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

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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My ACA-Individual-Mandate Analysis Summed Up In Three Paragraphs**

As AB readers know, I’ve written quite a number of in-depth posts on the ACA litigation—on the individual-mandate provision and on other issues as well.  (The number, by my count, is at least 11,** including the one I posted yesterday, titled “Showtime At The Supreme Court”).  And for your reading enjoyment, and in honor the big show that will be staged at the Court during the next three days, I’m posting the links to all 10** of the earlier posts I located, below. 

But in response to a comment by Coberly to “Showtime” post today, I summed up my analysis of the individual-mandate issue in three paragraphs.  Coberly wrote:

Why, is there nothing then you can’t do in the name of the commerce clause?

Or is it a mystery known only to those who “actually know the law,” as opposed to those of us who worry about little things like civil liberties as they are actually experienced by, say, human beings?

I responded:

There are limits to what Congress can do in the name of the Commerce Clause, but because medical treatment for uninsured patients, including those traveling from one state to another, requires cost-shifting of huge amounts of money, some of it interstate, a law like the ACA is within the Commerce Clause limits. 

That’s not to say that there may not be some other reason why a statute that falls within Congress’s Commerce Clause powers is unconstitutional, and although the people challenging the constitutionality of the mandate don’t expressly say this, their “freedom” and “liberty” claim is really a claim that the mandate violates the Fifth Amendment’s due process clause under a constitutional-law doctrine known as “substantive due process.” (That doctrine also is the legal doctrine under which the Supreme Court ruled that states can’t bar the sale and use of contraceptives, and is the doctrine underpinning Roe v. Wade and Lawrence v. Texas, the opinion that struck down state sodomy laws as unconstitutional.)  But the Commerce Clause plays no role in this, one way or another. 

Sure, if the Court strikes down as beyond Congress’s authority  under the Commerce Clause a statute that requires people to do something or that bars them from doing something, then people are “free” to do or not do whatever the statute required or barred.  But that’s just incidental.  It isn’t less of an imposition on liberty for Congress to require people who can afford to do so to buy health insurance directly through the government by a tax under Congress’s taxing power (which is what the government does with Medicare) than to require then to buy it elsewhere under Congress’s Commerce Clause power.
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Here are the links to the nine earlier ACA-litigation-related posts I was about to find:
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*Actually, as Linda Greenhouse pointed out in her NYT column on Thursday, which I discussed in my post yesterday, it isn’t 26 state attorneys general.  It’s 22 Republican state attorneys general and four Republican governors whose states have Democratic attorneys general.

**I added this one to the list after I posted this post earlier today.

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Showtime At The Supreme Court

Dan emailed me several days ago asking whether I thought I should write a preshow (my word, not his) post about next week’s marathon Supreme Court oral arguments on the constitutionality of Obamacare, a.k.a., the Affordable Care Act.  Six hours of argument, two each day, Monday through Wednesday, in which the Court will hear argument, first, on whether the courts even have “jurisdiction” (the legal authority) to even consider the challenges to the Act’s constitutionality before the challenged provisions of the Act have gone into effect, and, then, on the challenges to separate parts of the Act by various challengers who will be directly affected by the respective provision. 

It promises to be a long three days.  And by the time Dan emailed me, I already was sick of reading previews.  I wrote back to Dan:

I don’t think there’s anything to say, really, at this point.  There’ve been a zillion articles/commentaries about it within the last week or so, but they don’t really say anything.  Mostly they just kind of speculate about how Roberts, Scalia and Kennedy might vote, based on things like what Scalia wrote in a concurring opinion in a Commerce Clause case a few years ago (Scalia expressed an “expansive” view of Congress’s Commerce Clause powers), and how Roberts wants to be remembered. It’s obligatory writing for people like Adam Liptak, the NYT Supreme Court correspondent, but pretty pointless, really.

