Relevant and even prescient commentary on news, politics and the economy.

Romney want a crackerrr???

A lost parakeet in Japan was returned safely to its owner last week after it told police its home address. Why do captive birds mimic human speech, and how do they decide what to say?

They’re trying to fit in with the flock, and they’ll say whatever it takes. 

Romney want a crackerrr???

(Sorry, sorry, sorry.  But I couldn’t resist.)

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Florida’s new voter-identification law leaves me … speechless.*

The new Florida [voter-identification] law requires that voter registration drives be conducted by third-party groups that are certified by the state and requires the groups to account for all forms that are checked out from the election division. Those rules are the centerpiece of a training effort this weekend by the Obama for America staff in the state.

— “Obama Campaign Confronts Voter ID Laws,” Michael D. Shear, New York Times, today

Wow.  Is it just me, or is it hard for you, too, to imagine a clearer violation of the First Amendment? I’d never heard of this law before, and I don’t know how long ago it was passed and what stage the court challenge to it is at, but …. yikes.

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*POSTSCRIPT: Just imagine how quickly the Supreme Court would strike down as a First Amendment violation a similar requirement pertaining to petition drives to get candidates’ names on the ballot or to get a voter initiative (e.g., of the sort that the rightwing is so fond of) on the ballot.

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The Beginning of the End of Corporate Gaming of the Bankruptcy Laws?

It will take a few more months of legal maneuvering before American finally throws in the towel and agrees to a US Airways merger. American executives and directors will no doubt have to be bought off with golden parachutes, while trade creditors such as Hewlett-Packard and Boeing will likely be brought on board with promises of future contracts. That’s how things work in the bankruptcy racket. And all of it will be negotiated behind closed doors by legions of bankruptcy lawyers whose $1,000-an-hour fees make those $250-an-hour pilots look like pikers.

For years now, Corporate America has viewed the bankruptcy court as a blunt instrument by which failed executives and directors can shift the burden of their mistakes onto shareholders, employees and suppliers. The auto industry bailout orchestrated by the Obama administration posed the first challenge to that assumption. Now the unions at American airlines have taken another step in curbing this flagrant corporate abuse and restoring the rule of law.

— “Two can play the airline bankruptcy game,” Steven Pearlstein, Washington Post, Apr. 28 (Boldface mine)

Enough said.  I think. Except for this: I’d love to see Obama mention this and explain it during the campaign, and not fear that it’s too complicated to be explained briefly. It’s not.

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Bait and Switch: Is Pope Benedict Really Against Raising Taxes On the Wealthy to Help Balance Government Budgets?

(Reuters) – Invoking Pope Benedict, Republican Representative Paul Ryan defended his budget plan on Thursday at Georgetown University, where a group of the Jesuit institution’s faculty has accused him of misusing Catholic teachings to push cuts to programs that serve the poor.

“The overarching threat to our whole society today is the exploding federal debt,” Ryan said, speaking in a Gothic, oak-paneled auditorium on the Georgetown campus.

“The Holy Father, Pope Benedict, has charged that governments, communities, and individuals running up high debt levels are ‘living at the expense of future generations’ and ‘living in untruth.'”

— “Republican Ryan cites popeto defend budget cuts,” David Lawder, Reuters, Apr. 26

The overarching threat to our whole society today is the exploding federal debt?  Well, maybe. But this is an argument against raising revenues by raising taxes on the wealthy?  Or, for that matter, on anyone?
 
What’s most angering is this deliberately disorienting, gimmicky refusal by these pols—Ryan and Romney, in particular—to acknowledge that raising revenue through taxes reduces the government’s budget deficit and debt; that lowered tax rates in the last 11 years have significantly increased budget deficits and the debt (and that that also happened in the 1980s); that budget deficits and the national debt decreased during the 1990s after tax rates were raised during the G.H.W. Bush administration; and that Ryan’s and Romney’s tax-reduction plans would, according to (apparently) all projections except their own, substantially increase the national debt. 
 
It’s one thing to argue for a substantial reduction or elimination of the national debt, but quite another to pretend that raising tax revenues isn’t one possible way to help do that.  
 
