Some ruminations from Carrie Severino at NRO.

She reminds me of something I'd completely forgotten. While we're all taking about the Mandate, the court also entertained the question of whether or not the federal government could force states to expand Medicaid, by taking all Medicaid funding away if the states did not comply.

Here is the crux of the question: The federal government does a lot of things the Constitution doesn't grant it power to do. It does so through the fiction of "state-federal partnership." The federal government can't do it, but the state can, so a "state-federal partnership" is created, permitting federal governments to act in ways they could not otherwise act.

Now, if this is not a partnership at all -- if the government can simply dictate to the states what they shall or shall not due, with the threat of withholding large amounts of federal money (collected from state citizens -- doesn't this expose the "partnership" for what it is, an end-run, a dodge, a pretext to hide an unconstitutional exertion of federal power?

Shouldn't that fail, too?

Severino considers this a "thorny" question, and suggests that the Court will avoid it by simply saying the entire law must fall due to the mandate.

Question dodged. And the courts do enjoy dodging questions.

More tea leaves at Hot Air.

I think we all are pretty sure that Roberts will write an opinion, and Ginsberg will write the other opinion. What we don't know is who's writing for the minority, and who's writing the actual holding.

I argued with this with Drew. If Kennedy has flipped to the liberals, he might permit Ginsberg to write the majority holding. Perhaps he is a Faint-Heart who thinks liberals will be mad at him, and so will vote with them, but doesn't really believe in that vote all that much, and so will let Ginsberg write it.

But the Hot Air post reminds that Kennedy is fairly conservative as far as federalism, so: Even if he cast his vote with the liberals, he'd likely want to write the majority opinion to limit it. Even if he sided with the liberals, he wouldn't want to sign over carte-blanche for more of this nonsense. He'd want to say "health care is unique, and don't go trying anything else along these lines."

Then again, I suppose that Ginsberg could agree with such an opinion, if it means she gets to deliver President Precious his Big Win.

But I would say -- my guess -- is that it's probably 5-4 to overturn, with Roberts in the majority, Ginsberg in the minority.

I can't help but keep thinking that when Ginsberg talked about this case a few weeks ago, she said the issue was whether the mandate could be severed. She did not say the issue was whether or not the federal government could impose mandates as it liked, with no Constitutional authority save the much-abused Commerce Clause.

I can't help thinking that the mandate itself is actually being overturned by not five votes but by more than five votes, and that the real controversy will be about severability. I still remember Breyer becoming flustered when he realized that there really was no limiting principle, if the government's lawyers' arguments were accepted. I remember him suddenly realizing -- sort of embarrassed -- that yeah, the government could force you to eat broccoli, if its theory -- health care is unique; the commerce clause gives the government power to regulate your health, etc. -- carries the day.

Is it possible we'll see 7-2 against the mandate, and then 5-4 striking the whole law down?

Was Ginsberg deliberately misleading us? Why would she do that? If she says the heart of the question is severability, then the heart of the question is not whether the mandate is constitutional. If the question is severability, the constitutionality of the mandate has already been answered, in the negative.

Meanwhile, at the Volokh Conspiracy, Ilya Somin is taking a victory lap, and throwing praise at the lawyers who advanced the suit from "crazy fringe argument" to "likely law of the land." He's not making predictions -- well, he says it's a 50/50 proposition, if you can call that a prediction -- but is noting all the work that went into making this very nearly Constitutional law going forward.

Of course, we'll see tomorrow.

Posted by: Ace at 01:30 PM | Comments (322)
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This isn't just a diet story. This is a Narrative Story, a Media Story, and a Corruption of Science Story.

For something like 60 years, it was generally accepted in medicine that carbohydrates caused you to gain weight. That's why grandmothers and mothers would tell you that bread and pasta were fattening.

Then sometime in the sixties (IIRC) someone proposed the fat theory. It's fat intake that makes you fat, and carbohydrates are okay, the theory went.

With almost no science whatsoever to back it, the carbohydrate theory was discarded and the fat theory elevated to Official Medical Science.