But two articles published on Thursday, one by former (longtime) New York Times Supreme Court correspondent Linda Greenhouse, who in retirement writes a periodic commentary column in the Times, and Slate Supreme Court and general-legal-issues writer Dahlia Lithwick, are, I think, worth reading. 


Greenhouse’s is titled “Never Before,” and the thrust of her article is that those two words—“never before”—are the sum and the (non)legal substance of the challengers’ arguments.  “Unprecedented,” she notes, “is a description, not an analysis.”  Or a legal argument.  It is instead merely a political argument.  And transparently so, which is why she predicts that the Court will uphold the statute, by a comfortable margin. 

Well, actually, she predicts that the Court will uphold the statute by a comfortable margin because, well, for all the incessant hype, this is not, under extensive and pretty darn clear Supreme Court precedent relevant to each of the separate stated constitutional grounds argued, a close case at all—and because John Roberts cares a lot about how the Court is perceived during his tenure as its chief. 

Or, more accurately, at least in my opinion, because under Supreme Court precedent this is not a close case and  this is too high-profile a case for its outcome not to impact the public’s perception of the Court.  By which I mean, and I think she means, that while Roberts & Co. regularly make out like bandits in the night, hijacking the law and transforming it into reflection of a 1980s Federalist Society checklist, they do so only to the extent to which they expect that they can escape widespread public revulsion.  Which in turn is determined by the extent to which the news media actually focuses on these ideological-agenda rulings before the Court issues the ruling.  

That, after all, is how we got Citizens United v. FEC.  Roberts & Co. misjudged.  Oops.  Well, for heaven’s sake … I mean … y’know … who knew that the public would, um, actually get the Citizens United ruling?

Lithwick’s article makes much the same point as Greenhouse’s—that as a matter of law, this is not a close case—but with a slight twist.  After giving a nod of recognition to the Greenhouse , which was published in that morning’s paper, Lithwick says that while she expects that the Court will uphold the statute, she’s not all that sure.  As a legal matter, she says, this case is not the case of the century nor of the decade nor even of this term.  Unless, of course, a 5-4 majority surprises almost all the legal commentators who actually know the law and follow the Court.   

Which, she says, wouldn’t surprise her all that much, because the case is not really about the law at all, but instead about “optics, politics, and public opinion.”  But ultimately, she thinks, Roberts and one or two of the others just won’t think this case is worth the cost in public opinion. 

I agree.  It’s not as if they get to pick a president in this one.  There are, as Lithwick notes, other cases in their pipeline that could well do that. The oral arguments in those cases are, like the arguments next week, likely to be mere shows.  But with a more limited-release audience and opposite results.

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UPDATE On Kiobel v. Royal Dutch Petroleum. And How It Could Impact ‘Court-Stripping’ Jurisprudence.*

Last Wednesday, the day after oral argument at the Supreme Court in a case called Kiobel v. Royal Dutch Petroleum, both Linda and I posted about the case.  Linda’s post I believe was written shortly before the argument although posted afterward.  Mine was written after the argument and discussed news reports about what occurred.  The title of Linda’s post was “The Supreme Court’s corporate monsters–if money buys them “free speech” rights, can it help them avoid giving others human rights?” The title of mine was “International Law, As Established At Nuremberg*: The ACTUAL Grounds On Which the Supreme Court Will Rule For Shell Oil’s Parent Company In Kiobel v. Royal Dutch Petroleum.”  (I added the asterisk and the related footnote later that night, to make clear that the part of the title that preceded the colon was intended as a sarcastic reference to a statement made by the oil company’s counsel during oral argument, a statement I discussed in the post.)

