Why the Court will strike down the healthcare law

Some desperate liberals are trying to make themselves believe that fear for its "legitimacy" will prevent the Court (by which I mean, the five Republican justices in the majority) from striking down Obama's signature legislative accomplishment a few months before a presidential election.

Nonsense, says TBA. Look at the nine justices and their 5-4 split. It's like a pencil balanced on its point: it can't last forever. Which way will it fall?

If Roberts et al. can throw this decision and help get Obama out of office, Romney will likely get to replace Ginsburg and perhaps even Breyer, as well as assure right-wing replacements for Scalia and Kennedy if they step down. They have the chance to keep the Court on the Republicans’ side for at least another generation.

Versus the likelihood that Obama would get to appoint at least one replacement for a Republican justice in a second term, and tilt the Court’s balance with incalculable effects.

With the stakes so high, do you think Roberts et al. care about "legitimacy"? Of course they don't.

Your powers are weak, [liberal] man

Jon Chait is not buying that there's a silver lining to the Court's striking down Obamacare:

In any case, the political ramifications of an adverse ruling seem more harmful than helpful. Yes, liberals will be charged up against the Court, though also more despondent that winning an election matters. Meanwhile, the ruling would be a powerful confirmation to swing voters of the central Republican indictment of Obama. See how far his big government plans went? So far that the Supreme Court said they violated the Constitution! The prospect of handing Mitt Romney the chance to attach the epithet “unconstitutional!” to his opponent would seem to overwhelm any potential benefit.

A somewhat more plausible source of comfort is the prospect that, with the moderate, Republican-designed plan now off the table, Democrats can focus on the one remaining legal avenue to solve the health-care crisis: a single-payer system, like Medicare. This is sort of the liberal Obi-Wan Kenobi option...



In assessing this option, it’s worth bearing in mind that the dead Obi-Wan did not, in fact, become more powerful than Darth Vader could possibly imagine. His new powers seemed limited to appearing as an apparition offering inscrutable advice to Luke Skywalker, whereas the previous, alive version featured the power to slice people’s arms off with a lightsaber.

He does however notice something I hadn't:

The hurdles to passing Obamacare were that Democrats needed to have a majority in the House, the presidency, and 60 senators. The good news to passing single payer is that they probably would only need 50 senators. (Single-payers could be done simply by expanding Medicare, a pure fiscal change that could be accomplished through a budget bill that can pass the Senate with a majority vote.)

Obstacles include a Supreme Court that might strike that down, too (because, hey, the LAW has nothing to do with anything) and the difficulty of getting 50 Dem senators to blow up the insurance industry.

Progress

The complexity of this legal system [in the later Roman Empire] was such that experts (iuriconsulti) were needed in every court, and sometimes just to draw up documents, but they may not always have been available or been fully reliable if they were. Even if legal help was accessible, courts did not necessarily judge justly, and the rich often benefited from judicial corruption and patronage .... In Egypt, papyrus documents recording the settlement of civil disputes in the fourth to sixth centuries show a strong tendency to avoid courts altogether, given their huge expense and danger, and to go directly to private arbitration.

—Chris Wickham, The Inheritance of Rome: A History of Europe from 400 to 1000, 31-32. Sounds, uh, completely unfamiliar.

... But does Wickham do more there than rewrite the famous passage from Gibbon?

The expense of the pursuit sometimes exceeded the value of the prize, and the fairest rights were abandoned by the poverty or prudence of the claimants. Such costly justice might tend to abate the spirit of litigation, but the unequal pressure serves only to increase the influence of the rich, and to aggravate the misery of the poor. By these dilatory and expensive proceedings, the wealthy pleader obtains a more certain advantage than he could hope from the accidental corruption of his judge.

Topsy-turvy justices?

This week's appalling oral arguments on the ACA in the Supreme Court are all over the internet, so they don't require much comment from me; see the How Appealing link in the sidebar if you want a roundup, and Balkinization is also doing good work.

