamacare just barely passed anyway. But those who cared still to legitimize legislation with the Constitution pointed to the Commerce Clause as justification—the Court, for the first time in 75 years, declined to expand Congress’ commercial regulatory power, instead exercising “judicial restraint”.

We live in a country whose federal regulatory code grows by the minute and whose federal government legislates and regulates a wide array of human activity. In placing ObamaCare within the realm of the government’s power of taxation, the chief justice opens the constitutional door to all kinds of behavioral modification taxes down the line. Could the Congress set the tax rate to 100% and then offer rebates for purchasing the “correct” products and making the “correct” lifestyle choices to work that rate down to something more reasonable? The chief justice has said, essentially, not to look to the Court to stop the Congress from stupid politics. That’s “restraint.” So we’re stuck with the Congress the country keeps electing and empowering. Do you want that baby?

Complete Reason coverage of ObamaCare.

Cops Vs. Clouds: New App Will Keep Authorities from Deleting iPhone Videos

Carlos Miller of Photography is Not a Crime is helping publicize (and test) a new iPhone app that automatically streams video as a user is recording it and stores it remotely in a cloud, thus preventing grabby law enforcement officers from deleting footage.

The app is called TapIn, designed by a group of Silicon Valley developers. The app is still in testing, and they’re allowing Miller to recruit others to help try it out. Miller has instructions on how to get access to the app on his site. Here’s how a developer describes it:

It's an app that automatically saves any video you take with it to the cloud where it's publicly viewable instantly, sorted by location and time. Open the app and you're recording in one tap. In most cases, it's faster to use than the built-in iPhone video camera. This lets people see what you're seeing as you see it, and be able to jump around between multiple angles of the same event with one click. Even after the event is over, you can go back and watch any video that was taken. We're creating a way for people to share and be found by virtue of being in the right place at the right time, without having to worry about uploading, titling and tagging videos.

An Android version is also in development.

For photography-loving folks in the Miami area, Miller is also offering an opportunity this weekend to give TapIn a test run. On Saturday, Photography Is Not a Crime will be holding its Third Annual Photo Protest event. The target this year is The Miami Herald building:

Two weeks ago, a Miami blogger was told by a security guard that he was not allowed to take photos of the Miami Herald building, which has been a landmark on Biscayne Bay since 1963.

Since then, a Miami Herald executive told another Miami blogger that they don’t have issues with people taking photos of the building.

They just had issues with people “trespassing” on the sidewalk in front of the building, which they evidently believe is private property.

However, according to Miami-Dade property records, the Miami Herald’s property line begins just inside the sidewalk, making that sidewalk public… .

So Miller and any other citizens who wish to participate will be converging on the sidewalk to take pictures of the building Saturday to see what happens.

Reason Writers at the Movies: Peter Suderman Reviews Magic Mike

In today's Washington Times, Reason Senior Editor Peter Suderman reviews Magic Mike, director Steven Soderbergh's surprisingly entertaining look at the world of male strippers:

WIth “Magic Mike,” director Steven Soderbergh and star Channing Tatum have concocted an easygoing and unexpectedly enjoyable look at the odd business of selling male skin — an honest and nonjudgmental movie about sex, commerce, ambition, fun, and all the ways they conflict and intertwine.

The story, drawn from Mr. Tatum’s own real-life experience as an 18-year-old male exotic dancer, is a conventional tale of ambition, success, and peril, but it’s nicely drawn and packed with small, human details: The movie takes place in a refreshingly realistic version of Tampa, Fla. — most people have real jobs, for example, like processing Medicaid payments or property insurance claims — rather than one of the catalog-perfect urban fantasylands that now seem to dominate the big screen.

Mr. Tatum plays Mike, a successful male stripper and entrepreneurial dabbler who adopts Adam (Alex Pettyfer), a new recruit to his stripping team. Working alongside Mike and under the tutelage of Dallas (Matthew McConaughey), Adam quickly becomes a sensation. But success, as always, brings risks as well as rewards.

Yet the movie declines to dwell on the risks or unduly moralize about the protagonists’ choices. When Adam’s sister Brooke (Cody Horn) asks about the profession’s allure, Mike’s answer is simple, direct and true: “He’s 19 years old. There’s women, money, and a good time.” 

