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Posted by: rdbrewer at 03:59 PM | Comments (149)
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Philip Klein at the Washington Examiner interviewed Randy Barnett, "the legal architect behind challenges to the health care law." Barnett says that Congress is unlikely to use the expanded power and that it's lame; it's too flimsy to survive. He points out that a future (conservative) court could use the "built-in tripwires" to fix the expanded tax power.

He continued, “This is big. And it’s only the stinging disappointment of not being able to take down Obamacare that conceals how big this was. Every one of our arguments got accepted by five justices. Every one.”

. . .

Barnett criticized RobertsÂ’ reasoning in upholding the mandate on taxing grounds, but said it was too flimsy to survive as constitutional doctrine.

“It’s lame,” he said. “The reasoning is transparently lame, and that doesn’t hurt, that helps. Transparently lame reasoning doesn’t stand the test of time. What will stand the test of time is everything he had to say about the Commerce Clause and Necessary and Proper Clause, because that was hard-edged. And that had five votes in support of it.”

. . .

“That is an expansion of the use of the tax power beyond where it’s gone before,” Barnett said. “(Roberts) claimed it wasn’t, that’s lame too. It’s an expansion. It’s just an expansion that Congress will not make use of in the near future and a future court can fix and so what’s necessary now is political action to ensure that that’s not a problem.”

He explained, “If we do change the legal culture, even in the slightest, and we do get new justices on the Court, they are not going to have any problem with this precedent on the tax power. It was lame, it was (Roberts’) own opinion, it built in trip wires that could easily be used in the future by a court that cared.

John Yoo at the Wall Street Journal writes about Chief Justice Roberts "and his apologists." Yoo says no federal law is put in jeopardy by this ruling and that it puts in place a road map for the next great federal expansion. He also points out that a future liberal court would simply ignore Roberts' Commerce Clause ruling.

Conservatives are scrambling to salvage something from the decision of their once-great judicial hero. Some hope Sebelius covertly represents a "substantial victory," in the words of conservative columnist George Will.

. . .

The outer limit on the Commerce Clause in Sebelius does not put any other federal law in jeopardy and is undermined by its ruling on the tax power (discussed below). The limits on congressional coercion in the case of Medicaid may apply only because the amount of federal funds at risk in that program's expansion—more than 20% of most state budgets—was so great. If Congress threatens to cut off 5%-10% to force states to obey future federal mandates, will the court strike that down too? Doubtful.

Worse still, Justice Roberts's opinion provides a constitutional road map for architects of the next great expansion of the welfare state. Congress may not be able to directly force us to buy electric cars, eat organic kale, or replace oil heaters with solar panels. But if it enforces the mandates with a financial penalty then suddenly, thanks to Justice Roberts's tortured reasoning in Sebelius, the mandate is transformed into a constitutional exercise of Congress's power to tax.

. . .

Given the advancing age of several of the justices, an Obama second term may see the appointment of up to three new Supreme Court members. A new, solidified liberal majority will easily discard Sebelius's limits on the Commerce Clause and expand the taxing power even further.

Much more at both links.

I think the difference here is that Barnett is arguing best case scenario. He relies a little too much on hope. Too much "if." Too much belief Congress will view the expanded tax power as radioactive. I'm not so sure they will. And when Congress uses the expanded tax power, it'll be small. Just a little here and there. That's all. Hey, no worries, taxpayer. Trust us. But, of course, that will grow and never go away.

Yoo is more practical. Roberts sacrificed too much for political reasons, "a little peace and quiet from attacks during a presidential election year." And I would add cocktail party reasons. Because what can be better than having Laurence Tribe slap you on the back and bathe you in warm admiration in front of everyone at the backyard party just before offering you a second helping of his famous grilled herbed bell peppers?

Both opinions rely on the future composition of the court, and Yoo points out the necessity for the next president to be very careful. Hopefully Mitt Romney has an adviser who sees the importance of avoiding another moderate. Now there has to be another constitutional conservative.

Like I said, too much "if."

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Posted by: rdbrewer at 02:16 PM | Comments (307)
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A derecho. I didn't even know that was a thing.

It's kind of like a circular storm except it's not circular -- it's a long (240 miles+) front of straight-line wind and rain.