These people do make Ayn Rand philosophical arguments to support their policy proposals, but the claim that the pope “has charged that governments, communities, and individuals running up high debt levels are ‘living at the expense of future generations’ and ‘living in untruth,’” is a non sequitur to the question of how we reduce the national debt.  

It appears, though, that this particular bait-and-switch—Ryan’s claim that the pope supports his budget proposals because the pope has expressed concern about high debt levels of governments, communities and individuals—is causing outright revulsion among both mainstream media pundits and the general public once they hear about it.  The pope as Ryan’s budget guide?  Really?  Comments posted to an article about it yesterday on Slate, titled “Paul Ryan Cites Pope In Defense of Budget Plan,” almost universally express disgust and dismay at Ryan’s claim.  The pope as Ryan’s budget guide?  

The beauty of Ryan’s statement is that it helpfully highlights that, Romney’s insistence to the contrary, this election is not about the present and future economy—will cutting taxes for the wealthy by 20% and eliminating the EPA and banking regulations really spur the economy and lower the national debt?—but instead about the very structure and purpose ofgovernment itself.  And because Ryan has now invoked the pope as supposed political supporter of Ryan’s budget, the real Republican intent will likely gain widespread attention.

Halleluiah.  And praise the pope.

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The Laugher Curve: Romney Etch-A-Sketch Aide Says Romney Thought TARP Unnecessary but Urged Support of It as a Give-Away to Wall Street

Okay.  The subtitle of this post is a loose paraphrase of statements that Romney aide Eric Fehrnstrom made to ABC News on Thursday.  But not all that loose a paraphrase. It’s actually a direct deduction from Fehrnstrom’s comments.

As Washington Post blogger Greg Sargent mentioned on Friday, Fehrnstrom test-drove a new, or rather a newly clarified and perfected, campaign theme.  He claimed that the economic collapse began three years ago, immediately after Obama’s inauguration, rather than during the Bush administration.  Or that the severe economic downturn, which began in late 2007, and the near-collapse of the banking system, which occurred in the last few months of 2008, are unrelated to the deepening of the recession in 2009 and the ongoing high (but decreasing) unemployment rate, and also are unrelated to each other.  I’m not sure which.  Nor apparently is Fehrnstrom. 

He is sure, though, that the jobs created since the beginning of this administration, including the ones generated in, say, the last two years, owe nothing to Obama’s policies. 

Call it the theory of neo-economic severability.  Which occurs when some political hatchet wielder misjudges the level of most people’s credulity.  Or misjudges the public’s memory about major, fairly recent events, or at least about the public’s ability to have its memory refreshed by a few video clips and headlines from, say, the fall of 2008.  

Or just call it the Laugher Curve. 

My instant reaction after reading the first two paragraphs of Sargent’s post was: Ah! I should have known it!  My liberal-Democrat parents and my American History teachers lied to me. The Great Depression started in March 1933, since that was the beginning of the massive job losses that occurred in the last nine months of that year and in the following two years or so. The uptick in employment in ’36-’37 had nothing to do with Roosevelt’s policies and were instead the result of Hoover’s policies—something that should have been obvious all along, since the market crash and the economic collapse beginning in late 1929 were unrelated to each other and to the Great Depression, which started in 1933.  Those people waiting in breadlines during the Hoover administration were just practicing in case a Democrat was elected down the road and caused a Depression.  Unfortunately, one soon was, and he did.

Then I read Sargent’s third paragraph and saw that real pundits had gotten there first with that one.  Oh, well.

Sargent says that while Fehrnstrom’s claim is a step beyond Romney’s routine ones, at least in its clarity, it’s really a rendition of Romney’s main theme: that Obama’s policies caused the economic collapse.  And Sargent’s livid that the media hasn’t called Romney on it, by pointing out the, um, chronology problem.  