Whole thing here

SCOTUS ObamaCare Ruling Still Screwing Up News Schedule

Yesterday CNN and Fox News had a hard time figuring out what all that legalese stuff in National Federation of Business et al v. Sebelius actually meant, and this week's cover of Time magazine grandly announced the wrong swing justice in the ruling. But it looks like the ObamaCare ruling's ability to mangle news teasers, chirons, headlines and ledes has not ended. This is currently at the top of Google News:

Good question. I think the answer is "Yes." 

Reason.tv: Bikini Banners and F*cking Cops Cracking Down on Curse Words! (Nanny of the Month, June '12)

June's busybodies want to shield your eyes from bikinis and remind you that they're not above ripping your garden out (even if you are complying with city codes).

But top dishonors go to the police chief who admitted on camera that his officers had "more important things to do," but still championed a measure that fines folks for swearing in public.

Presenting Reason.tv's Nanny of the Month for June 2012: Middleborough, Massachusetts Police Chief Bruce Gates!

About 95 seconds.

"Nanny of the Month" is written and produced by Ted Balaker. Opening animation by Meredith Bragg.

Watch previous "Nanny of the Month" episodes here.

Visit Reason.tv for downloadable versions of this video and subscribe to Reason.tv's YouTube channel to receive automatic notification when new content is posted.

3 Essential Takeaways From the Obamacare Decision: Gov't is Still Unlimited, Romney's Still Lame, & Health Costs Still Set to Rise.

So now that the sages of the Supreme Court have spoken about the constitutionality of The Patient Protection and Affordable Care Act, a.k.a. Obamacare, let's get straight to the takeaways:

1. There's no credible way to spin this as a "win" for limited government. Folks such as Wash Post columnist George Will and legal theorist Randy Barnett, to name two of many on the conservative and libertarian ends of things, are working hard to say the real silver lining in the SCOTUS decision is the clear language the court used in limited Congress' use of the Commerce Clause. As Will put it, "At least Roberts got the court to embrace emphatic language rejecting the Commerce Clause rationale for penalizing the inactivity of not buying insurance."

Yeah, well, when Chief Justice Roberts closed a window, he opened a door. Sure, I'd like to have some of what I assume Roberts and the rest of the Supes were smoking when they signed off on the it's-a-tax-not-a-penalty decision, but medical is illegal even in states where it's legal (wha?). That's due to the decision in a slightly older Supreme Court case, Raich v. Gonzalez, which showed the Commerce Clause to be infinitely stretchable when need be.

Will may be right that yesterday's decision may spark a backlash in favor of smaller government (or at least one that calls a tax a tax), but anybody who thinks government at any level will feel even the slightest bit limited by the ruling is flat-out wrong.

2. Hey Republicans: Mitt Romney is the worst possible candidate you could have right now. Before the ruling was even clearly reported, Republican and Democratic "strategists" (can't we call them something more accurate and less flattering?) were all claiming that yesterday's decision sealed the deal for their preferred party.

Let's leave aside the large and unchanged fact that Obamacare remains unpopular (most recent polls show majorities of Americans opposed to it and the number rises among those who say they are "well-informed"). The 2012 election will largely turn on the overall state of the economy, not whether the crux of Obamacare is recognized tax now rather than a mandate (though I must admit that now it's a tax, I kinda miss the broccoli mandate).

More to the point: Obamacare is essentially Romneycare on steroids (hmm, are those covered under the new law?), so having the architect of the latter blasting the former for doing what Romney crowed about doing in the Bay State is a tad confusing. It doesn't help that Romney, whose vagueness when it comes to spelling out anything about any of his policies is muy legendary, is vowing to "repeal and replace" Obamacare immediately upon taking office. The repeal part is self-explanatory (if not fully convincing) but what's he gonna replace it with? And if it's not a real market-driven plan that dismantles not only Obamacare but Medicare, why am I listening?

3. Health care will continue to cost more and more. One of the two major selling points of the new law was that it would "bend the cost curve down." Do Obamacare supporters seriously think that increasing government involvement in health care is going to keep costs low? Medicare, a single-payer system run by the federal government, is the single-biggest factor in rising entitlement costs; by design, the program's payroll taxes and premiums don't cover anything like the full cost of services (indeed, it's something like 50 percent, with the rest be covered by general tax revenue and borrowing). Medicaid is a classic case of Paying More for Less. That is, costs keep going up while outcomes are truly dismal for the folks trapped in the system: "A University of Pennsylvania study, for example, reported that colon cancer patients in Medicaid have a 2.8 percent mortality rate, compared with 2.2 percent for the uninsured. A study of Florida’s Medicaid patients found they were more likely to have late-stages of prostate cancer, breast cancer, and melanoma at diagnosis than the uninsured."