As I've noted before, this looks an awful lot like global warming "science." For 100 years, it was uncontroversial that the Medieval Warm Period was very warm indeed. There were lots of data to back it up -- historical records and merchants account books noting that crops were beyond bumper sized, and the prices for basic foodstuffs plunged. (I think this Warm Period also had an enormous historical consequence -- it sparked off the Renaissance, because fewer farmers were needed and the sons of farmers went to cities to become artisans and tradesmen, expanding the pool of people working in what could be termed the Medieval Tech Sector.)

England began producing wine on a commercial level. Wheat was grown in Greenland.

Then, in the mid-eighties, based on a meta-analysis of data which has been proven to be fatally flawed, it was decided, almost overnight, the Medieval Warm Period never existed. Sure, it existed in Europe, where the historical records were ample and incontrovertible; but it was postulated that the rest of the world (were no good records survived) must have been very very cold, to offset Europe's warmth.

And thus the Medieval Warm Period vanished.

Now Michael Mann's flawed "hockey stick" is never cited anymore by the global warmists. They know they can't cite it. They know it will almost always produce a hockey-stick pattern, no matter what data are fed into it; the algorithm is strongly biased to produce a hockety-stick pattern, even if you punch in random data ("red noise").

But even though the Rosetta Stone of their theory was proven to be fraudulent (or, at least, completely wrong), they kept the conclusions it produced, and just began scrambling for other proofs.

Almost overnight, one boring, conventional, non-sexy, non-exciting theory -- a theory which would not produce exciting, sexy new research, but which did have a mountain of evidence supporting it -- was displaced in favor of an exciting, sexy, unconventional, paradigm-shifting one, one which would produce all sorts of sexy scientific novelties but which sadly had little or no evidence to support it.

This can only happen in areas of science which aren't well understood. Only when you're grasping at shadows can the hint of a shadow suddenly excite the scientific community so much that they lose all scientific restraint and giddily rush to embrace Large Conclusions built upon Tiny Evidence.

Human metabolism -- the science of overweight -- is one such area. It would seem like this should be the easiest question in the world to answer; we can run tests all on human beings all the do-dah day and determine the answer conclusively.

But, for various reasons (like the fact that people aren't lab rats, and you can't keep them in cages for a year at a time, and when they go home, they cheat on their diet) the subject eludes a truly dispositive proof.

The science of paleoclimatology is even more resistant to dispositive proofs. After all, people only began rigorously measuring and recording temperatures in the 1880s. Anything before that must be based not on direct measurement but proxies (tree rings, ice cores).

In both cases, the evidence was sketchy, and current theories not rigorously, beyond-all-doubt proven. Which, given the nature of the things, was understandable -- we'll never actually know what the average daytime temperature was in North America on June 26th, 2012 B.C., the way we know the average daytime temperature in North America on June 26th, 2012 AD.

When evidence and data are thin, Narrative and Theory rushes in to take their place. Nature abhors a vacuum, and so too does natural science. Science -- or, I should say, scientists, human beings with human flaws which science isn't actually burdened with -- do not like saying "I don't know." Even when "I don't know" is actually the proper, most scientifically-valid answer.

"I know" is much more satisfying. The funny thing is that we only hear "the science is settled" in the precise cases where it's not settled. No one ever says "the science is settled" as to whether the earth revolves around the sun. It is settled, of course; so no one has to attempt the Appeal to Authority to establish it.

A growing consensus says they know, you know.

So, for 50 years now, the medical establishment and the government have been telling fat people to do the exact opposite thing they should be doing.

They've been telling them to replace fat with carbohydrates. Be healthy -- hey, have eight ounces of orange juice every morning (and ignore the fact that eight ounces of orange juice has just as much sugar as eight ounces of Coca-Cola).

And yet the fat get fatter. But then, the fat are being put on a diet which is inadvertently designed to do just that, make them fatter.

So by all means let's create a new government agency to tell fat people how to make themselves even fatter. And let's all pay for that.

And, though it's not yet suggested, you know this would come within a couple of years -- let's use coercive government force to compel fat people to follow a diet which will make them even fatter.

It's for their own good, you know. And we're from The Government, so we know we're right. And we're so sure we're right, we'll use all of our powers to force you to do what we say.

Even though we're completely wrong.

Posted by: Ace at 11:23 AM | Comments (561)
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You don't come after Patterico with sockpuppets.