I’m not so sure that Fehrnstrom’s claim isn’t really new.  I’ve thought Romney’s just been claiming that Obama’s policies haven’t succeeded in spurring economic growth and hiring and instead have hindered it.  (Especially in Michigan, Ohio, Indiana and elsewhere where GM and Chrysler plants and huge numbers of auto suppliers’ factories shuttered after Obama allowed those two automakers to liquidate back in 2009, despite Romney’s frantic warnings about the dire consequences.)  I think Fehrnstrom’s new iteration is different, not just clearer. 

But as the ABC News story shows, this new theme isn’t just Fehrnstrom’s talking point; it’s also Romney’s.  On Thursday, Romney pretended that a Lorain, Ohio National Gypsum plant where Obama campaigned in January 2008 had closed during Obama’s presidency.  Actually, it closed a few weeks after Obama spoke there in 2008.  The plant, which employed about 70 people, made drywall.  Y’know, for new homes.  The market for which, and therefore the building of which, slowed in 2007 and collapsed in 2008.  It’s a market that can’t exist at all without a healthy credit market. 

Which brings me to … TARP.  A.k.a, the bank-bailout.  Or at least it reminds me that that was the subject of this post’s subtitle. 

Sargent suggests that some member of the press who covers Romney’s campaign stops ask Romney what exactly he would have done as president in 2009 to spur the economy and job creation.  But we already know the answer to that: eliminate all regulation on business and reduce or eliminate taxes on corporations and wealthy individuals. 

Me?  I just want some reporter to ask Romney, in light of Fehrnstrom’s claim, why, if the economy was fine until 2009 and the banking industry wasn’t collapsing back in the fall of 2008, he urged Republican members of Congress to vote for the bailout.  Oh.  Oh, wait.  It must be that TARP worked so well—and so fast—that by January 20, 2009 the economy was healthy again.  But then one of those damn healthcare-legislation death panels intervened and mandated the death of the recovered economy, as practice for some time down the road, after enactment of the Affordable Care Act, when the panel would have to kill nice old ladies instead of the GDP.  Either that or, well, Romney wanted the bailout as a gift to Wall Street, not as the only apparent way to keep the entire financial system from unraveling, his contrary claims notwithstanding; according to Fehrnstrom, Romney thought the financial system and the economy were fine.

But I’d also like a reporter to ask Romney why he’s adopted Fehrnstrom’s modus operandiof misrepresenting the timing of occurrences or misstating who said whatever, by simply cutting out words, or years.  Before his recent Etch-a-Sketch notoriety, Fehrnstrom gained notice as the aide who concocted an ad last fall showing Obama in a news clip saying something like “If we keep talking about the economy, we lose.”  The original clip was from 2008, and Obama was quoting McCain.  

Several commentators have written in recent weeks that a hallmark of Romney’s campaign is shaping up to be bald lies, mostly by Romney himself.  Most of these misrepresentations involve something Romney says falsely that Obama said, but sometimes the misrepresentations are fabricated statistics.  Always though, they are easily disprovable, and the statements that can’t be disproved with a video clip showing what actually was said or what actually happened, or with statistics, eventually will be disproved when Romney is directly asked the basis for the statement.  At least I assume Romney eventually will be asked this, even though Romney assumes otherwise. 

But rather than suggest that Romney regularly makes things up—that he’s a habitual liar—Obama should pretend to take him at his word.  While some voters may decide to abide a presidential candidate who they know is a habitual liar and cockily flaunts it, a majority probably wouldn’t risk voting for one who appears to base important decisions on supposed facts that have not been checked for accuracy.  Everyone knows that Romney is comically malleable.  But, if taken at his word, he’s also easily conned. 

Obama should take him at his word and illustrate the point, incident by incident.  Most voters, after all, probably would rather have a president whom they wouldn’t trust to sell them a used car than a president who they wouldn’t want buying one.  Romney of course would be the former, and most voters will recognize that.  But not before pausing and wondering.

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Romney’s speech at the shuttered National Gypsum factory is important for a more substantive reason, too: Statements he made in the speech serve, I think, as a pretty stark argument for Keynesian economics and therefore undermine the Republicans’ anti-stimulus refrains regarding the 2009 stimulus law and their current opposition to use of federal funds to help state and local governments avoid further layoffs of teachers, firefighters and police officers.  And it’s pretty hard not to juxtapose those statements with Romney’s hostility toward the auto-industry bailout, both then and now.  I’ll post a short post on this later today or tomorrow.  A short post is all that’s necessary, because Romney’s words speak for themselves.  Economics isn’t my bailiwick.  But for this it doesn’t have to be.