As CNN's Erin Burnett noted on OutFront last night, the "Affordable Care Act" has virtually no cost control mechanisms in place and a recent analysis by the firm Bradley Woods projects that insurance premiums will rise about 7.5 percent annually under the law.

Watch Burnett discuss the Supreme Court ruling with me, RedState's Erick Erickson, Buzzfeed's Ben Smith, and CNN's Roland Martin:

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. Follow him on Twitter.

Damon Root on How Judicial Restraint Shaped John Roberts’ ObamaCare Ruling

Critics of Chief Justice John Roberts’ majority opinion upholding the constitutionality of ObamaCare's individual mandate may be tempted to denounce the ruling as an example of judicial activism. But as Senior Editor Damon Root observes, the real problem with Roberts’ opinion is his extraordinary deference to Congress and the White House. As Root explains, the chief justice’s longstanding belief in judicial restraint came shining through in yesterday’s health care decision.

View this article

Kurt Loder on Magic Mike and The Amazing Spider-Man

Magic Mike is a lively surprise, writes Kurt Loder. Like Darren Aronofsky’s The Wrestler, Steven Soderbergh’s new film takes us into a barely-known world, and in focusing on one of its denizens—an aging male stripper—clears a new space for the playing out of human dreams and desires.

The Amazing Spider-Man, on the other hand, rests on an all too familiar premise: Teenage dweeb Peter Parker gets bitten by some kind of magical spider and starts shooting sticky webs out of his hands and scampering up walls. Do we really need to sit through this story all over again? Sony and Marvel Enterprises are hoping so, Loder writes, they’ve sunk an estimated $215-million into “rebooting” the familiar superhero saga. If only they’d invested in some new ideas as well. 

View this article

A.M. Links: Holder Held in Contempt by Congress, Bombings in Baghdad, Elections Threatened, Nightclub Shared Scanned IDs with NYPD

  • Congress voted to hold Eric Holder in contempt while Democrats walked out in protest. “This is a terrible day for the House of Representatives. What it’s about, we can’t decide for sure, but it’s not about Eric Holder and handing over papers. We don’t want to participate in something that has some kind of smell to it,” said Emanual Cleaver, apparently unaware of the general smell on Capitol Hill.
  • Bombs in and around Baghdad killed at least 20 as the summer starts off violently. The prospect of elections have been threatened.
  • Mongolians go to the polls to decide how to spend all the money the country's expecting from new mining projects.
  • According to a lawsuit, the nightclub Greenhouse shared information including IDs scanned at the door with the NYPD. Not sure what the patrons thought was happening there? All those cameras were probably on too!
  • The Fulton County school district became the largest in Georgia to convert to an all charter school system as the state’s districts face a 2015 deadline to re-organize their school systems (or not). Fulton County did refuse to extend by a decade the charter for one charter school over “questionable spending practices,” which never happen in public schools, obviously.
  • Maine will begin an investigation into a century of forced removal of indigenous children from their families by the state.
  • Rafael Nadal lost at Wimbledon to a Czech ranked 100th in the world.
  • China’s first female astronaut does tai chi in space.

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

Reason.TV: "Is There a Silver Lining to the Obamacare Decision?"

 

Random Reflections On the ObamaCare Ruling

One: We know a ruling is a going to lead to a holy legal mess when it begins like this:

ROBERTS, C. J., announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I, II, and III–C, in which GINSBURG, BREYER, SOTOMAYOR, and KAGAN, JJ., joined; an opinion with respect to Part IV, in which BREYER and KAGAN, JJ., joined; and an opinion with respect to Parts III–A, III–B, and III–D. GINSBURG, J., filed an opinion concurring in part, concurring in the judgment in part, and dissenting in part, in which SOTOMAYOR, J., joined, and in which BREYER and KAGAN, JJ., joined as to Parts I, II, III, and IV. SCALIA, KENNEDY, THOMAS, and ALITO, JJ., filed a dissenting opinion. THOMAS, J., filed a dissenting opinion.

