The coblogs, particularly @drewmtips and @rdbrewer4, are quoting the transcripts of today's hearing in emails. Seems worth a post.

[DrewM, commenting, then quoting:] Alito... really destroys the whole "we have to do this because of free riders"/non participation is participation argument. The fact is, they are creating free, well subsidized, riders....

JUSTICE ALITO: But isn't that a very small part of what the mandate is doing? You can correct me if these figures are wrong, but it appears to me that the CBO has estimated that the average premium for a single insurance policy in the non-group market would be roughly $5,800 in -- in 2016.

Respondents -- the economists have supported -- the Respondents estimate that a young, healthy individual targeted by the mandate on average consumes about $854 in health services each year. So the mandate is forcing these people to provide a huge subsidy to the insurance companies for other purposes that the act wishes to serve, but isn't -- if those figures are right, isn't it the case that what this mandate is really doing is not requiring the people who are subject to it to pay for the services that they are going to consume? It is requiring them to subsidize services that will be received by somebody else.

rd, from page 103:

Page 103:

JUSTICE KENNEDY: And the government tells us that's because the insurance market is unique. And in the next case, it'll say the next market is unique.

I don't like this next part: He seems to concede that here, the market really is unique (and hence would be a pretext to permit the "regulation," if he so chose). If I follow him correctly.

But I think it is true that if most questions in life are matters of degree, in the insurance and health care world, both markets -- stipulate two markets -- the young person who is uninsured is uniquely proximately very close to affecting the rates of insurance and the costs of providing medical care in a way that is not true in other industries.

That's my concern in the case.

rd, from pages 4-6:

USTICE KENNEDY: Can you create commerce in order to regulate it?

GENERAL VERRILLI: That's not what's going on here, Justice Kennedy, and we are not seeking to defend the law on that basis.

In this case, the -- what is being regulated is the method of financing health, the purchase of health care. That itself is economic activity with substantial effects on interstate commerce. And --

JUSTICE SCALIA: Any self purchasing? Anything I -- you know if I'm in any market at all, my failure to purchase something in that market subjects me to regulation.

GENERAL VERRILLI: No. That's not our position at all, Justice Scalia. In the health care market, the health care market is characterized by the fact that aside from the few groups that Congress chose to exempt from the minimum coverage requirement -- those who for religious reasons don't participate, those who are incarcerated, Indian tribes -- virtually everybody else is either in that market or will be in that market, and the distinguishing feature of that is that they cannot, people cannot generally control when they enter that market or what they need when they enter that market.

CHIEF JUSTICE ROBERTS: Well, the same, it seems to me, would be true say for the market in emergency services: police, fire, ambulance, roadside assistance, whatever. You don't know when you're going to need it; you're not sure that you will. But the same is true for health care. You don't know if you're going to need a heart transplant or if you ever will. So there is a market there. To -- in some extent, we all participate in it.

So can the government require you to buy a cell phone because that would facilitate responding when you need emergency services? You can just dial 911 no matter where you are?

GENERAL VERRILLI: No, Mr. Chief Justice. [We] think that's different. It's -- We -- I don't think we think of that as a market. This is a market.

rd rounds up some more quotes by Kennedy, since he was (at least before today) considered a swing vote. He seems highly skeptical of the Government's assertion it can do almost anything as long as it's arguably For the Children (TM) and "affects" interstate commerce.

PP 4-5: Can you create commerce in order to regulate it?

PP 11-12: Could you help -- help me with this. Assume for the moment -- you may disagree. Assume for the moment that this is unprecedented, this is a step beyond what our cases have allowed, the affirmative duty to act to go into commerce. If that is so, do you not have a heavy burden of justification?
I understand that we must presume laws are constitutional, but, even so, when you are changing the relation of the individual to the government in this, what we can stipulate is, I think, a unique way, do younot have a heavy burden of justification to show authorization under the Constitution?

P 16: Well, then your question is whether or not there are any limits on the Commerce Clause. Can you identify for us some limits on the Commerce Clause?

PP 16-17: But why not? If Congress -- if Congress says that the interstate commerce is affected, isn't, according to your view, that the end of the analysis.

P 24: I'm not sure which way it cuts. If the Congress has alternate means, let's assume it can use the tax power to raise revenue and to just have a national health service, single payer. How does that factor into our analysis? In the one sense, it can be argued that this is what the government is doing; it ought to be honest about the power that it's using and use the correct power. On the other hand, it means that since the Court can do it anyway -- Congress can do it anyway, we give a certain amount of latitude. I'm not sure which the way the argument goes.

P 30: But the reason, the reason this is concerning, is because it requires the individual to do an affirmative act. In the law of torts our tradition, our law, has been that you don't have the duty to rescue someone if that person is in danger. The blind man is walking in front of a car and you do not have a duty to stop him absent some relation between you. And there is some severe moral criticisms of that rule, but that's generally the rule.