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Chris Christie’s Sweet Dream (And Romney’s)

“I’ve never seen a less optimistic time in my lifetime in this country and people wonder why,” the first-term Republican governor said at the Bush Institute Conference on Taxes and Economic Growth in New York City.

“I think it’s really simple. It’s because government’s now telling them ‘stop dreaming, stop striving, we’ll take care of you.’ We’re turning into a paternalistic entitlement society,” he said.

“That will not just bankrupt us financially, it will bankrupt us morally because when the American people no longer believe that this a place where only their willingness to work hard … determines their success in life then we’ll have a bunch of people sittin’ on a couch waiting for their next government check,” Christie said.

That, pretty clearly, is the message that the Republicans, party-wide, have settled on for this election: People are depressed because of the existence of the social safety net and other government programs such as student-loan and job-retraining programs, and because the very wealthy haven’t had their tax rates cut enough, the gap between the very wealthy, and all those couch potatoes who work regular jobs isn’t large enough.  

I wish them all the best with that message.  And I hope they keep pushing it, all the way to November. 

I think it’s simple, too. I’ll leave it at that.

Can’t wait to hear the next installment of Christie’s VP audition script.  Maybe something about all those auto-industry-worker couch potatoes who’ve stopped dreaming and striving now that Obama has handed GM and Chrysler to the UAW?

By the way, did Christie ever use the student-loan program, I wonder?  Or did he, like Romney and Romney’s kids, have no need for it?

Christie was speaking at the Bush Institute Conference on Taxes and Economic Growth. Tomorrow’s audition will be by Paul Ryan. It’s a follow-up audition, actually.

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Apparently, not all government programs cause mental depression.

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Obama Finally Follows My Advice. Here’s One More Suggestion.

Okay, okay.  I know that Obama doesn’t read AB.  So I know that his decision, reflected in his speech today at a lunch with Associated Press editors and reporters, to finally—finally—start refuting the Republicans’ economics proposals with actual examples and statistics, was not prompted by my repeated laments here that Obama just doesn’t do specifics, i.e., statistics and other facts, when speaking to the general public, which until now he’s rarely done anyway.  And my primal pleas that he do so.  (When, earlier this year, he defended his decision to openly approve a Super Pac that supports him, explaining that he decided to not unilaterally disarm, I said to myself: “Hmm. Guess he’s had a change heart, after unilaterally disarming for the last three years.”)

So the first sentence in the title of this post is facetious.  The second sentence in the title is not.

The New York Times is reporting on its website:
President Obama opened a full-frontal assault Tuesday on the budget adopted by House Republicans, condemning it as a “Trojan horse” and “thinly veiled social Darwinism” that would greatly deepen inequality in the country.…

In the latest of a series of combative speeches, the president said Americans could not afford to elect a Republican president at a time of fragile economic recovery, with a weak job market and a crushing national debt from “two wars, two massive tax cuts and an unprecedented financial crisis.”

The widening gulf between the rich and everyone else, Mr. Obama said, was hobbling the country’s economic growth. He cited studies that found that societies with less income inequality had stronger and steadier growth.

“In this country, broad-based prosperity has never trickled down from the success of a wealthy few,” the president said, according to excerpts of his address. “It has always come from the success of a strong and growing middle class. That’s how a generation who went to college on the G.I. Bill, including my grandfather, helped build the most prosperous economy the world has ever known.” …

But the president reserved his harshest words for the 2013 budget proposal recently passed by the Republican-controlled House. The budget, drafted by Representative Paul D. Ryan, Republican of Wisconsin, calls for $5.3 trillion in spending cuts, as well as tax cuts for households earning more than $250,000.

“Disguised as a deficit reduction plan, it’s really an attempt to impose a radical vision on our country. It’s nothing but thinly veiled social Darwinism,” Mr. Obama said. “By gutting the very things we need to grow an economy that’s built to last — education and training, research and development — it’s a prescription for decline.”