But this from Jonathan Zasloff is too good not to mention. N.b. emphases his:

To grasp just how mendacious and incoherent the constitutional argument against the Affordable Care Act is, consider the plaintiffs’ argument today concerning “severability,” that is, whether, if the insurance mandate is struck down, whether the whole Act must be struck down.

The mandate is so intimately tied up in the whole scheme, argued lawyer Paul Clement, that all of the other provisions — community rating, guaranteed issue, the insurance exchanges, risk adjustment, the works — will also have to go.

Now also recall that the supposed argument here is that the mandate exceeds the federal government’s power to regulate “interstate commerce.” It is not an argument about personal liberty at all: that would be a substantive due process argument, in which the legislature receives enormous deference from the courts.

No one could possibly deny that if the federal government decided to write rules for all insurance companies concerning, say, community rating, guaranteed issue, insurance exchanges, and risk adjustment, that that would constitute regulation of interstate commerce. That is the quintessential form of regulation of interstate commerce. And the plaintiffs today have argued that the individual mandate is necessarily bound up with all of these forms of regulations, which is why it cannot be severed.

So here is the conservative argument: something that is necessary for the regulation of interstate commerce is not part of the power to regulate interstate commerce.

This, in short, is a revolution from above.

If the Act falls, it will not be because the Obama Administration did something wrong. It will not represent a “crisis of liberalism.” It will not be because the Democratic Party cannot govern. It will not be cause for any recriminations or hand-wringing.

It will be because five old men have decided that the Constitution does indeed “enact Mr. Herbert Spencer’s Social Statics,” and have decided to force their reactionary views on the rest of the country.

Death of a poet

Adrienne Rich, 1929-2012. Never personally cared for her anthology pieces, but a great feminist and poet. Plath, a few years younger, saw her as the (female) poet to beat, and jealously diarized Rich's prizes etc.

NMC notes the parallel death of Earl Scruggs, causing one to ponder the aesthetic juxtaposition as well as to wonder whether the angel of death took the wrong Scruggs.

... 3QD posts a 1968 poem by Rich:

I Dream I'm the Death of Orpheus

I am walking rapidly through striations of light and dark thrown
under an arcade.

I am a woman in the prime of life, with certain powers
and those powers severly limited
by authorities whose faces I rarely see.
I am a woman in the prime of life
driving her dead poet in a black Rolls-Royce
through a landscape of twilight and thorns.
A woman with a certain mission
which if obeyed to the letter will leave her intact.
A woman with nerves of a panther
a woman with contacts among Hell's Angels
a woman feeling the fullness of her powers
at the precise moment when she must not use them
a woman sworn to lucidity
who sees through the mayhem, the smoky fires
of these underground streets
her dead poet learning to walk backward against the wind
on the wrong side of the mirror.

Great minds think alike - UPDATED

Or is it fools? I forget.

Anyway, y.t. in a comment thread at LGM yesterday:

That to me is why this case is about the N&P Clause, not the Commerce Clause. (NOTE: I am an expert in neither.)

It’s difficult for me to accept that any problem of interstate commerce could justify a Broccoli Mandate.

But we *know* that the ban on excluding preexisting conditions is within the Commerce Clause. It’s a no-brainer.

To make the ban feasible, however, Congress has to make everyone opt into the insurance market. Straight N&P stuff – you just stand there and quote McCulloch v. Maryland until the other side starts to cry.

And well-known constitutional scholar Akhil Reed Amar, today:

The most important limit, the one we fought the Revolutionary War for, is that the people doing this to you are the people you elect. That’s the main check. The broccoli argument is like something they said when we were debating the income tax: If they can tax me, they can tax me at 100 percent! And yes, they can. But they won’t. Because you could vote them out of office. They have the power to do all sorts of ridiculous things that they won’t do because you’d vote them out of office. If they can prevent me from growing pot, can they prevent me from buying broccoli? Perhaps, but why would they if they want to be reelected? So if you ask me what the limits are, I’d say read McCulloch vs. Maryland. And reread it. And keep reading it till you understand it.