And here the government is saying that the Federal Government has a duty to tell the individual citizen that it must act, and that is different from what we have in previous cases and that changes the relationship of the Federal Government to the individual in the very fundamental way.

To be honest, Kennedy seems a lot more equivocal than liberal commentators imagined. A lot of his statements (like the one from page 24, above) are very on the fence.

The goal of the government in this sort of case is to get a limited blessing for exactly what you've done, with some kind of suggested rule suggesting what you did here was different from other hypothetical cases. You don't want, or need, some Major Sweeping Opinion blessing all hypothetical exercises of government power. You want to offer the justices a justification for saying "This one thing is okay, other things probably aren't." So in that way you give the justice a fig leaf, a fig leaf to convince himself he's not just blessing any assertion of government power willy-nilly.

My fear here, a little heightened by Kennedy's remarks, is that he's amenable to just such a pitch.

Open Minded? In the last few minutes, Allah's put up a post seizing upon the same quotes, also seeing the Weather Vane Spinning in the wind.

You have to understand justices-- they want to make small waves. They want to rule on the smallest grounds possible, creating the least new law going forward.

They will not go (generally) for something that they perceive as "fundamentally altering the relationship between citizen and government."

Nor do they easily knock down a law passed by Congress, signed by a president.

So if you offer them a middle ground, or something disguised to look like a middle ground, they just might go for it. Pitch them the idea that this is unique and limited to this one single area of activity and hence will not provide precedent or justification for further expansions of power, but will remain limited to just this one little thing.

Pitch them that, and a Weather Vane might spin your way.

We're not asking you to eat the whole of the Forbidden Fruit. Of course you'd be aghast at such a suggestion. We're just saying-- take a little nibble. Just a small little nibble, and then, cross our hearts, we'll put the Forbidden Fruit away and won't touch it ever again.

It's just a little nibble. What could it hurt?
more...

Posted by: Ace at 12:02 PM | Comments (268)
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"This law looks like it's going to be struck down. This law is in grave, grave trouble."

Wow. This was apparently a very bad day for ObamaCare.

According to Toobin's interpretation, there's less hope for the Administration that Alito will uphold the law. The only conservative member he thinks is in play is Chief Justice Roberts, who grilled both sides equally.

He thinks the betting has now shifted -- it is more likely than not the individual mandate will be struck down.

This is now the second account that says Our Lawyer (Paul Clement) was outstanding, and the Administration lawyer (U.S. Solicitor Donald Verrilli) was unprepared and unable to answer the conservative justices' questions.

(In a way I think that is actually a tea leaf in the opposite direction, because that will tend to make the Administration's arguments seem weaker than they actually are -- there are still written briefs, and legal clerks will provide their own arguments, probably stronger than Verrilli managed. A major, major case isn't going to be decided on which lawyer kinda sucked.)

Via Conservative Commune, which has a precious quote from David Pfouffle declaring ObamaCare will be upheld.

And conservatives will "rue the day" -- no, he says that. Who talks like that? (Where?)

Also via Hot Air, with some more.

One quote from The Hill, summing it up:

Verrilli argued that the mandate does not force people to participate in commerce, because everyone will eventually use the healthcare services that insurance covers.

But the courtÂ’s conservative bloc, including Justice Antonin Scalia, challenged that framework.

“The federal government is not supposed to be a government that has all the power,” Scalia said while questioning Verrilli.

Kennedy's position is that this law changes the relationship between citizen and government "in a very fundamental way," and insists then it would need a very serious justification to remain standing. There's a lot of wiggle room there -- one could imagine him deciding that, in the case of health care, that justification is in fact present.

That's actually kind of a bad thing for Team Death to ObamaCare, because the temptation here, for a conservative-leaning justice, will be to uphold the law, and then declare that no further mischief should follow from this ruling, because only ObamaCare and a few possible hypothetical cases in the far future will ever be enough to justify this "fundamental" change in the relationship between citizen and government."

That's always how these sorts of cases are upheld, when they are upheld-- the court blesses the particular assertion of power, but then contents itself to write dicta (nonbinding language) suggesting Thusfar and no farther. The particular law is upheld, with brackets thrown around it.

That's a "compromise" sort of decision which isn't really a compromise at all. The government, in such cases, plainly wins, but with some non-binding guidance that "You'd better not come back to us with a case like this in a good long time," which means, in practical effect, like eight to ten years.

So, this is premature, but it's still a Good Day. One could have imagined many worse days.

More: It's a Tax, It's Not a Tax. It's Complicated. You Wouldn't Understand. Conservatives grill Verrilli on whether it's a tax or not.