I’m absolutely thrilled. Obama’s finally picking up the gauntlet that the Repubs have thrown down, and, calling that spade the spade that it is, is throwing it back.  Hard.  Clear. And with real precision.

By far the most important parts of what he said are, I think, his references to the WWII generation’s use of the GI Bill and how it effectuated class mobility and helped spur the tremendous economic growth of the three postwar decades, and his actual citation to studies showing that societies with less income inequality had stronger and steadier growth.

Hooray.  Hooray!

But I hope he goes even further and compares the tax rates during the 1950s, ‘60s, ‘70s, ‘80s and ‘90s—including capital gains taxes and estate taxes—with today’s tax rates established during the G. W. Bush presidency and, even more important, with the tax rates proposed by the current Republicans.  
Yup.  George Romney and Edward Davies, Ann Romney’s father, amassed their wealth during Socialism.  They must have been economic Houdinis.  Or  corrupt Commie officials.

I hope Obama also discusses what those higher tax rates bought.  The interstate highway system, for example, and the student loan programs and significant aide to state universities that helped finance so many baby boomers’ college educations.  And that he points out, again and again, that in January 2001 we had no budget-deficit problem because we were raising most of the federal tax revenue needed to pay for most of our federal needs.
Specifics.  Statistics.  To refute the damn lies and the soundbites and clichés.  And to illustrate the consequences.  A picture really is worth a thousand words.  Even if the picture is drawn in words.
Here’s one such picture, already framed: In his State of the Union address earlier this year, Obama acknowledged the problem of spiraling college tuitions and its effect on the ability of college-age members of the so-called working- and even middle-class to attend college, and on the longer-term economic effects upon those who do, using college loans that leave them owing massive debts upon graduation.  Not even to mention the long-term effects on the economy from this huge aggregate debt.  He suggested penalties, in the form of reductions in federal funds, for colleges and universities that don’t find ways to curtail the tuition hikes. 

A day or two later, Linda posted a fact-based refutation, pointing out that the main reason for the incessant tuition hikes at public universities is the incessant cutting of state funding for those universities, necessitated all the more by the economic downturn since 2007 and the resulting decrease in tax revenues and increase in recession-related expenditures.  Not long afterward, I read—I don’t remember where—that one major state university, which was not identified in the article, has seen its state funding reduced from 80% of its total revenue sources to 20% within (I think) the past two decades.  The result, as some longtime professors at state universities lament, is that the student bodies at these schools are now, unlike in earlier relatively-recent times, largely from upscale families, and very few are from working-class families. The level of federal financial assistance to states for colleges and universities obviously impacts this significantly.

I’d love to hear Obama use this as an example to illustrate that the starve-the-beast juggernaut has broad and profound societal consequences. 

I’d also love to see Obama ask rhetorically what people think will be the consequence of the Republicans’ budget if, during the next economic downturn there  is no funding for unemployment compensation, a need that obviously is in an inverse relation to the unemployment rate and therefore to tax revenues.  And what will we cut from the budget in order to provide emergency disaster funding for, say, hurricane damage?

But today was a terrific start.  It’s statistics and other specifics that matter.  And today, for once, he provided some.  Hopefully, it was just the start.  

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Can Your State Mandate That You Buy Broccoli or Join a Gym? (And why the excoriation of Donald Verrilli is misplaced)

The answer to the title’s question—Can your state mandate that you buy broccoli or join a gym?—depends upon which of the two possible grounds the 5-4 Supreme Court majority overturns the ACA’s individual-mandate provision.  And which grounds the majority selects also will determine whether under the Court’s new “liberty” jurisprudence, Social Security and Medicare also are unconstitutional. 

That’s because if, for all their posturing about the imposition on individual liberty of having to buy healthcare insurance that the individual may not want, they ultimately base their ruling not on that imposition on individual liberty to choose whether or not to buy a health insurance policy, but instead upon—and only upon—a narrow reading of the Congress’s powers under the Commerce Clause, states will retain the right to mandate the purchase of health insurance (e.g., “Massachusetts’s “Romneycare”), and of auto insurance, and of broccoli, and of gym memberships.