Another instance where a ruling began this way was in the 1978 Bakke case. In it, Justice Powell could not convince a majority of his colleagues to sign off on his tortured claim that the University of California could not reject white candidates because of their race. But it could give blacks and other minorities extra bonus points because of their race. He was against racial quotas, you see, but thought racial preferences were just peachy – a distinction that his conservative and liberal justice had difficulty seeing. The upshot was multiple opinions with multiple dissents and multiple concurrences without any clear guidance as to which one was applicable. This has lead to 40 odd years of conflict and confusion in the lower courts that the Supreme Court is still trying to sort out (as I noted here.)

The ObamaCare ruling too will trigger a litany of lawsuits as lower courts try to figure out: the new limits to the Commerce Clause; whose plurality opinion is binding on any given issue; whether a law that is unconstitutional under the new reading of the Commerce Clause grounds can nevertheless be constitutional under some other rationale not even fully asserted by either party given Chief Justice Roberts’ injunction that if a reasonable – not good or solid, mind you -- constitutional argument exists somewhere, anywhere, in favor of a duly enacted law, the courts are duty bound to uphold the law.

The upshot will likely be an erosion of public confidence in the Supreme Court’s authority, precisely the opposite of what Roberts intended by splitting the ObamaCare monster in half.

Two: This ruling should put to rest the idiotic notion that conservative jurists are ideologically driven, partisan hacks who never seriously consider the other side’s argument. ObamaCare opponents had a lock only on one justice going in: Clarence Thomas. Who else they might muster was always up in the air given that the conservative justices try to balance multiple competing concerns: originalism; stare decisis; judicial modesty; the court’s legitimacy…yada, yada, yada. Kennedy, who votes often with the liberal wing of the court, was regarded as the most likely swing vote. That Roberts cast that vote on a case of such huge importance to conservatives and libertarians suggests that he is even less easy to pigeonhole ideologically.

What’s more, it should also be equally clear that if there are any ideologically driven, partisan hacks on the bench who never seriously consider the opposing argument, they are the liberal justices. It was a foregone conclusion that they would vote as a bloc to uphold ObamaCare’s individual mandate – and they didn’t disappoint. That two of them actually voted against the constitutionality of the Medicaid mandate is being regarded as something of a shock. However, the fact that not one of them worried about the original intent of the Commerce Clause – their preferred grounds for affirming the individual mandate – says something about whether they regard their ideological agenda as subordinate to the constitution or vice versa.

And what’s true of the Supreme Court is even more true of lower courts and the liberal punditry on the whole. Indeed, two lower court conservative justices voted in favor of ObamaCare but not a single liberal justice voted against it.

Too much fragmentation in a camp can be a sign of intellectual disarray. But too much unanimity can be a sign of intellectual closed mindedness. The former might be the case with conservative jurisprudence right now, but the latter is definitely the case with liberal jurisprudence.

Three: No one should ever again believe that conservative justices are opposed to judicial activism, preferring, instead to read and apply the law as written, computer-like. Justice Scalia proved this in his ruling in the Raich case when he happily signed off on an expansive understanding of Uncle Sam’s Commerce Clause authority to nullify state medical marijuana laws duly passed by voters just because he happened to disagree with them. Had it not been for his misguided reasoning, ObamaCare's constitutionality -- or lack thereof -- under the Commerce Clause would not have even been an issue.

But Scalia at least chose to exercise one of the two options presented to him: uphold or overrule the law as written. Justice Roberts, on the other hand, as many have already pointed out, has rewritten ObamaCare as per his taste. The law itself repeatedly noted that the fine for not purchasing health care was a penalty not a tax, a designation that Roberts accepts in order to determine if the court had standing to rule under the Anti-Injunction Clause (the Clause bars legal challenges to federal taxes before they have gone into effect). But he rejected that designation and redubbed the “penalty” a “tax” in declaring it constitutional. Never mind that, as the Wall Street Journal notes this morning:

The Pelosi Democrats explicitly structured the mandate as a regulatory "penalty." Congress voted down a direct tax in 2009. Supreme Court precedents going back to the 1920s and 1930s define penalties and taxes as mutually exclusive and critically different.

Every lower court that heard the health-care cases rejected the taxing argument. Administration lawyers devoted only 21 lines of their reply brief to this argument and it barely came up at oral arguments.

 As Justice Scalia noted in his scathing dissent: “Today the court saves a statute Congress did not enact." 

