The Health Care Ruling (Updated June 29)

New Tax for You

I won’t much quibble with the ruling (although I think it takes some interesting gymnastics to get to its conclusion). Here’s my issue: it never would have passed House and Senate if it had been sold as a new tax. We got sold “A” (with a side of “you have to pass it to find out what’s in the shiny package”) and ended up with “B” (and a side of “big, new tax).

It’s like the worst episode of Let’s Make a Deal ever.

Better Reading:

My friend, Roger Fraley, tries to find the silver lining.

Antonio Martinez tweets something that succinctly captures my feelings:

It’s troubling how many people are celebrating a tremendous loss of liberty because they think they’ll be getting something for free.

That, I think, is exactly right.

Todd Thurman at The Foundry finds a silver lining for fans of limited government.

On the statutory level, the Court is inexplicable in reading the mandate penalty as a tax when President Obama and congressional sponsors emphatically denied it was a tax, but that is only a misreading of a statute. On that statutory ruling, the Court majority held that the mandate penalty is not a tax for purposes of the tax Anti-Injunction Act, but is a tax under Congress’s taxing power, despite the fact that the law never calls it a tax. Yes, this is a terribly strained reading of the statute, but conservative constitutional scholars who challenged the mandate never said that Congress did not have the power to enact a tax similar to the mandate penalty.

Despite the Court’s error in reading the individual mandate penalty as a tax, five justices opined that the mandate, standing alone, cannot be justified under the Commerce Clause or the Necessary and Proper Clause. This is not remarkable to anyone who knows the original meaning of the Commerce and Necessary and Proper powers, but it is a serious blow to 90 percent of the legal academics and about 90 percent of Congress, since these have been the clauses used to justify so much of the modern administrative state.

I’m not so sure I agree, though; to me it seems an invitation to just penalize tax the hell out of us to achieve policy objectives. It seems to invite wrapping the biggest government programs and ideas in a big fat blanket of taxation to justify the overreach (which he somewhat acknowledges in the paragraph after what I’ve quoted). I actually think his opinion closely mirrors my own with one significant exception: I’m having a hard time finding enough shine to the silver lining. I think the bad of the decision so outweighs the good that the little bits we’re trying to grab onto are almost meaningless.

I see this as a big roadmap for further government excess. Except for one thing:

The majority’s ruling on the onerous conditions attached to the Medicaid expansion is also helpful in limiting Congress’s power to bribe states into submission or to threaten them with the loss of federal revenue in a long-run federal-state program. In a fractured set of opinions that will take some additional time to untangle, a majority of justices imposed limits on Congress’s ability to threaten the denial of previous funding streams based on states’ agreeing to new funding conditions in those programs. Indeed, seven justices seemed to agree that some constitutional limitations were breached in the Medicaid expansion. This itself is a landmark ruling.

That bit, in and of itself, is a good thing. A very good thing.

Damned shame that it is freighted with so much other baggage today.

Jeff Goldstein roars: I warned you. And he did.

Steve Green answers the question: “Well, Doctor, what have we got—a tax or a mandate?”

National Review’s editorial is blunt. And right.

 What the Court has done is not so much to declare the mandate constitutional as to declare that it is not a mandate at all, any more than the mortgage-interest deduction in the tax code is a mandate to buy a house. Congress would almost surely have been within its constitutional powers to tax the uninsured more than the insured. Very few people doubt that it could, for example, create a tax credit for the purchase of insurance, which would have precisely that effect. But Obamacare, as written, does more than that. The law repeatedly speaks in terms of a “requirement” to buy insurance, it says that individuals “shall” buy it, and it levies a “penalty” on those who refuse. As the conservative dissent points out, these are the hallmarks of a “regulatory penalty, not a tax.”

Last Update:

Peter Wehner pulls no punches over at Commentary Magazine’s web site.

The main challenge Roberts faced was to jerry-rig a (Tax Clause) argument to get him to where he was determined to end up. He employed specious, result-oriented reasoning in order to achieve an unprincipled—but for him, an institutionally desirable—outcome.