If, on the other hand, the Commerce Clause ground is simply the fig leaf used to segue into an individual-liberty-to-choose-not-to-buy-health-insurance ground, then the ruling also will imperil the legal underpinnings of Social Security and Medicare, because while those programs were enacted not under Congress’s Commerce Clause power but instead under its taxing power, both programs require payment for insurance—one, a retirement annuity, the other, eventual health insurance—that the individual may not want and may never use. Not everyone lives to age 65, after all.

The Commerce Clause issue deals only with the breadth of Congress’s power to regulate interstate commerce and the things that impact it.  Or, in Commerce Clause jurisprudence lingo, the power to regulate “markets” that impact interstate commerce.  The Obama administration, and the Congress that enacted the ACA, have claimed that there are two separate “markets” that the ACA regulates: the market for health insurance and the market for healthcare itself.  The Commerce Clause issue does not address what statescan regulate, and what states are prohibited by concepts of “liberty” from regulating. For that, you have to look at the Fourteenth Amendment’s due process clause and the constitutional doctrine known as “substantive due process,” which concerns the limits of state governments’ powers to intrude into personal autonomy, personal decisions.  As I explained in a post earlier this week, it is the doctrine under which the Supreme Court has stricken state laws prohibiting the sale and use of contraception and state laws prohibiting sodomy, and those categorically prohibiting abortion (Roe v. Wade).

The Fourteenth Amendment applies only to the states, but its due process clause is virtually identical the Fifth Amendment’s due process clause.  The Fifth Amendment applies to the federal government, and the “substantive due process” doctrine applies to that Amendment’s due process clause in the same manner in which it applies to the Fourteenth Amendment’s.

For the last two years, the rightwing has conveniently conflated the Commerce Clause ground and the due process “liberty” ground, seamlessly seguing between the two but always calling the “liberty” ground the “Commerce Power” ground.  And, with two exceptions that until Tuesday’s argument seemed important, they’ve gotten away with it  The two exceptions were the two lower appellate court opinions, both of them written by conservative Republican appointees, upholding the constitutionality of the individual-mandate provision and, in doing so, noting both that the mandate provision concerns not only the market for healthcare insurance but also the market for healthcare itself, because a 1986 federal law requires hospitals that receive federal funds to treat people having medical emergencies, irrespective of whether or not the patient has healthcare insurance. 

What surprised me most about Tuesday’s argument is that Anthony Kennedy appears to have not readthe government’s brief on the individual-mandate provision.  He seemed utterly unaware of the nature of the government’s Commerce Clause claims and unaware of the 1986 law.  “Can you create commerce in order to regulate it?” Kennedy asked Solicitor General Donald Verrilli early on.  Well, no, but if, as the government claims, one of the relevant markets under Commerce Clause jurisprudence is the market for—payment for—healthcare, then unless the ACA rather than the 1986 statute creates the obligation of hospitals to treat people who come there with medical emergencies and to admit them to the hospital if necessary rather than just treat them in the emergency room, then the ACA doesn’t create the market for healthcare of the uninsured.  Kennedy suggested that we don’t require hospitals to provide medical treatment to the uninsured, just as we don’t require someone in a position to stop a blind person about to step in front of a moving car, to do so.  And Scalia said we shouldn’t “obligate” ourselves to that.  We already have, which is one reason why the mandate provision comes within Congress’s Commerce powers.

Verrilli is being excoriated for answering ostensibly Commerce Clause questions with actual Commerce clause answers.  Especially for answering Kennedy’s and Roberts’s requests for a “limiting” Commerce Clause principle with a Commerce Clause answer.  Paul Clement, lead attorney for the challengers, is, by contrast, being praised for his brilliance in presenting his arguments, although his task was similar to that of a candy store owner offering children all the free candy they’d like.  Clement may be a brilliant appellate advocate.  But a monkey could have argued this one for the challengers, with the same effect.