If he'd've asked Gleen Grenwald, he'd know that.

By the way, did you know that Instapundit had now joined the massive conspiracy to threaten Brett Kimberlin? According to Exhibit E in Brett Kimberlin's bazillionth court filing, it's true.

It's so threatening.

Posted by: Ace at 10:46 AM | Comments (152)
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Illegal voters, Democrats and Eric Holder hit hardest.

Judge Hinkle was not an unreserved supporter of the Florida program, but he rejected the legal basis for the DOJ challenge. The National Voter Registration Act specifies a 90-day “safe window” before elections, in which voter registration cannot be changed by the state, but Hinkle found that this provision “did not apply to removing non-citizens from the rolls.”

He went on to say that “Determining citizenship is not as easy as the state would have it. Questioning someone’s citizenship isn’t as trivial as the state would have it.”

The DoJ may still prevail and preserve voting "rights" for ineligible voters but it's clearly not the slam-dunk bit of lawless racism they tried to make it out to be.

Speaking of the disgraced Attorney General: Tomorrow's contempt vote will be bi-partisan. The MSM says bi-partisan is good so clearly they will cheer this vote.

Posted by: DrewM at 09:52 AM | Comments (261)
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Stockton, California...busted.

The budget for the fiscal year beginning July 1 calls for defaulting on $10.2 million in debt payments and cutting $11.2 million in employee pay and benefits under union contracts that could be voided by the bankruptcy court. The city of 292,000 may file its petition as soon as today.

...

The city has cut services so much the last two years that “public safety is at a crisis level,” officials said in a June 5 fiscal report. Unemployment, at 15.4 percent in April, was almost double the national average according to the U.S. Department of Labor.

Stockton ranked third in murders last year among large California cities, behind Los Angeles and Oakland, according to FBI data.

The collapse of the housing market left Stockton to contend with mounting retiree health-care costs and eroding tax dollars in the wake of the recession, amid accounting errors that overstated municipal revenues. One in every 195 homes in StocktonÂ’s metropolitan area received a foreclosure filing in May, the fifth-highest rate in the U.S., according to RealtyTrac Inc.

If it's any consolation to Stockton, they probably won't be the biggest municipality to file for bankruptcy for long.

I bet the bondholders, workers, retirees and residents wish they had gotten their own Chris Christie or Scott Walker a few years back. Lower pay and benefits > no pay and benefits.

Posted by: DrewM at 08:32 AM | Comments (352)
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Gabe had this in the headline's post this morning and linked The RightSphere's take down of it but now the story is going wider (via MSNBC naturally) so it deserves a bigger spot.

First, here's the piece and The RightSphere's destruction of it.

Basically Zeeke Miller rehashes a very old story....Jeff Flake opposed sanctions against the then South African Apartheid regime.

TRS points out Flake's reason for doing this is that sanctions would have hurt blacks in South Africa more than it would have helped. You can debate either side of that argument but it's a legitimate position.

Miller's story however doesn't credit that there might be a respectable basis for Flake's opposition to sanctions. Instead he morphs Flake's support for an anti-sanctions resolution, while a lobbyist for a mining company,into support for the noxious South African regime.

Here's the part of the resolution Miller quotes.

“As an ally of the United States, South Africa is a major source to the free world of vital minerals such as manganese, cobalt, platinum, gold etc.”

“Without a dependable and economic source of these minerals, many industries in the United States and the free world would be severely impacted and the cost of these manufactured items is greatly increased.”

“Whereas, economic sanctions would have had a more direct impact on the black community,”

“Whereas, the black population suffers from the present violent and depressed economy,”

“Notify the elected leaders and all the citizens of South Africa that we welcome them as friends and allies in the war against poverty and racial injustice.”

Where's the part that expressed, "support for the government of South Africa while racial segregation laws were enforced" as Miller put it? Is it the word "allies"? There's no doubt that South Africa was an "ally" of sorts at the time. That doesn't mean anyone supported the regime. You deal with allies as you find them (often trying to modify their behavior) not as you wish them to be, think the Soviet Union in WW II.