How much more activist can a justice get? (OK...don't answer that!)

It is hard to believe that Roberts buys his own tortured rationale. So why did he proffer it? The chief theory is that he was determined to find some way to uphold the law to deflect liberal accusations of partisanship by the court. In short, Roberts succumbed to politics in order to show that the court is above politics. He held the court's interests above the rule of law.

Justices are given a life-long appointment rather than being forced to run for elections every few years in order to protect them from the vagaries of daily politics. If the Supreme Court is still going to stick its finger in the political wind before making its rulings, is there any point in appointing justices anymore?

Justice Roberts might have done more damage to the court than he realizes. Sometimes just doing the right thing and letting the chips fall where they may is more conducive to advancing a cause than over clever efforts to please everyone.

Brickbat: It's Only Fair

The Lexington, Kentucky, Human Rights Commission is investigating Hands-On Originals, a local t-shirt company, after it refused to print t-shirts for a gay rights organization because the group's message conflict's with the owner's Christian beliefs. City ordinance bans firms from discriminating on the basis of sexual orientation.

Brickbat Archive

We Are Not Locking You Up for Disobedience; We Are Locking You Up for Failing to Pay the Tax on Disobedience

Brad Plumer  asks whether the Supreme Court's rejection of the Commerce Clause argument for ObamaCare's individual health insurance mandate will have significant implications for future exercises of congressional power. Plumer portrays the activity/inactivity distinction embraced by Chief Justice John Roberts and the four dissenters as invented out of whole cloth by Georgetown law professor Randy Barnett, even as he concedes that there was no need to draw this line until now because this is the first time Congress has tried to compel transactions in the name of regulating interstate commerce. Still, it is true that the Supreme Court has let Congress do virtually everything it has tried to do under this pretext since the New Deal. And even in this case, the Court has allowed Congress to mandate the purchase of health insurance by deeming the penalty for failing to do so merely a tax. As I explained in the July issue of Reason, this tax trick has much potential as a license for meddling, without any need for lip service to interstate commerce or "substantial effects" on it. Plumer agrees:

The fact that the individual mandate has been interpreted as a tax still gives Congress plenty of leeway. Congress might not be able to compel all Americans to purchase broccoli under the Commerce Clause. But, [University of Virginia law professor Douglas] Laycock notes, Roberts' ruling has created clear ways around this. "If Congress ever does need to mandate purchase of a product or service again," he notes, "it can impose a tax for failing to buy it."  

Even broccoli? Yes, even broccoli! So is taxing vs. regulating a distinction without a difference? In his majority opinion, Roberts says no:

Although the breadth of Congress’s power to tax is greater than its power to regulate commerce, the taxing power does not give Congress the same degree of control over individual behavior. Once we recognize that Congress may regulate a particular decision under the Commerce Clause, the Federal Government can bring its full weight to bear. Congress may simply command individuals to do as it directs. An individual who disobeys may be subjected to criminal sanctions. Those sanctions can include not only fines and imprisonment, but all the attendant consequences of being branded a criminal: deprivation of otherwise protected civil rights, such as the right to bear arms or vote in elections; loss of employment opportunities; social stigma; and severe disabilities in othercontroversies, such as custody or immigration disputes.

By contrast, Congress's authority under the taxing power is limited to requiring an individual to pay money into the Federal Treasury, no more. If a tax is properly paid, the Government has no power to compel or punish individuals subject to it. We do not make light of the severe burden that taxation—especially taxation motivated by a regulatory purpose—can impose. But imposition of a tax nonetheless leaves an individual with a lawful choice to do or not do a certain act, so long as he is willing to pay a tax levied on that choice.

People who decide not to pay a tax, of course, can get into plenty of legal trouble, including criminal prosecution as well as liens and forfeiture. For political reasons, Congress barred the IRS from using those scary remedies to extract the "shared responsibility payment" owed by people who fail to obtain government-approved medical coverage. The mandate was controversial enough without raising the prospect of taking people's homes or throwing them in prison if they failed to obey it. Future "tax" legislation aimed at getting Americans to behave as members of Congress think they should may not be so gentle. And while there is an articulable difference between locking people up for failing to obey a command and locking them up for failing to pay the tax imposed on those who reject a government-favored course of action, it is pretty thin, and not very reassuring.

[I initially misidentified the author of the Wonkblog post, a mistake I have corrected.]