Much is being made of Verrilli’s final few sentences on Tuesday—and Clement’s response to them.  And appropriately so.  Verrilli, ultimately realizing that the earlier questions were not really Commerce Clause questions at all, nor even Fifth Amendment substantive due process “liberty” questions, but instead public-policy questions, made an emotional plea that the Court respect the public-policy choice of Congress and the Obama administration in choosing to recognize a profound connection” between health care and liberty. “There will be millions of people with chronic conditions like diabetes and heart disease, and as a result of the health care that they will get, they will be unshackled from the disabilities that those diseases put on them and have the opportunity to enjoy the blessings of liberty,” he said.

To which Clement responded, “I would respectfully suggest that it’s a very funny conception of liberty that forces somebody to purchase an insurance policy whether they want it or not.”  Perhaps.  But that’s a Fifth Amendment due process argument, not a Commerce Clause one.  And if it is upon that basis that the Court strikes down the individual-mandate provision in the ACA, those of us who think that the Social Security and Medicare statutes are constitutional under both the taxing power of Congress and generic “liberty” jurisprudence shouldn’t find the Court’s ruling in this case funny at all.

[Cross-posted at Firedoglake.com, front page.]

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As Goes Obamacare, So Goes Romneycare … and State Laws Requiring Auto Insurance?

I’ve written repeatedly now on AB that the challenge to the constitutionality of the ACA’s minimum-coverage provision (a.k.a., the individual-mandate provision) is not really a Commerce Clause challenge but instead a challenge under the Fifth Amendment’s due process clause, under what is known as the “substantive due process” constitutional law doctrine.  The Fifth Amendment’s due process clause limits what the federal government can do vis-à-vis individuals.  A clause in the Fourteenth Amendment is nearly identical, and identical in substance, to the Fifth Amendment’s due process clause, except that it limits what state governments can do vis-à-vis individuals.  

SCOTUSblog’s Lyle Denniston’s early report suggests that I was right.  The outcome of the case, he predicts, will depend on whether Kennedy believes that the Court can uphold the mandate provision without opening the door to unlimited congressional mandating of purchase specific things, not because Congress lacks that power under the Commerce Clause but instead because it violates liberties protected under the Fifth Amendment’s due process clause. Denniston does not mention the Fifth Amendment, but, whether or not the justices themselves did specifically, that is the upshot.

The “substantive due process” doctrine holds that there are certain incursions into personal autonomy and certain impositions on individual liberty beyond which the Constitution allows the government to go.  It is this doctrine by which the Court has stricken down such laws as state laws barring the sale and use of contraceptives, state laws prohibiting abortion under all circumstances (Roe v. Wade),  and state laws criminalizing sodomy.

But based on Denniston’s early report about the nature of Kennedy’s concerns, I don’t see how, absent an utterly artificial Commerce Clause-based ruling, a ruling that the mandate unconstitutionally infringes upon person choice, upon personal liberty, would not also mean that Massachusetts’s “Romneycare” law, and state laws that  require drivers to purchase auto insurance, would be constitutionally permissible. 

Kennedy likes to wax eloquent, as he did last year in an opinion in a case called Bond v. United States, about how divisions of power among various governments—by which he means state governments vs. the federal one—protect individuals from tyranny. (He’s usually less interested in constitutional checks than on balances to state power—especially to state-court power—but that’s another subject.)  In Bond, he said, rightly, in my opinion, that a person indicted under a federal criminal law has legal “standing” (the legal right) to argue that the federal statute unconstitutionally infringed upon an area of criminal law reserved solely for the states to address, because the federal statute impinged (literally, in that case) her personal freedom.  So if the problem with the insurance mandate is that it exceeds Congress’s authority under the Commerce Clause, then a ruling that the ACA, a federal statute, is unconstitutional would not affect state statutes.
But that’s a separate issue from whether the mandate is an unconstitutional violation of personal liberty irrespective of whether or not the Commerce Clause power would allow Congress to enact the law.  And under the Court’s longtime Commerce Clause jurisprudence, Congress does have the authority to legislate the mandate to buy health insurance, given the impact on the healthcare market of the uninsureds’ usage of health care.  A ruling to the contrary would be transparently artificial. Which probably won’t matter to Kennedy.