You have to just read the exchange. I would quote it, but I'd wind up stealing the whole thing. It's really good, and it demonstrates what everyone's talking about when they say Verrilli had a very bad stumblef*ck of a day.

added:

On that exchanger about the tax a lot of the justices went into open laughter. Imus played an audio of that this morning. -- Vic

Thanks to Miss80sBaby.

Posted by: Ace at 10:16 AM | Comments (518)
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We know for a fact the Medieval Warm Period was warm. We know this because people wrote down in journals, "Gee, it's really warm."

We also know from things like agricultural records it was warm. England supported a wine industry for the first time in its history, and Greenland actually produced crops. And there were bountiful crops for several hundred years, which we know because people wrote things like, "Gee, we have such bountiful crops that the prices have fallen through the floor. And boy is it ever so warm."

Based on that stuff, we know the Medieval Warm Period was warmer than it is today, and without heavy industry or cars, or petroleum burning, or even much of a world population, so that means it was a natural variation.

This presented a problem for the Global Warming Cultists, who wished to say that the earth had never (or at least through recent human history) ever ever been warmer than it is today.

And yet it was firmly established by historical records that it was quite warm.

This didn't bother the Global Warming Cultists much, though. Determined to make the current age the warmest ever, they simply asserted, without any evidence, that while Europe was indeed warm, the rest of the world was not, and in fact was off-settingly cooler, and thus, on average, the worldwide average temperature during this period was lower than it is today.

Thus, with an asterisk and a footnote reading Because we said so, the Medieval Warm Period was written out of the records. Not until the late 80s-90s had it ever been suggested that the Medieval Warm Period was anything less than positively balmy, much warmer than today, but suddenly with no evidence, upon the mere assertion of the Global Warming Cultists, it was asserted it had never happened. Not really. Not the world over, at least.

Via Poor Richard's News, a new study asserts "No, it was warmer then, and the world over besides, just like we had always thought before the hockey stick graph."

A team of scientists led by geochemist Zunli Lu from Syracuse University in New York state, has found that contrary to the ‘consensus’, the ‘Medieval Warm Period’ approximately 500 to 1,000 years ago wasn’t just confined to Europe.

In fact, it extended all the way down to Antarctica – which means that the Earth has already experience global warming without the aid of human CO2 emissions.

An icy limestone crystal called "ikalite" traps evidence of past temperatures by freezing in forms of oxygen which vary with temperature.

The scientists studied ikaite crystals from sediment cores drilled off the coast of Antarctica. The sediment layers were deposited over 2,000 years.

Did the crystals signal a warm period in Antarctica during the Medieval Warm Period? They did.

They were able to deduce this by studying the amount of heavy oxygen isotopes found in the crystals.

During cool periods there are lots, during warm periods there arenÂ’t.

The Global Warming Cultists reacted as scientists are supposed to react to exciting new scientific evidence.

Posted by: Ace at 09:45 AM | Comments (173)
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Via Hot Air, SCOTUSblog finds that the questions continue to be tougher for ObamaCare's supporters.

Based on the questions posed to Paul Clement, the lead attorney for the state challengers to the individual mandate, it appears that the mandate is in trouble. It is not clear whether it will be struck down, but the questions that the conservative Justices posed to Clement were not nearly as pressing as the ones they asked to Solicitor General Verrilli....

Perhaps the most interesting point to emerge so far is that Justice KennedyÂ’s questions suggest that he believes that the mandate has profound implications for individual liberty: he asked multiple times whether the mandate fundamentally changes the relationship between the government and individuals, so that it must surpass a special burden.

Well Kennedy did have all that Liberty, Sweet Liberty dicta in the Texas Sodomy case, so maybe he's leaning that way.

The blogger finds that Alito and Roberts are less committed than the "conservatives" (I assume this is Scalia, Thomas, and, oddly, Kennedy). He holds out hope for either Alito or Roberts joining the liberals to uphold ObamaCare.

Posted by: Ace at 08:42 AM | Comments (227)
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But remember that weirdo, boring, way-too-young Republican who is running to unseat Sherrod Brown in Ohio?

Psst...he's tied in a poll coming out from Rasmussen, (updated) 43% to 43%, in a D+3 poll.

Republicans already lead in enough states to flip the Senate with one to spare.
If the Ohio race has become a toss-up, the national scene is shifting from a desperate attempt by Democrats to stop losing control of the Senate...to a very desperate attempt by them to stop Ebola 2: Election Bugaloo.

Extra Goodness: Public Policy Polling (D/DailyKos/SEIU/SuperEvilLiberalPollstersWithDeadOnFinalPollAccuracy) finds Bob Kerrey's pathetic attempt at trying to hold Nebraska for the Democrats a totally lost cause, with him trailing every Republican by double digits and drowning under a 51% disapproval rating. Nebraska is done. +1 R on the board for those playing along at home.