To refresh your memory—it was barely more than a week ago, but in the intervening time, we’ve all been somewhat distracted by more important things, such as whether slightly-increased private healthcare premiums caused by the inclusion of contraceptives coverage really is public welfare paid by “taxpayers” and therefore women who receive the benefit are prostitutes—my post began by explaining the supposed issue in the case.  I wrote:
In her post earlier today on Kiobel v. Royal Dutch Petroleum, the sort-of-CitizensUnited-like case argued yesterday in the Supreme Court, Linda discusses the issue that was supposed to be the one that the Court would decide, because, well, that was the issue that the lower appellate court, the Second Circuit Court of Appeals, decided.  The issue is whether under the Alien Tort Statute, which was enacted in 1789 and allows “aliens” to file civil lawsuits in the U.S. for violations of the “law of nations,” allows aliens to sue corporations, or instead only individuals, for violations of human rights as defined under clearly-established international law.

The Second Circuit court said it doesn’t, and, as the excerpt from that opinion that Linda posts shows, the appellate panel used as its justification the judges’ own moral judgment that since individuals (i.e., the corporation’s top executives) make the corporate decisions to leverage the corporation’s resources to accomplish these heinous acts, only those individuals, and not the ill-used corporation itself, should be suable.  And that therefore, only those individuals, and not the ill-used corporation itself, will be suable in U. S. federal courts under the ATS.

This notwithstanding that the statute itself says nothing at all about who can be sued under it; it states only what acts the actor can be sued for.  And notwithstanding that the Second Circuit panel’s stated grounds for the ruling, if not necessarily the result (the dismissal of the lawsuit), conflict with the Supreme Court’s ruling two years ago in Citizens United v. FEC.  Which parlayed the First Amendment free-speech right of individuals into a right of corporate CEOs to leverage those rights of its individual human shareholders into a First Amendment speech right of the CEO to use corporate funds to advance his or her political preferences.

I noted that Anthony Kennedy, author of the Citizens United opinion, reportedly indicated that he agreed with the oil company’s statement in its brief that international law does not recognize corporate liability.  Case closed, as far as he was concerned.  But several of the justices disagreed—most emphatically Stephen Breyer and Elena Kagan, but Alito seemed to, too. 

But I went on to say that I expected from what transpired that the Court wouldn’t decide that issue at all and would instead decide the case on entirely separate grounds asserted by Samuel Alito during the argument but not addressed earlier in the case.  Alito questioned whether the statute applies as against anyone, corporation or individual, when, as in that case, the acts alleged occurred outside the United States, by someone or some entity not based in the United States, against people who have no connection to the United States.  I predicted that a majority led by Alito would say it does not.

It now looks like I was right.

On Monday afternoon, the Court issued a surprise order in the case, asking that the parties brief the following issue:
Whether and under what circumstances the Alien Tort Statute, 28 U.S.C. § 1350, allows courts to recognize a cause of action for violations of the law of nations occurring within the territory of a sovereign other than the United States.

The briefing won’t be completed until June 29, and so the Court will decide the case next term, not during the term that ends by July 1. 

The defendant in Kiobel did not claim that the statute provides federal-court jurisdiction (the legal authority to hear the case) only for cases alleging violations of international law that occurred within the United States—probably because the words of the statute suggest otherwise, and because in a 2004 case filed under that statute, in which the acts at issue occurred outside the United States , the Supreme Court gave no indication that it does.  But as SCOTUSblog’s Lyle Denniston noted, the defendant in another current ATS case does.  That defendant lost in the appellate court, and filed a petition asking the Supreme Court to consider the issue in that case.  The justices considered the petition last Friday and took no action on that petition.  Instead, they inserted the issue into Kiobel, in an order described variously by commenters as surprising, unusual, and stunning

The injection of this issue into Kiobel enables the justices to avoid ruling on whether the statute, enacted the same year that the Constitution was ratified, applies only to allow suits against individuals and not against violations corporations under whose auspices the human rights violations occurred. 

The one-sentence statute says: “The district courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States.”  The law of nations does not allow corporations to have atrocities committed under their auspices, whatever yoga-like linguistics contortions Justice Kennedy’s mind or law clerks performed that caused him to suggest otherwise at the argument.