It was simply not his place to do this. And on what may have been the most important decision he is ever called upon to write, John Roberts produced a political, even disingenuous, and too-clever-by-half opinion. (Consider the withering dissent by Justices Scalia, Kennedy, Thomas and Alito to be mandatory reading. “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,” according to the four Justices. “That carries verbal wizardry too far, deep into the forbidden land of the sophists.”)

I cannot overstress just how disappointed I am with Justice Roberts’ decision and the damage that I think has been done. I’m not sure I’m willing to carry it as far as Mr. Wehner does here; that is,  I don’t know that Roberts thought that his gymnastics routine was anything other than good reasoning. I don’t know that he really did work from a desired end and then concocted a ruling to support that desire.

I  consider that to be a generous reading, but it does pose a problem: if he wasn’t acting in bad faith, believing that he needed to “protect the reputation of the court” more than he needed to make a correct legal ruling, then we have to face the fact that we have no idea how this man will rule on anything. His guiding principles are most certainly not ours (the left’s wailing and rending of garments during his confirmation notwithstanding) and he is not particularly conservative.

He is obviously intelligent and seemingly decent, but he will not be a reliable voice for conservatives in the future. For all that the left believes that we have packed the court with hard core conservatives, the truth is that the left has been far more successful at nominating and confirming true liberal voices to protect their interests.

What I wouldn’t give for another Thomas or another Alito…

Also worth reading, Daniel Foster’s wrap at NRO.

Colorado Fires

Okay, it’s getting a little scary out there. Not for me; I’m in a place pretty safe from wildfires. But the fires near Boulder and Colorado Springs are scary. Thousands have been evacuated and the weather is doing us no favors.

It’s hot, it’s dry, and we’ve seen gusting winds up to 65mph in some areas. Hundreds of homes have been lost and it looks like the situation is going to get worse before the firefighters will manage to get the fires under control. As I write this, I’m hearing that the Air Force Academy is being evacuated and the TV is showing fire getting uncomfortably close to the academy football field.

There are going to be a lot of families needing the generosity of the rest of us. Here are some organizations that will be needing donations and support.

Salvation Army and Red Cross are both providing a tremendous amount of support.

The Larimer Humane Society is working to rescue animals and reunite them with their owners. has lists of things that are needed by a number of agencies and organizations. That is where I will be focusing my giving.

Still Talking Gay Marriage

I’ve talked the subject to death and even said that I was largely done discussing it. I’ve staked out my position– rather openly– but I don’t know that I’ve ever moved someone else even marginally on the issue.

So, for me, it’s mostly done. For opponents: I know your position, you know mine, and for the sake of harmony, I choose to leave it to the side.

But I do want to share this. The founder for the Institute for American Values, a man who has been staunch in opposition to same sex marriage, who has made intelligent and deep arguments against extending marriage to same sex couples has changed his mind and done so in a fashion that I find admirable. Now, I say this while admitting that many of his thoughts are the thoughts that have gone through my own head on my journey from opposition to advocacy (not a short trek), but his explanation is more convincing than anything I ever wrote on the subject.

I had hoped that the gay marriage debate would be mostly about marriage’s relationship to parenthood. But it hasn’t been. Or perhaps it’s fairer to say that I and others have made that argument, and that we have largely failed to persuade. In the mind of today’s public, gay marriage is almost entirely about accepting lesbians and gay men as equal citizens. And to my deep regret, much of the opposition to gay marriage seems to stem, at least in part, from an underlying anti-gay animus. To me, a Southerner by birth whose formative moral experience was the civil rights movement, this fact is profoundly disturbing.