Alas, neither of us was called upon to argue the feds' case this week.

... Charles Fried is worth a look. He ends on a disheartening note about the apparent views of the conservative justices this week:

Politics, politics, politics. You look at the wonderful decision by Jeff Sutton, who is as much of a 24-karat gold conservative as anyone could be. He is a godfather to the Federalist Society. Look at his opinion. Or look at Larry Silberman’s opinion. I don’t understand what’s gotten into people. Well, I do I’m afraid, but it’s politics, not anything else.

... In comments, Just Thinking suggests that the democratic check on abuse of the N&P Clause, throwing the bums out, doesn't work. I think maybe that means "doesn't work well enough to suit some people." Regardless, Amar has good support for his position, as both Hamilton and Madison identified the same check in the Federalist. Hamilton in No. 33:

But it may be again asked, Who is to judge of the NECESSITY and PROPRIETY of the laws to be passed for executing the powers of the Union? I answer, first, that this question arises as well and as fully upon the simple grant of those powers as upon the declaratory clause; and I answer, in the second place, that the national government, like every other, must judge, in the first instance, of the proper exercise of its powers, and its constituents in the last. If the federal government should overpass the just bounds of its authority and make a tyrannical use of its powers, the people, whose creature it is, must appeal to the standard they have formed, and take such measures to redress the injury done to the Constitution as the exigency may suggest and prudence justify.

Madison in No. 44:

If it be asked what is to be the consequence, in case the Congress shall misconstrue this part of the Constitution, and exercise powers not warranted by its true meaning, I answer, the same as if they should misconstrue or enlarge any other power vested in them; as if the general power had been reduced to particulars, and any one of these were to be violated; the same, in short, as if the State legislatures should violate the irrespective constitutional authorities. In the first instance, the success of the usurpation will depend on the executive and judiciary departments, which are to expound and give effect to the legislative acts; and in the last resort a remedy must be obtained from the people who can, by the election of more faithful representatives, annul the acts of the usurpers.

The "limiting principle" as Amar notes is not a requirement imposed on other powers, like taxation ("but what if you tax at 100%?"). Some checks are political, not judicial (as we observed re: the pardon power under the Mississippi Constitution).

The ACA case, we had thought, was resolved 200 years ago in McCulloch:

Should Congress, in the execution of its powers, adopt measures which are prohibited by the Constitution, or should Congress, under the pretext of executing its powers, pass laws for the accomplishment of objects not intrusted to the Government, it would become the painful duty of this tribunal, should a case requiring such a decision come before it, to say that such an act was not the law of the land. But where the law is not prohibited, and is really calculated to effect any of the objects intrusted to the Government, to undertake here to inquire into the degree of its necessity would be to pass the line which circumscribes the judicial department and to tread on legislative ground. This Court disclaims all pretensions to such a power.

It appears that the Roberts Court, unlike the Marshall Court, may indeed pretend to that power. That will be John Roberts' legacy.

Parents, do not ask Mitt Romney to be your child's godfather

"I can tell you one thing. If I'm the godfather of this thing, then it gives me the right to kill it."

-- Mitt Romney, in an interview with Hugh Hewitt, on President Obama's health care law.

—Political Wire. Perhaps Mormon practices regarding godchildren are different than those I'm familiar with.

Student expelled for tweeting F-word(s)

Really, America, should a student be expelled for dropping the F-bomb online?

Police were called to Garrett High School Friday after students there threatened to protest. This all comes after a senior was expelled for what he tweeted on his personal Twitter account.

"One of my tweets was, fuck is one of those fucking words you can fucking put anywhere in a fucking sentence and it still fucking make sense,” said Austin Carroll, student. [Expletives restored.]

Austin was expelled from Garrett High School after tweeting the F-word under his account. The school claims it was done from a school computer. Austin says he did it from home.

Sorry, but any principal who *expels* a student for such conduct needs to be corrected, pronto. Good for the protesting students.