But neither do the statute’s words suggest that it does not apply to (as the Court put it in its briefing order) violations of the law of nations occurring within the territory of a sovereign other than the United States.  If the statute adopts international law only to identify what torts—what actions—can be the subject of a suit in the country, and not to identify who (or what) can be sued, then it shouldn’t matter that (according to Kennedy at oral argument, quoting from a brief supporting the oil company) this country appears to be the only one in the world to “exercise universal civil jurisdiction over alleged extraterritorial human rights abuses to which the nation has no connection.”  But it will, although possibly circuitously.
“What business does a case like this have in the courts of the United States?” Alito asked.  None, a majority of the Court is likely to say, and not because the defendant is a corporation but instead because the atrocities alleged occurred in Nigeria rather than in the United States.  But since the statute itself doesn’t say that, the majority of justices will have to either interpret it as implying that it does or say that the statute must be interpreted in that matter in order to avoid striking it down as unconstitutional, because (they’ll say) Congress lacks the authority to give the federal courts jurisdiction to hear cases about wrongs committed outside the territorial United States. 

Which would be a novel ruling, but one that, as Denniston points out, Alito seemed to suggest by asking: “Is there an Article III source of jurisdiction for a lawsuit like this?…What’s the constitutional basis for a lawsuit like this, where an alien is suing an alien?” 

Article III is the section of the Constitution that created the judicial branch.  It’s also the part of the Constitution that says that Congress, which Article I created, has the authority to grant the federal courts jurisdiction (legal authority) to hear certain types of cases.*  In enacting the ATS, Congress granted the federal district courts the authority to hear “any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States.”

But there are other parts of the Constitution—the Bill of Rights; the Fourteenth Amendment (due process, equal protection of the law); the prohibition against suspension of the right to habeas corpus and against ex post facto laws and bills of attainder (protections included in the original Constitution)—that appear to require access to federal court in order to challenge, whether or not Congress provides for it. 

There are other parts of the Constitution, such as Article II, which created the executive branch, that may limit Congress’s authority to create federal-court jurisdiction.  This is what Alito appears to have in mind.*

And conversely, there are other parts of the Constitution—the Bill of Rights; the Fourteenth Amendment (due process, equal protection of the law); the prohibition against suspension of the right to habeas corpus and against ex post facto laws and bills of attainder (protections included in the original Constitution)—that appear to require access to federal court in order to challenge, whether or not Congress provides for it. 

Or at least it would seem so.  The political right is incessantly trying to remove federal-court jurisdiction to hear cases that they claim violate states’ rights to violate individuals’ rights—a tactic called “court-stripping.”  And one that, with the aggressive assistance of the current Supreme Court, has been phenomenally successful in effectively suspending (read: eliminating) the right of federal-court habeas corpus review by persons convicted of crimes in state court. “Phenomenally” is no overstatement, either.  It’s truly a phenomenon, and one that needs its own post.

Court-stripping and the reverse—I’ll call it court-mandating—are issues that the Supreme Court normally avoids like the plague, best as I can tell.  But if nothing else good comes from Kiobel—and it certainly looks like nothing else will—a Supreme Court acknowledgment that there are constitutional limits to Congress’s authority to determine federal-court jurisdiction might be the consolation prize.  But only if that limitation is viewed as a two-way street.

*This post originally referred to Article I (establishing Congress) as Article II, and referred to Article II (establishing the executive branch) as Article I.  Ooops.

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Due Process: Holder vs Colbert. Art or Reality. Choose.

This is the object: 

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury,… nor be deprived of life, liberty, or property, without due process of law;
 
It’s all one sentence. Any questions?
 

This is Art:

The lyrics of Grand Funk Railroad’s Paranoid
Did you ever have that feeling in your life
That someone was watching you?
You don’t have no reason that’s right
But still he’s there watching you
Someone is waiting just outside the door
To take you away
Everybody knows just what he’s there for
To take you away
 
vs the lyrics of Red Rider’s Lunatic Fringe 
Lunatic Fringe – in the twilight’s last gleaming
This is open season, but you won’t get too far
‘Cause you got to blame someone for your own confusion
We’re all on guard this time against the Final Solution
all on guard this time
 

This is the reality. 44% of our wealth is due to rule of law.