I had also hoped that debating gay marriage might help to lead heterosexual America to a broader and more positive recommitment to marriage as an institution. But it hasn’t happened. With each passing year, we see higher and higher levels of unwed childbearing, nonmarital cohabitation and family fragmentation among heterosexuals. Perhaps some of this can be attributed to the reconceptualization of marriage as a private ordering that is so central to the idea of gay marriage. But either way, if fighting gay marriage was going to help marriage over all, I think we’d have seen some signs of it by now.

Please do read the rest regardless of your opinion on the subject. Even if you end up disagreeing with him on his new position, his thoughts remain lucid and compelling.

Obama Ties Himself to Fast and Furious Scandal


Much more to say about this later, but I have to say one thing right now: I’m shocked that President Obama would assert executive privilege over a set of documents pertaining to the Fast & Furious scandal right now (unless, of course, they implicate the White House in ways that haven’t been clear to this point).  Why shocked? Because his action pushes the scandal to the front pages and it ties his administration to something that they had heretofore managed to distance themselves from.

Obama does not want this to become an election year issue, yet his actions almost assure that it will be an issue. Sen. Grassley has it right:

“How can the president assert executive privilege if there was no White House involvement? How can the president exert executive privilege over documents he’s supposedly never seen? Is something very big being hidden to go to this extreme? The contempt citation is an important procedural mechanism in our system of checks and balances,” he said.

“The questions from Congress go to determining what happened in a disastrous government program for accountability and so that it’s never repeated again,” he said.

This move signals that something is being covered up; if there is nothing to see in those papers, though, why would the President paint himself in such a light? It doesn’t help that Holder has made misleading statements in an attempt to shift some blame to the previous administration— a tactic that the administration continues to use in other situations to explain away their own failures.

In a second major retraction over its version of the the gun-walking scandal, the Justice Department has retracted Attorney General Eric Holder’s charge in a hearing last week that his Bush administration predecessor had been briefed on the affair.

In a memo just released by Sen. Chuck Grassley, the Iowa senator reveals that Holder also didn’t apologize to former Attorney General Michael Mukasey for dragging him into the Fast & Furious scandal that is headed for a major legal clash and likely contempt of Congress charge against Holder.

According to Grassley’s memo, Justice said that Holder “inadvertently” made the charge against Mukasey in a hearing.

That sound you hear is Republicans thanking the President for handing over another powerful campaign issue– and you might also hear the wailing and gnashing of teeth from the left as they realize that this is turning ugly.

If I might echo Vice President Biden for one moment: the Fast & Furious scandal is a big fucking deal.

“Privatize Amtrak”

Compliments SXC.HU

Yes. Yes, indeed.

Okay, let me see if I get this straight. First, a commercial business (Amtrak) is 100 percent owned by the federal government. It means that whatever money it needs to cover its cost that isn’t paid for by selling services to customers, it gets in subsidies from taxpayers. Second, Amtrak is effectively calling for actions by its customers that will indirectly increase the amount you and I will have to pay in subsidies (that’s the 10 percent discount on Amtrak rail fares) and increase lobbying efforts for the company to get more subsidies.

Read the rest.

Celebrate Good Times

Powerline checks in on the health of  Occupy This and That (also known as the Secular Church of the Latter Day Hippie Wannabes). But before checking the patient’s vitals, Powerline gives us something that sounds a bit like a eulogy.

Remember when the Democratic Party saw the Occupy movement as the Left’s equivalent of the Tea Party? That lasted until it became obvious that 1) Occupy wasn’t actually much of a movement, and 2) to the extent it actually existed, it was an embarrassment. Occupy is in the process of fading away, not with a bang but a whimper, and with more criminal prosecutions to its credit than normal citizens converted to the leftist cause.

Die, Big Gulp, Die Die Die

Sea of Soda

I’m not keen on the idea that any government body should take the unusual step of banning a substance like sugary beverages. Further, I think that if we, the people, sit and allow it to happen, we utterly deserve the gradual loss of freedoms that will follow.

Keep in mind that I’ve mocked the occasional Super Big Gulp drinker; I see no realistic reason why any one person should be carrying around a half-gallon of sugar water for casual sipping throughout their day. It isn’t healthy, it isn’t good, it isn’t a particularly good idea.