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This will be cross-posted later today to the Firedoglake blog.

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‘Jurisdiction’

To the general public, all that matters are the headlines, reflecting the bottom line.  The universal consensus among reporters who attended the 90-minute Supreme Court argument yesterday on whether an 1867 law called the Anti-Injunction Act bars the Court from considering challenges to the constitutionality of ACA’s individual-mandate provision was that the justices will decide the constitutionality of the mandate provision despite the AIA.  

But law geeks like me know that what also matters is how they conclude that the court has “jurisdiction”—legal authority—to decide the constitutionality of the mandate provision. That’s because federal judges are incessantly, and often spontaneously, throwing lawsuits out court, claiming that they lack jurisdiction to hear the case—a trend begun in the 1980s and accelerated exponentially, explicitly and by malignant (as opposed to benign) neglect to reverse lower appellate court rulings, by the conservative legal movement to which a majority of the Roberts and Rehnquist courts adhere. 

A key part of the conservative-movement’s federal-courts-have no-jurisdiction-to-hear-any-constitutional-claims-except-the-ones-that-conservatives-want-them-to-hear jurisprudence is that federal-court jurisdiction either exists or it doesn’t, and if it doesn’t it can’t be waived by the parties.  So even if neither party claims a lack of federal jurisdiction, the judge, judges or justices in each case must raise the issue themselves if they believe jurisdiction may be lacking. Under the Constitution, Congress decides what types of cases the federal courts have jurisdiction to hear, by enacting “jurisdictional” statutes that either grant or remove federal-court jurisdiction in specific categories of cases, subject only to requirements or prohibitions in other parts of the Constitution.  (Actually, the Supreme Court has created several legal “doctrines” out of whole cloth that remove federal-court jurisdiction in various cases, but I’ll leave that for another day.)

The AIA  provides that “no suit for the purpose of restraining the assessment or collection of any tax may be maintained in any court by any person.”  The ACA’s individual-mandate provision does not become effective until 2014 and the penalty for failure to obtain the minimum insurance will not be assed until April 2015, through income tax filings.  Early on in the ACA litigation, the Obama administration claimed that the ACA penalty was a tax and that the AIA therefore removes federal-court jurisdiction to hear the challenge to its constitutionality until 2015, but it soon retracted that claim and now argues that the penalty is, well, just a penalty, not a tax, and that therefore the AIA doesn’t remove federal-court jurisdiction to decide the constitutionality of the mandate and penalty for non-compliance with the mandate until 2015; the Court can decide the issue now.  

Three of the four lower federal appellate court panels that have issued rulings in ACA litigation, including the one in the case that the Court is hearing this week that ruled the mandate unconstitutional, agreed. The Supreme Court, in deciding to hear the AIA claim anyway, appointed a private lawyer to argue that the AIA does apply here, because the Justice Department joined the ACA’s challengers in saying that it doesn’t.

Everyone, certainly including me, assumed that the outcome of this “jurisdictional” issue—of whether or not the AIA barred the Court’s consideration of the challenges until 2015—would depend upon whether the Court thinks the penalty is a penalty or instead a tax.  And that may prove accurate.  But, stunningly (in my opinion), the Court, at the urging of Roberts, might instead say that it doesn’t matter whether the penalty is actually a tax, because the government has waived the jurisdictional claim. “It’s a case quite similar to this in which the constitutionality of the Social Security Act was at issue, and the government waived its right to insist upon the application of this [Anti-Injunction] Act,” Roberts said, referring to Helvering v. Davis, the 1937 case in which the Court upheld the Social Security Act.  “So,” Roberts asked, “are you asking us to overrule the Davis case?” 

Hmmm.  I thought they already had done that.

SCOTUSblog’s incomparable Lyle Denniston provides invaluablereportage and analysis of the different options that emerged from yesterday’s argument on how the Court will remove the AIA as a bar to deciding the constitutionality of the mandate provision. 

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This will be cross-posted later today to the Firedoglake blog.

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