 
World Bank study on wealth in 2005 stated:
 
Worldwide, the study finds, “natural capital accounts for 5 percent of total wealth, produced capital for 18 percent, and intangible capital 77 percent.” “Rich countries are largely rich because of the skills of their populations and the quality of the institutions supporting economic activity,” the study concludes. According to Hamilton’s figures, the rule of law explains 57 percent of countries’ intangible capital. Education accounts for 36 percent.”
 
Rule of law equates to trust.
 
 
 

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Rush Limbaugh Says Tax Money Pays For Students’ and Employees’ Jogging Pants As A Welfare Entitlement

Seriously.  In the rambling press release that he self-styled an apology to Georgetown U. law student Sandra Fluke for calling her a slut and a prostitute, Limbaugh groused:

Amazingly, when there is the slightest bit of opposition to this new welfare entitlement being created, then all of a sudden we hate women. 

He then explained his position thusly:

I personally do not agree that American citizens should pay for these social activities.  What happened to personal responsibility and accountability? Where do we draw the line? If this is accepted as the norm, what will follow? Will we be debating if taxpayers should pay for new sneakers for all students that are interested in running to keep fit?

So even as late as yesterday afternoon when he released the statement, he’s claiming that taxpayerswould be paying the part of employee and student healthcare premiums that cover contraceptives.  And that taxpayers pay for running pants, shorts and tank tops for employees and students who jog, but don’t pay for the Nikes and Reeboks. 

He apparently doesn’t read Angry Bear (see “Will ‘We’ Really Be Paying Sandra Fluke’s Healthcare Insurance Premiums?”, below.)  He should, though.  Dana Loesch, though, clearly does.

What? You’ve never heard of Dana Loesch?  Well, you’re in good company.  Mine.  I’d never heard of her until this morning, when I read the New York Times articleabout Limbaugh’s statements.  The article says:

At least one conservative commentator, Dana Loesch, appeared to back Mr. Limbaugh’s original sentiments, writing on Twitter on Saturday, “If you expect me to pay higher insurance premiums to cover your ‘free’ birth control, I can call you whatever I want.”

So, whatever the merits of her claim to a right to libel anyone whose medical insurance coverage and use raises “her” insurance premiums, Loesch at least does recognize the difference between private insurance premiums and coverage and taxpayer-funded welfare entitlements.  Limbaugh does not.   

Happily, a mainstream media pundit understands this non-trivial distinction, too, and mentions it.  In her New York Times column today, Maureen Dowd writes:

[Limbaugh] said insuring contraception would represent another “welfare entitlement,” which is wrong — tax dollars would not provide the benefit, employers and insurance companies would. And women would not be getting paid just “to have sex.” They’d be getting insurance coverage toward the roughly $1,000 annual expense of trying to avoid unwanted pregnancies and abortions, and to control other health conditions.

So, AB readers, do you think Dowd reads AB?  Nah.  She probably figured it out all by herself. But Loesch probably reads AB.  Okay, or Forbes online. (Thanks for linking to it, Tim Worstall!) For better or worse.  I mean, I’d hate to be, say, (as Bruce Webb points out in a comment to my earlier post) a skier or mountain climber who works for the same employer that Loesch does, or at least has the same insurance carrier that she has.

Wouldn’t want Loesch to accuse them of having murdered their mother, or something. 

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Will “We” Really Be Paying Sandra Fluke’s Healthcare Insurance Premiums?*

Highlights from the transcript of Rush Limbaugh’s uber-viral Wednesday diatribe against Sandra Fluke (in case y’all missed it):

What does it say about the college co-ed Sandra Fluke, who goes before a congressional committee and essentially says that she must be paid to have sex, what does that make her? It makes her a slut, right? It makes her a prostitute. She wants to be paid to have sex. She’s having so much sex she can’t afford the contraception. She wants you and me and the taxpayers to pay her to have sex. What does that make us? We’re the pimps. (interruption) The johns? We would be the johns? No! We’re not the johns. (interruption) Yeah, that’s right. Pimp’s not the right word. Okay, so she’s not a slut. She’s “round heeled.” I take it back.