But that doesn’t make it my business or the government’s, either. No more, in fact, than it’s my business whether any reader out there is munching on Burger King’s latest multi-patty, bacon-rich, cheese and mayo-slathered sandwich. And that BK sandwich is likely even more damaging to your health than the Bucket o’ Jolt.

Beyond any question of the government’s right to govern my food choices so arbitrarily, though, there are pragmatic issues that really bug me.

Obviously, there is the reality that anyone who wants the bucket-sized soda will probably find a way around the ban. Many have noted that folks inclined to suck down that much cola will probably just order more than one, will visit the fountain for refills more often, or will otherwise find ways to fight the power.

But I would like to know what exactly it is that is to be banned. Is it the sugary beverage or is it the cup? If it’s the sugary beverage– that is, the bit that is actually bad for you– then will it be legal to sell the cup for use with things like non-sweetened teas and diet beverages? How about fruit juices? Juices that made from concentrates and water and fortified with high fructose corn syrup are obviously on the naughty list, but what about the unadulterated stuff? It might not be bulging with big, bad corn juice, but it is filled with sugar– sugar that, in significant quantities is still bad for the consumer. Has anyone accounted for the typical load of ice a customer uses in those giant cups? What is the actual volume of soda in there? Will there be special, undercover cops trolling the local Wendy’s in hopes of finding someone filling the giant cups with unapproved liquids?

So perhaps it is better if the cups are banned altogether. Even though the cups have done nothing wrong, even though people could use them for legitimate refreshment purposes, it is simply too easy to get around the ban by using the cups for evil purpose. Not that there aren’t potential loopholes even then; if I were in charge of marketing for any of the companies that sell this stuff, I’d simply re-position my cups as being intended for multiple users. That is, these aren’t Super Big Gulps, they are Family-Sized Big Gulps. It’s a drink for a family of four and each one would come with four straws and a warning label encouraging drinkers to drink responsibly.

One of the perpetual problems with government is that they feel the need to constantly fix our lives. We gave them a podium, they feel smarter and more capable than us, and they are fairly certain that we will never be able to guide ourselves as well as they can guide us. Worse, they know with certainty that they have to have “accomplishments” on their resume if they have any hopes of being hired for that next term of power, good pay, perks, and the opportunity to shift big government contracts to family and friends.

There is a constant struggle between we, the people, and our elected officials. What is so worrisome about this proposed legislation is that it isn’t that surprising to me; many of us have warned against the excesses of the state (and, in particular, about Bloomberg) simply because the trend has been so obvious. If the trajectory to this point is obvious, then what follows is just as obvious. Every encroachment on our freedoms will be for our own good, and there are a lot of people who think that you need to be saved from yourself.

As the good captain said, “I do not hold to that.”

This is a wonderful warning shot, though, and a reminder that the government’s natural inclination is to want to control you; it should be your job to ensure they don’t succeed.


Gimme My Revolution

Here’s an interesting story about convicted terrorist bomber, drug dealer, and perjurer Brett Kimberlin, for those who have been following such things. In essence, it hopes to reclaim the title of Velvet Revolution from the Kimberlin in the universe of Google search results.

Our needs are simple. We seek to drive Brett Kimberlin’s fake Velvet Revolution into third place, or lower, on a Google search for the term. We estimate that we can do this within six months. Eventually we’d like to knock Wikipedia out of the top spot, but all things in their time.

We seek to replace Brett Kimberlin’s fake Velvet Revolution with a fake Velvet Revolution of our own, a Velvet Revolution that tells the truth about Kimberlin and his henchmen, in order that past and potential donors to Kimberlin, such as George Soros, may be fully informed about who is cashing the checks.

 As this seems like a reasonable cause to me, I’m quite happy to do my part.
Here’s to the proprietors of the Original Velvet Revolution and this small good that they are trying to do for the world.