This is a lazy hit piece that Miller admits comes from "a Democratic source". Seems BuzzFeed has a ways to go before it can be taken seriously for anything other than "21 great pictures of...." listicles. (Speaking of which...it's a fine line between aggregation and out and out theft isn't it BuzzFeed).

Posted by: DrewM at 07:48 AM | Comments (69)
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This is just a horrible, horrible situation.

A fast-moving wildfire near Colorado Springs forced as many as 32,000 residents to be evacuated on Tuesday, as the blaze—fueled by 65 mph winds—jumped a perimeter set by firefighters trying desperately to contain it.

The Waldo Canyon fire—which was first spotted Saturday near Pikes Peak—doubled in size overnight to more than 24 square miles, according to the Associated Press.

The blaze has destroyed an unknown number of homes, caused roads to be closed and shut down part of the U.S. Air Force Academy. About 2,100 residents of the academy's campus were told to evacuate on Tuesday.

Thankfully no one has been injured or killed so far. We can only pray it reamins that way. Still, tens of thousands of people, including Michelle Malkin (who has a roundup of the situation and some amazing photos), have been evacuated and many won't have homes to return to.

Posted by: DrewM at 07:09 AM | Comments (150)
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One of the great gifts liberals benefited from before the rise of conservatism and conservative alternate media, is that so much of their policy preferences were treated as dogma. The media and many other public institutions (think schools) tended to share a similar outlook so public questions were generally "how much more" should something be done not, "should it be done at all".

Obviously that's changing and as liberals are being forced to try and defend their heretofore unquestioned positions, they are showing themselves to be unequal to the task.

Take this Harold Myerson op-ed in the Washington Post defending automatic dues collections by the state for unions and attacking the Knox v. SEIU and Citizens United decisions.

It [Alito's opinion in Knox] also changed the long-standing practice of allowing nonmembers to opt out of paying dues toward union functions outside collective bargaining, mandating instead that the unions “may not exact any funds from nonmembers without their affirmative consent.” In other words, unions would have to ask for nonmembers’ permission to collect political assessments and, possibly, any dues at all. “Individuals should not be compelled to subsidize private groups or private speech,” Alito wrote.

...

These two decisions [Knox and Citizens United] mean that a person who goes to work for the unionized Acme Widget Company can refuse to pay for the union’s intervention in political campaigns but has no recourse to reclaim the value of his labor that Acme reaps and opts to spend on political campaigns. Citizens United created a legal parity between companies and unions — both are free to dip into their treasuries for political activities — but Knox creates a legal disparity between them: a worker’s free-speech right entitles him to withhold funds from union campaign and lobbying activities, but not the value of his work from the company’s similar endeavors.

Let's look at the assumptions packed into these paragraphs.

First, Myerson seems to think unions are entitled to take money from workers without prior permission and places the burden on the worker to reclaim their money. This actually fits with the notion many liberals seem to have that the government has first claim on your money and then decides how much they will let you keep by not taxing it.

Amazingly, as people figure these things out, they aren't as enamored of that plan as liberals seem to be.

Second, workers have no call on how their employer spends the money generated by the company. They have already been compensated for their labor through their wages. That's the end of the transaction. If a worker wants to have a say in how the income of the company is spent, they are free to buy shares (if it's a publicly traded company) and then they can have their say with all the other owners.

If a worker is employed by a privately held company and buying into ownership isn't an option, the individual can quit and go to a company where they can have that voice.

That leads to the third problem with Myerson's argument, employment is voluntary while in closed shops (which most public sector jobs are) unions are mandatory. If you don't like how a company you work for does business, go to another company. Individuals have a right to contract for their labor without having to have a third party (a union) involved. Liberals simply want to insist that third party be part of the process. Why? Because as they are quite open in saying, it helps fund Democrats (Here's another Myerson column admitting as much). There's no reason why the state should be compelling people to indirectly fund one political party or the other.

Democrats always talk about "freedom of choice" but from unions to education, they want the only "choice" to be mandatory support for the institutions that support them. Dismantling these mutually supportive structures and the political assumptions that underlay them isn't simply a partisan fight, it's a fight for liberty.

Posted by: DrewM at 06:23 AM | Comments (159)
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Happy Wednesday.

If you haven't seen it already, scroll down to CAC's poll post below.