And:

Well, I guess now we know why Bill Clinton went to Georgetown and why Hillary went to Wellesley. Well, all the sex going on at Georgetown. Sandra Fluke. So much sex going on, they can’t afford birth control pills. She said that to Nancy Pelosi yesterday. Pelosi probably said, “Have you heard what Botox costs? I can relate!” 

And:

So, Miss Fluke, and the rest of you feminazis, here’s the deal. If we are going to pay for your contraceptives . . . we want something for it. We want you to post the videos online so we can all watch.”

Expressions of disgust by, well, everyone have flooded the news media and the general web.  But, to my knowledge, no one’s asked why Limbaugh thinks “we” will be paying for Fluke’s, or other Catholic university students’, contraceptives.  Or (presumably) why he thinks “we” will be paying for the contraceptives of employees covered under employer-provided healthcare insurance, whether at Catholic universities, hospitals and charities, or elsewhere. 

The government doesn’t pay student medical insurance premiums; the students do.  Nor does the government pay the medical insurance premiums of employees at any of the other employers who will be obligated under the ACA to provide minimum healthcare benefits; the employer and the employee together do.  That, of course, is what’s caused all the controversy about whether it violates freedom-of-religion guarantees of the government to require that the healthcare insurance that Catholic universities hospitals and charities provide their employees include contraception.  If the government were paying these premiums, this controversy wouldn’t exist.

So Limbaugh’s statement directed at Sandra Fluke was vile, but it wasn’t just about Fluke and other students at Catholic colleges.  It targeted all women whose healthcare insurance, via premiums, covers contraception.  Limbaugh called them all sluts and prostitutes, and wants them to post videotapes of the sex lives in exchange for their school’s or employer’s, and their own, payments of premiums.

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*UPDATE: Limbaugh has now issued what he characterizes as an apology to Fluke for calling her a “slut” and a “prostate,” saying that the words were ill-advised and that he didn’t intend them as directed personally at her.  Earlier today, Fluke had said she’s considering suing him for libel.

The Washington Post article about Limbaugh’s statement quotes him as saying, yesterday:

Amazingly, when there is the slightest bit of opposition to this new welfare entitlement being created, then all of a sudden we hate women. 

According to the Post, his statement today, a rambling press release, says:

I personally do not agree that American citizens should pay for these social activities.  What happened to personal responsibility and accountability? Where do we draw the line? If this is accepted as the norm, what will follow? Will we be debating if taxpayers should pay for new sneakers for all students that are interested in running to keep fit?

So even as late as this evening when he released the statement, he’s claiming that taxpayerswould be paying the part of employee and student healthcare premiums that cover contraceptives.  And that taxpayers pay for running pants, shorts and tank tops for employees and students who jog, but don’t pay for the Nikes and Reeboks. 

Weird. 

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ALSO SEE:  “Insurance and Birth Control” and “Rush Limbaugh Says Tax Money Pays For Students’ and Employees’ Jogging Pants As A Welfare Entitlement,” above, posted today respectively by Jazzbumpa and me.

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The Cliff’s Notes for my post from yesterday subtitled “Does Romney’s Economic Plan Violate State Sovereignty?”*

The post garnered only one comment, from kharris, who complained that the post was incomprehensible and asked whether it was intended as facetious, and whether I could give a Cliff’s Notes version of it.  I can and did.  I wrote:

[The] post was not intended as facetious, although I’m sure it will be taken that way by the few people who read it.