There are two known deaths:

One of the multiple trees that crashed into homes in Springfield, Va., killed a 90-year-old woman as she was sleeping in her bed, according to the Associated Press.

A few hours earlier, a falling tree outside of North Middletown, Ky., (located east-northeast of Lexington) killed a man who was attempting to clear some tree limbs off a road.

The storm has left millions without power, on one of the hottest days of the year.

UPDATE [DiT]: Some pretty freaky pics of the storm and damage here, including this one,

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Posted by: Ace at 09:35 AM | Comments (474)
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Laura Ingraham had a great interview with two constitutional scholars last night, Michael Carvin, the attorney who argued the case before the Supreme Court and law professor John Eastman. She started with a quote from Ann Coulter from 2005, "We don't know much about John Roberts. Stealth nominees have never turned out to be a pleasant surprise for conservatives. Never. Not ever." Carvin said that Roberts deliberately ignored the law and called a ball a strike. Eastman said Roberts should resign. From Mediate's report:

Ingraham asked her guests if conservatives are right to feel “mortified” about Roberts being a turncoat. Michael Carvin, a constitutional lawyer opposed to Obamacare who argued before the Supreme Court on this case, boiled Roberts’ decision down to “What Congress did… was unconstitutional, so I’m gonna pretend they did something different and make it constitutional.” He credited Roberts for being “a terrific lawyer who understands the rule of law,” but admitted that unlike Coulter, he did not see a ruling like this coming.

Law professor John Eastman also found the ruling somewhat questionable, stating that the role of the Supreme Court is to tell Congress whether they have or donÂ’t have the authority to do something. And for Roberts to do what he did and find and alternative way to keep it constitutional, Eastman concluded that the chief justice needs to resign.

At the Weekly Standard, Jay Cost makes the case for John Roberts, saying that there is a counterintuitive case to be made that Roberts' decision is a victory for conservatives.

This points to the gravest danger of Obamacare. Much like the progressives of the 1910s, the New Dealers of the 1930s, and the liberals of the 1960s, Obama and his allies assured us that this law was entirely consistent with what had been offered in the past. Nothing new to see here; move along! But that was not at all true. In fact, Obamacare represents the single greatest qualitative expansion of federal power in 80 years.

But, in a subtle way, Chief Justice Roberts did away with much of that. Where he could justify Obamacare on existing federal authority, like the taxing power, he let it stand. Though his factual argument here was admittedly strained, his legal reasoning seems to have created no qualitative expansion of the federal taxing power, which is very broad to begin with (and has been for centuries). But where there was no extant power to back up the bill, he struck it down. In so doing, Roberts actually secured two, hugely important consitutional victories (if not policy ones) for conservatives. He lmited the scope of the Commerce Clause in a meaningful way, spoiling the liberal hope that it confers upon the Congress a general police power. He also won a significant victory for supporters of our dual sovereignty system; by striking down portions of the Medicaid expansion, he sent a clear message that there are limits to how the federal government can use money to boss the states around. These are two enormous triumphs in the century-long war over the principle that the Constitution forbids unlimited federal power.

Cost goes on to point out that there are many who are made worse off by the bill, including "seniors who lose their Medicare Advantage, employees who get dropped from their employersÂ’ plans, families who will see their premiums increase, businesses that have to endure the employer mandate, the taxpayers who have to foot the bill for the whole thing." In other words, the bill is politically unpalatable, and, in Cost's opinion, conservatives can more easily deal with policy problems at the ballot box than they can stealth the constitutional innovations.

It just seems that Roberts could have done both while siding with the four who dissented. Roberts needed no "political space," in my opinion. He could have just done his job. But heaven forbid we inflame the hard left--the same people who would never expect the liberals on the court to side with the constitutional conservatives in order to protect the integrity of the court.

Video of the Ingraham interview below the fold. more...

Posted by: rdbrewer at 08:03 AM | Comments (394)
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OK, so I didn't have time to put together a chess thread for tonight, so there's not going to be one. I know that this will come as a huge disappointment to thousands of you, but there you are.

So, this is an open thread. Zero content.

And since this is a non-chess open thread, talking about chess is strictly forbidden. 'Chest' jokes are OK, though. God knows we don't get enough of those on the chess threads.

Also, longbows.

Beneath the fold you will see how many times Michael Moore has seen his feet since 1993. more...