(Via Language Log, which praises Austin's syntactic analysis.)

Date night with Jesus?

I don't like the word "evangelical" in this sense, tho "fundamentalist" and my own mental shorthand, "Southern Baptist," are also inadequate. Anyway, "those people we're talking about when we talk about 'evangelicals.'" The New Yorker reviews an anthropologist's field observations in the Vineyard Christian Fellowship:

This casualness carries over to conversations with God. The Vineyarders asked him “for admission to specific colleges, for the healing of specific illness—even, it is true, for specific red convertible cars.” Some Vineyard women had a regular “date night” with Jesus. They would serve a special dinner, set a place for him at the table, chat with him. He guided the Vineyarders every minute of the day. Sarah told Luhrmann how, one day, after a lunch at a restaurant with fellow-parishioners, she was feeling good about herself, whereupon, as she was crossing the parking lot, a bird shat on her blouse. God, she explained to Luhrmann, was giving her a little slap on the wrist for her self-satisfaction. Sarah accepted the chastisement, but others don’t. They may get furious with God. And, according to some evangelicals, he feels bad when this happens. In “Disappointment with God” (1988), the religious writer Philip Yancey claims that God can’t bear for us to turn away from him. He longs for us to like him. It is hard to understand how evangelicals, most of whom are regular Bible readers, could come to this conclusion about the God of Abraham and Job.

Indeed.

Worth a read; this part struck me as significant:

Elaine, her “prayer partner” (the woman who brought the news of the cricket that sang Handel), had terrible problems: she couldn’t pay her rent, but neither could she get a job. She had interview after interview. Before each of them, she and Luhrmann prayed together vigorously, but she received no offer. Elaine said that she understood why: by refusing to grant her a job, Jesus was showing her that he wanted her to depend on him alone. About this, Luhrmann makes only a bland comment: reasoning such as Elaine’s, she says, “allows people to reinterpret a disappointment as, in effect, a promotion.” In the end, Elaine decided that she was a prophet. (Some members of the church agreed with her.)

Reinterpretation of one's experience is a key reason for religion. And interpreting God as "a stuffed Snoopy" (the author's metaphor) who unconditionally loves and consoles, certainly gives one a powerful interpretive tool. It also, arguably, allows people like Elaine to postpone growing up, since life becomes a spiritual quest for eternal childhood.

When Jesus said to be like a little child, I don't think this was what he had in mind. Or maybe it was?

Posner don't play

We order the defendants to show cause within 14 days of the date of this order why they should not be sanctioned for contumacious conduct in this court. If they ignore this order to show cause like the last one, they will find themselves in deep trouble.

This in yet another appellate victory by a prisoner, a fellow in Wisconsin who claimed that "Nutriloaf," a deliberately foul food used to punish prisoners, made him vomit and caused an anal fissure.

The defendants' offensive conduct in the court was failure to file a brief or respond to a show-cause order about the nonfiling: "They seem to think that the federal courts have no jurisdiction over a county jail." They also blew off the district court (which ruled for them anyway), and the 7th Circuit all but told the district court to impose sanctions there as well.

The conservative mind

Looking over at the New Criterion website, we find a review of Robin Harris's book The Conservatives: A History, featuring a telling quote from the Marquess of Salisbury:

One element of his fame results from a remark reported by his wife when, casually coming into the family drawing room after a morning at his desk, he said he did not understand what people meant by the “burden of responsibility.” One makes one’s decision in terms of the materials available, he said, “and not in the least upon the magnitude of the results which may follow. With the results I have nothing to do.”

Liberalism, indeed, is all about the results. Conservatives, pace Salisbury, care intensely about the results—lower taxes for the rich, for instance—but can't get away with saying so, hence they have to pretend their decisions are based on principles ("no new taxes!").

Hilton Kramer, R.I.P.

Hilton Kramer, editor of The New Criterion, has died, age 84.