Basically, the 26 state attorneys general are claiming in that lawsuit that the part of the ACA that relies on a significant increase in Medicaid, funded mostly by the federal government but partly by the states, violates the Tenth Amendment, which the political right claims gives states autonomy amounting to sovereignty not much different than the sovereignty of foreign countries vis-à-vis the U.S. government.

Their claim is that while the state governments are legally entitled to withdraw from the Medicaid program, politically that’s not a feasible option, because Medicaid is a popular program.  This means that the ACA’s requirement that the states spend more in order to remain in the Medicaid program and receive the federal funds they currently receive, the states will have to spend more of their own money on Medicaid in order to meet the requirements of the ACA.

The states claim that this additional requirement is large enough to require states to have to substantially reduce the appropriations for other priorities, such as education, and that therefore the ACA’s Medicaid expansion basically controls the budget process of state legislatures, and in this way unconstitutionally infringes on state sovereignty under the Tenth Amendment.

Enter Romney, and the economic/budget plan he announced last Friday, in which he would cut taxes across the board by 20%, cut corporate taxes by even more (I think), eliminate the estate tax, increase defense spending, leave Medicare and Social Security untouched, and “return Medicaid to the states,” and “send” the other safety-net programs for the poor “to the states” as well.  In other words, he plans to end federal funding for Medicaid and all the other programs.

Which according to the states’ argument in the ACA litigation, would violate the states’ sovereignty under the Tenth Amendment.

So, no, the original post was not intended as facetious.  The post was hard to understand, in part at least because the legal argument of the 26 states is ridiculous.  Yet the Supreme Court agreed to consider the states’ argument.

But a more important point is this: The economic/budget plan that Romney announced last Friday in an attempt to gain Tea Party support in Michigan would cut taxes by 20% across the board, eliminate the estate taxes, cut corporate taxes still further, and balance the budget, if it does, by entirely removing federal funding of all safety-net programs for the poor and telling the states that they should pick up the slack. More than half the states are claiming to the Supreme Court that this would violate the Tenth Amendment, because at least one of these programs, Medicaid, is too popular for it to be politically feasible to end it. 

The Supreme Court almost certainly won’t buy the argument, but what matters is that the states have made the argument.  And have made the point.

Also what matters, of course, is that someone who’s running for president on a claim to be exceptionally astute on business/economic/budget matters should have resisted the urge to put forward a budget proposal that bizarre and easily deconstructed by, well, almost anyone.
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*Ooops. Romney did discuss cutting Social Security benefits in that speech last Friday, by raising the retirement cap.  Seems I was almost as distracted by the empty stadium as most of the news media was, and missed that.  But Gail Collins noticed, and noticed that rest of the news media didn’t notice.

Collins also discusses the payroll tax cap.  And Seamus, of course. 

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International Law, As Established At Nuremberg*: The ACTUAL Grounds On Which the Supreme Court Will Rule For Shell Oil’s Parent Company In Kiobel v. Royal Dutch Petroleum

In her post earlier today on Kiobel v. Royal Dutch Petroleum, the sort-of-CitizensUnited-like case argued yesterday in the Supreme Court, Linda discusses the issue that was supposed to be the one that the Court would decide, because, well, that was the issue that the lower appellate court, the Second Circuit Court of Appeals, decided.  The issue is whether under the Alien Tort Statute, which was enacted in 1789 and allows “aliens” to file civil lawsuits in the U.S. for violations of the “law of nations,” allows aliens to sue corporations, or instead only individuals, for violations of human rights as defined under clearly-established international law.

The Second Circuit court said it doesn’t, and, as the excerpt from that opinion that Linda posts shows, the appellate panel used as its justification the judges’ own moral judgment that since individuals (i.e., the corporation’s top executives) make the corporate decisions to leverage the corporation’s resources to accomplish these heinous acts, only those individuals, and not the ill-used corporation itself, should be suable.  And that therefore, only those individuals, and not the ill-used corporation itself, will be suable in U. S. federal courts under the ATS.