Posted by: CAC at 08:14 AM | Comments (136)
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RIP.
I disagreed with most of his critiques but understood his bitterness as a reaction to what he saw as the "destruction" of high art:

If there is something appealing in the very openness of this postmodernist art scene, there is also something dismaying in it, too. For it reminds us that ours is now a culture without a focus or a center...Perhaps we know too much about art to believe in the absolute efficacy of any single style or tradition. Are we condemned, then, in the art of the [he says '"the 1980s" here, but it applies well and full now], to remain in a perpetual whirl of countervailing and contradictory styles and attitudes? I think we probably are. This eager embrace of art of every persuasion seems to suit us. It satisfies our hearty new appetite for aesthetic experience while requiring nothing from us in the way of commitment or belief.

Posted by: CAC at 07:11 AM | Comments (91)
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Courtesy of the House Progressive Caucus we get a sneak peek at what that sweet, sweet "flexibility" would look like in a second Obama term.

The Congressional Progressive Caucus said the taxes are necessary to fund $2.9 trillion in new stimulus spending to “put Americans back to work” and “rebuild the middle classes” while reducing the deficit. This new spending includes canceling the cuts in last August’s debt-ceiling deal between Congress and the White House.

The CPC budget will be offered as an amendment this week to the House GOP budget for 2013, which contains $2 trillion less in revenue than Obama has proposed over 10 years.

Liberals get $897 billion in tax revenue from imposing an energy tax on carbon fuels, and $849 billion from taxing Wall Street trades. Another $319 comes from a millionaires surtax. The CPC budget also ends Bush-era tax rates for the wealthy.

But wait! There's More!

These Democrats would also raise income taxes on the broad middle. The CPC plan would “allow the 28% and 25% brackets to sunset once the economy is on solid footing, in 2017 and 2019, respectively.” That means higher taxes on families making over $70,000 a year — a big, fat, middle-class tax hike.

Of course that's the dirty little "secret" of Obama's first term. All that spending and the new health insurance entitlement was going to create a deficit and debt crisis that would give Democrats the lever to try and force massive tax hikes on the middle class, not just the evil, evil "rich".

The "Progressive Caucus" is the most liberal of the liberals in the House and they'll never get their way but we should absolutely be tarring the entire Democratic party with this nonsense. If we had an actual media in this country and not simply the propaganda arm of the Democratic Party, Obama and every Democrat in the Senate should be force to take a stand on this proposal. Either make them own it or disavow their base. But "wedge issues" only get covered if they hurt the GOP.

Posted by: DrewM at 06:37 AM | Comments (203)
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Classic misdirection. You were paying attention to the left hand proclaiming a GOP War on Women and ginning up a lynch mob in Florida while the other left hand was quietly going about its business.

The Environmental Protection Agency will issue the first limits on greenhouse gas emissions from new power plants as early as Tuesday, according to several people briefed on the proposal. The move could end the construction of conventional coal-fired facilities in the United States.

The proposed rule — years in the making and approved by the White House after months of review — will require any new power plant to emit no more than 1,000 pounds of carbon dioxide per megawatt of electricity produced. The average U.S. natural gas plant, which emits 800 to 850 pounds of CO2 per megawatt, meets that standard; coal plants emit an average of 1,768 pounds of carbon dioxide per megawatt.

All in pursuit of solving a fake "crisis" ginned up by the neo-Malthusian left using faulty computer models. Wonderful. more...

Posted by: andy at 03:42 AM | Comments (368)
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Happy Tuesday.

Today is the second day of Supreme Court argument in the Obamacare litigation. Yesterday, they spent 89 minutes on whether the individual mandate penalty is a tax. Today's 2-hour topic will be the individual mandate itself, specifically whether it is authorized by the Commerce Clause, the Necessary and Proper Clause, or the Tax Clause.

I'll be at the RNC for most of the day at the "Blogger Row" they're doing for the Obamacare anniversary and the Supreme Court argument. Members of Congress, RNC Leaders, and surrogates will be coming by and if there are protests at the high court again, I'll wander over there to get some photos. Look for updates here at the HQ and at @gabrielmalor.

Posted by: Gabriel Malor at 02:55 AM | Comments (91)
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Heh: The California To Texas Translation Guide

Via Doug Ross comes this handy guide for Californies who have Gone To Texas and are having a hard time communicating with the locals. It also works pretty well for any non-blue state.

I wonder if there's a browser plugin you can get that will automatically translate MSM-speak for you as well.

Posted by: Maetenloch at 06:07 PM | Comments (764)
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