His reactionary politics were too ill-thought-out to merit discussion, but his magazine was always worth picking up for its arts and literature coverage.

A resolute high Modernist, he was out of sympathy with many of the aesthetic waves that came after the great achievements of the New York School, notably Pop (“a very great disaster”), Conceptual art (“scrapbook art”) and postmodernism (“modernism with a sneer, a giggle, modernism without any animating faith in the nobility and pertinence of its cultural mandate”).

At the same time, he made it his mission to bring underappreciated artists to public attention and open up the history of 20th-century American art to include figures like David Smith, Milton Avery and Arthur Dove, about whom he wrote with insight and affection. Some of his best criticism was devoted to artists who had up until then been regarded as footnotes.

I suspect that as time wears on, Kramer's general lack of respect for the fads that followed modernism will seem increasingly correct.

Dibs!

On this book title: Epicurus: The Atheist Savior.

Litigation as mug's game

Zach Johnson was not a happy prisoner. Oh sure, there was the life sentence he was serving, with 50 years to serve thereafter, but never mind about that. No: Zach was unhappy that the State of Mississippi took his mug. His 16-ounce opaque plastic mug, which was confiscated along with the like mugs of every other prisoner in the South Mississippi Correctional Institution, because some inmates (tho not, on the record facts, Johnson) were hiding contraband in their mugs.

So he filed a grievance. And lost. And sued. And lost. And appealed. And ...

Won. 9-0 in the court of appeals.

The SMCI canteen sold Johnson his drinking mug. Johnson bought his drinking mug, using his own money from his inmate account, and at the time of purchase, the drinking mug was an authorized piece of personal property for an inmate to possess. Further, and important to note, the record does not contain any allegation that Johnson was using his drinking mug for any prohibited purpose. * * * Johnson is entitled to just compensation based on the MDOC and SMCI’s deprivation of his possessory right to his drinking mug.

I find the constitutional argument a bit off, inasmuch as it seems to rely on a concurring opinion by Justice O'Connor. I would not bet heavily on MDOC's losing this case on cert to the MSSC.

But let's take a step back. What relief did ole Zach seek?

Johnson requested he be reimbursed for the cost of his confiscated drinking mug or be provided a comparable clear drinking mug. His request was twice denied.

Would it not have been prudent to give the man back his $5 or whatever, rather than litigate this silly case—let alone place an adverse precedent in the books?

Congrats, pro se litigant Zach Johnson; boo hiss, Ronald King, SMCI superintendent.

... The COA btw was not impressed with SMCI's proffered remedy, which was to mail the mug to Johnson's home address: much good that would do to a man with a life + 50 sentence.

... Johnson's constitutional argument may be better than I suspected. Leaving aside O'Connor's solo concurrence in Hudson v. Palmer, the Court implied that where, as here, the State acted as a matter of deliberate policy, a remedy may lie:

Two Terms ago, we reaffirmed our holding in Parratt in Logan v. Zimmerman Brush Co., 455 U.S. 422 (1982), in the course of holding that postdeprivation remedies do not satisfy due process where a deprivation of property is caused by conduct pursuant to established state procedure, rather than random and unauthorized action.

Might work.

When is a girl not a girl?

Here's Jenna Talackova, who used to be a contestant in Canada's Miss Universe pageant:


I say "used to" because Ms. Talackova also used to be something else: a guy. Until 4 years ago at age 19, when she had a sex-change operation. Which apparently supposedly is against the rules of the pageant. Which, quite frankly, sounds like the kind of rule that won't fly with the Canadian Supreme Court, but time will tell.

Asked in 2010 whether she regarded herself as a transgender or as a woman, a winking Talackova replied, "I regard myself as a woman -- with a history."

The photograph suggests that she has sufficient femininity for the pageant. In fact, pardon us for suspecting the real reason for her exclusion is that models nowadays are supposed to look like slim boys with large breasts tacked on, so the other contestants may think starting off as a boy gives Talackova an unfair advantage.

("Lack ova"? You can't make this stuff up.)