This notwithstanding that the statute itself says nothing at all about whocan be sued under it; it states only what acts the actor can be sued for.  And notwithstanding that the Second Circuit panel’s stated grounds for the ruling, if not necessarily the result (the dismissal of the lawsuit), conflict with the Supreme Court’s ruling two years ago in Citizens United v. FEC.  Which parlayed the First Amendment free-speech right of individuals into a right of corporate CEOs to leverage those rights of its individual human shareholders into a First Amendment speech right of the CEO to use corporate funds to advance his or her political preferences.

The plaintiffs in the case, 12 Nigerians, allege that Shell Oil aided and abetted the Nigerian government in committing horific violations of human rights against protesters of the company’s operations in that country in the 1990s.  According to the several reports I’ve read about yesterday’s argument, Anthony Kennedy, author of the Citizens United opinion, said at the very outset that he agreed with Shell’s statement in its brief that international law does not recognize corporate liability. Case closed.
But Elena Kagan (not a personal favorite of mine, for reasons that I’ll leave for another post, but someone who does demonstrate the ability to recognize distinctions in procedural/jurisdictional law in response to Kennedy’s indications that he cannot, and who is not shy about showing it; this is the second time in about a year that Kagan has done that during an oral argument) pointed out that international law addresses the acts that violate universally accepted human rights, but is silent on who can be sued for committing those acts.

And Samuel Alito and Stephen Breyer agreed. “Let’s assume that the French ambassador is assaulted or attacked in some way in the United States, and that that attack is by a 10 corporate agents. Would we say that the corporation cannot be sued under the Alien Tort Statute?” Slate’s Dahlia Lithwick quotes Alito as asking Kathleen Sullivan, Shell’s lawyer.  Who responded, “Yes, because there is no assaulting ambassador norm that applies to corporations.” Oh?  Does the State Department’s Foreign Service know this?  

Lithwick also quotes Sullivan as saying that “Nuremberg, if it established nothing else, established that it is individuals who are liable for human rights offenses.” She must be right that that’s what the Nuremberg trials established, since the Nuremberg prosecutors didn’t indict Volkswagen and try to have it executed. 

Breyer suggested that pirates should incorporate themselves, under the name “Pirates, Inc.”  A company in which I want to buy stock, if it ever goes public. Under international securities law.  As established at Nuremberg.

Nuremberg, by the way, didn’t establish “nothing else.”

Lithwick suggests that a majority of the justices will not say that corporations cannot be sued under the ATS.  Given the 5-4 ruling in Citizens United, the juxtaposition of the two opinions would be too damaging to the Court’s standing among the public.  I agree; after all, the First Amendment doesn’t say that corporations have First Amendment speech rights, nor mention corporations at all, but that didn’t stop the majority of justices from …  well ….

But neither do I think the Court will say that the ATS does allow lawsuits against corporations for violations of internationally recognized human rights. I think a majority will decide not to decide that issue at all, in this case.  Instead, a majority will say what Alito said at another point: that the statute was not intended to allow people who have no connection to the United States to sue under the statute for violations of human rights by anyone—human or corporate—that himself/itself has no legal-status connection to the United States and that occurred outside the United States.  The Nuremberg defense will have to await another day to succeed or not.

Alito’s French-ambassador-assaulted-in-the-U.S. hypothetical was not a random fact selection. The purpose of the statute, it was made clear during the argument, was to grant ambassadors to the U.S. the right to sue in U.S. court for violations of human rights committed in the U.S—rights they have long had here anyway.  But this is a very old statute, and apparently predates those rights.  The statute itself doesn’t say that it’s limited to circumstances involving victims or perpetrators who have with legal ties to the U.S.  But, whatever.  

I expect that the Court will fill in those blanks.  Although I won’t bet on it. I’ll save my money instead for the Pirates, Inc. IPO.

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*Just to be clear: The first part of the title—the part before the colon—is intended as sarcasm.  It’s a takeoff on Kathleen Sullivan’s weird claim about the meaning of the Nuremberg trials.

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