In other polling news, 59% of voters haven't heard of Solyndra. 53% haven't heard of Bain Capital. Yes, voters are pretty low-info. But this suggests to me that there are still some (probably squishy middle people) capable of being pushed to one side or the other on these issues.

BuzzFeed has a rather pathetic hit job on AZ Senate GOP candidate Jeff Flake. Tommy over at The Right Sphere takes that apart rather handily.

Remember how the Democrats took an oh-so-principled stand to reject corporate donations to fund their convention? And now they're coming up short of funding? Principles-be-damned, they want to party: "Democrats registered another host committee for Charlotte 2012, New American City Inc., which will accept direct corporate donations."

Kevin D. Williamson over at NR has a nice take-down of Obama on the outsourcing attack. With respect to those attacks, the easiest way to shut 'em down is to point out that even the Washington Post FactChecker gave the outsourcing accusation Four Pinocchios. We should shut it down, and fast. While the attack isn't true, it's possible that it will still hurt Romney if left unanswered.

Rep. Jim Matheson is the first Democrat to say that AG Holder should be held in contempt. Probably not the last. That sound you hear is the exploding heads of Democrats and members of the MBM who claimed that the Fast and Furious probe is merely a partisan witchhunt.

Posted by: Gabriel Malor at 03:25 AM | Comments (313)
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Quinnipiac out with three new polls this morning for PA, OH, FL which is interesting since they...just released a Florida one last week.
Anywho, on to the registered voter results.
In Ohio, Quinnipiac has Obama jumping out to a 47-38 lead. Usually PPP and Quinnipiac move in similar directions (PPP showed Obama's lead halving in Ohio yesterday), not the case this time. On the Senate side, they have Brown cruising to re-election with a 50-34 lead over Mandel. D/R split in the state for this poll was an odd D+8, which explains much of the large lead (they also have Obama doing well amongst indies and better with men and whites than PPP, Public Policy's release yesterday used a D+2 sample). Who knew using a sample with four times the Democratic registration advantage than another pollster will give Obama favor, eh?

In Florida, Obama leads Romney by 4, 45-41, nearly identical to the individual state release they pushed out last week showing him up by the same margin. However, on the Senate side, they have Bill Nelson barely hanging onto his seat, leading Mack by a scant 41-40. They used a D+3 sample in the state, same as their singular poll last week.

In Pennsylvania, Obama leads Romney by 6, 45-39. They have Casey cruising to re-election in the Senate race, leading Smith by a 49-32 margin. These numbers are with the D/R split of D+8, reasonable for the Keystone where Democrats enjoy a marked registration advantage.

Here is where I used to get excited but now take issue with Quinnipiac- Pennsylvania and Ohio share similar demographics, but PA, as many cynical morons have pointed out, is several points to the left of its neighbor to the west. This isn't the first Q release showing a markedly more favorable result for Romney in Pennsylvania. Still, a data point is a data point.

The Q poll results are enough to pull Ohio back away from Romney and into toss-up, holds Pennsylvania steady as lean Obama, and changes nothing for Florida (since last week's identical release showed the same margin). Obama currently edges Romney 263-40-235. Why are the changes not more dramatic, given the leads?

Because we are now at the stage in the cycle where your biggest swing states are being polled by multiple firms- whereas Quinnipiac, PPP, and Rasmussen were the big dogs in winter, now everybody is throwing their two cents in and so every individual poll has less of an impact. Michigan has had five firms release in addition to Rasmussen and PPP in just the last two weeks, for example. As more polling firms pile on, each individual poll affects the margin less and less unless the result skews radically away from the rest of the pack, in which case I keep a suspicious eye when throwing them in (if another firm confirms PPP's Obama Ohio decline, Q's poll gets adjusted down in the #AOSHQDD margin).

Disappointing numbers, but they are what they are and there will be some other firm making us ooh and aaah anyway, so in they go. Surely, Quinnipiac can't be that terribly off anyway. I mean, with Michigan averaging a tossup, Oregon about a six point lead for the President, and Wisconsin a scant three pointer for him, it is totally reasonable to say Ohio is better for Obama than Oregon, Michigan, Wisconsin and Pennsylvania, right?

Posted by: CAC at 02:29 AM | Comments (85)
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