Posted by: Open Blogger at 07:23 AM | Comments (119)
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Still tax-free.

Posted by: andy at 03:24 AM | Comments (338)
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CDR-M's Apple IIe finally crapped out tonight. So you're going to have to settle for this.*

No, Conservatives Did Not Win Anything In The Obamacare Decision

DrewM's write-up at his website made HotAir's Quotes of the Day.

What did Roberts get? Institutional respect for the Court from people who have no respect for the Courts unless they win? That’s not a prize one can count on to last long. If you think liberals we say, “we’ll let it slide next time we lose a 5-4 decision and promise to never again push the boundaries of the Commerce Clause because Roberts gave us ObamaCare” you’ve missed the last 80 or 90 years of liberalism and the courts. Maybe I missed something but the New Deal and Warren courts* were happy to overturn decades and decades of law and never felt the need to “throw a bone” to conservatives (or people who thought the words of the Constitution had some set meanings).

In fact, Roberts has actually lost something very important (if this theory is right)Â…heÂ’s shown that with enough bullying and threats against the legitimacy of his Court, heÂ’ll give in.

Posted by: Open Blogger at 06:00 PM | Comments (718)
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Obama's handling on health care, per Newsweek:
37% approve, 58% disapprove (44% strongly disapprove).

Approve/Disapprove of Supreme Court Ruling?
Approve 45%
Disapprove 50%

Who should run Congress?
Republicans 38%
Democrats 36%

President?
Obama 47%
Romney 44%

Do you think Barack Obama has done his job well enough to deserve re-election, or is it time to replace him with somebody else?
He has 42%
Time to replace 48%

Does the Supreme Court's decision make you more or less likely to vote for Mitt Romney for President, or does it not impact your opinion?
More likely 32%
Less likely 11%
Not Sure 7%
No Impact 50%

Does the Supreme Court's decision make you more or less likely to vote for Barack Obama for re-election, or does it not impact your opinion?
More likely 14%
Less Likely 29%
Not Sure 5%
No Impact 51%

Generally speaking, do you think the Supreme Court's decision will make our country better off, worse off, or will it not be impacted?
Better off 24%
Worse off 47%
No impact 14%
Not Sure 14%

This poll was conducted immediately after the announcement. Breaks down D+2, ideology 24% liberal 46% moderate 30% conservative.

Not exactly what a lot of political experts would have enjoyed, I think. The nation still disapproves of Obamacare, and calling it, more appropriately, ObamaTax would be effective. The court decision seems to have influenced voter opinions in favor of Romney, though I still suspect the President will enjoy an approval bounce out of this. How long that lasts will depend on Friday's jobs report.

Posted by: CAC at 02:54 PM | Comments (178)
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I guess maybe this is a tax too.

“We just learned that ATF senior management placed two of the main whistleblowers who have testified before Congress about Fast and Furious under the supervision of someone who vowed to retaliate against them,” they wrote before describing how senior political figures have made dangerous threats before.

Grassley and Issa said that in early 2011, right around the time Grassley first made public the whistleblowers’ allegations about Fast and Furious, Scot Thomasson – then the chief of the ATF’s Public Affairs Division – said, according to an eyewitness account: “We need to get whatever dirt we can on these guys [the whistleblowers] and take them down.”

Thomasson also allegedly said that: “All these whistleblowers have axes to grind. ATF needs to f—k these guys.”

Issa and Grassley want to know if Thomasson has been admonished. But that's probably executive privilege information, too.

From JammieWearingFool. He's got a story about Democrats donating to cover the costs of Obama events-- anonymously.

The details that Issa put into the Congressional Record can be found
here.

Posted by: Ace at 03:55 PM | Comments (284)
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Pretty brutal.

They also note the New York Times report that Claire McCaskill lobbied the White House to not hold the Democratic National Convention in St. Louis.

That's right -- she lobbied the organization to not spend millions in her state. Why? Because it would be bad for her, politically.

So Missouri? No millions of dollars of out-of-state money for you. It would be coin in your pocket, but Claire McCaskill would find it politically awkward, so. You lose.

Wow, you guys who live in non-Blue States? Your local media is like Bizarro Earth to me! It's incredible -- they actually say unhelpful things about Democrats!

Here's the link, also embedded below.

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Posted by: Ace at 12:59 PM | Comments (420)
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