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What I Want Bernie Sanders to Know Before Tuesday’s Debate

A few weeks ago Mike Huckabee made minor news by telling an interviewer that slavery has never been made unconstitutional.  Or, to be precise, he told radio interviewer Michael Medved that “the Dred Scott decision of 1857 still remains to this day the law of the land which says that black people aren’t fully human.”  He then asked, “Does anybody still follow the Dred Scott Supreme Court decision?”

That was a rhetorical question because no one follows the Dred Scott Supreme Court decision anymore.  No one has since December 18, 1865, when the Thirteenth Amendment was certified by the secretary of state as formally a part of the Constitution.  At least no one admits to following the Dred Scott Supreme Court decision anymore, and no one follows the part of it that treated slave ownership as a property right, since everyone but Huckabee knows about the Thirteenth Amendment.  It provides:

Section 1. Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.

Section 2. Congress shall have power to enforce this article by appropriate legislation.

But the Dred Scott opinion did not actually address the constitutionality of slavery; slavery clearly was constitutional then and Mr. Scott did not claim otherwise.  What Dred Scott addressed was whether under the Constitution, the right of states to trump the rights of individuals, including even the most basic human rights, extended beyond the borders of the states whose laws authorized the profound violations of human rights.  That is, whether the rights of those states to violate individuals’ human rights extended beyond those states’ borders and into other states.  The Supreme Court said it did.

And it is a fundamental tenet of the modern Conservative Legal Movement begun in the late 1970s, that has a stranglehold on the current Supreme Court and until recently thoroughly controlled the lower federal courts and continues to rage unabated in state courts, that despite the clear language and purposes of the two additional Reconstruction amendments, the Fourteenth and the Fifteenth, the essence of Dred Scott indeed remains the law of the land.  And just as in Dred Scott, it is given the name “Freedom”, its source of constitutional legitimacy nothing actually specified in the Constitution but instead the Constitution’s supposed “design”, which is federalism, the technical term for states’ rights.

The idea is that a separation of powers between types of governments means freedom. Balances between the powers of the federal government and state (and local) governments.  No checks, though; only balances.  Unless, of course, a state legislature enacts, say, a campaign-finance law, or a municipality a gun-restriction ordinance.

Trickle-down freedom, in other words.  Freedom derived by virtue of your state’s right not to be confined by federal constitutional rights that explicitly accrue directly to individuals.  Even though the Fourteenth Amendment begs to differ.

If you were a slave owner back before the Emancipation Proclamation, you were free to reclaim your escaped slave from a state that outlawed slavery, courtesy of your state’s freedom vis-à-vis the federal government.  And if you are a state or local judge, a state or local law enforcement officer, a state or local prison guard, you are unconstrained by that pesky Bill of Rights and that Fourteenth Amendment.  Those do limit state legislators’ and municipal lawmakers’ powers to, say, legislate campaign-finance laws and gun-ownership ordinances, but do not limit the brute power of government actors invested with actual and direct police powers over specific individuals.  It is only in the rarest of circumstances that individuals have freedoms derivative of their state’s rights, and therefore only in the rarest of circumstances does “Freedom” concern actual physical freedom.

It never concerns the right to be treated humanely when in the custody of the state.  Or the right to survive a traffic stop.  Or to not be incarcerated for days, weeks or months because you can’t afford to pay the hundreds or thousands of dollars in fines and fees whose purpose is to fund the municipality’s government, especially its law enforcement complex.  Or to be brutalized while in jail awaiting trial.

Then, freedom means state or local government’s freedom to violate individuals’ constitutional rights.  Federalism, in other words, defined by the Constitution’s design.

Dred Scott forever!

Most people who read about Huckabee’s pronouncement that Dred Scott remains the law of the land reacted as Medved did: with disbelief.  Me?  I said to myself, “Well, he’s in good company.  Or at least extremely powerful company.”

He is.

Five of the nine Supreme Court justices believe that Dred Scott accurately describes the Constitution’s design not only before ratification of the Fourteenth and Fifteenth amendments but after those amendments became a part of the Constitution.  The Fourteenth Amendment didn’t alter the Constitution’s design one whit, except when it can be invoked to advance an item on the Conservative Legal Movement agenda.  Uh-uh. No way, no how.  See?

John Cornyn, a high-ranking member of the Senate Judiciary Committee, agrees.  Late last fall,shortly after President Obama announced that his choice for Attorney General was Loretta Lynch, the U.S. Attorney for the federal judicial district in New York that includes Staten Island, Cornyn publicly licked his chops.  Lynch earlier had announced that her office was conducting an investigation into possible violations of federal criminal rights law by the police officer who killed Eric Garner, and the other officers who were present, as Garner was being arrested for selling single cigarettes in violation of state law.

This is a local matter, Cornyn said, and indicated that he planned to question Lynch about her use of her federal office to infringe upon the obvious constitutional right of state and local law enforcement—police, judges, prison guards (those directly employed by state and local governments and those employed by corporations under contract with state and local governments in exchange for massive political contributions)—to baldly violate individuals’ most basic civil and human rights.  But it turned out that large swaths of Republicans who are not members of a local Patrolmen’s Benevolent Society actually disagreed. Within 24 hours of Cornyn’s declaration, many of them, including, if I recall correctly, Senate Judiciary Chairman Charles Grassley, and in any event informal Internet commenters and a couple of formal ones, indicated support for the federal probe into the death of Eric Garner.  Cornyn did not question Lych hostilely about infringements of state and local government rights in the federal Garner probe; at least nothing I read about. Neither did any other senator.


So there is a limit to the Mad Hatter definition of freedom, even in the opinion of most Republicans.  Who knew?  (Not Cornyn.)

The Supreme Court, beginning in the late 1970s, has erected a bizarre series of ostensible jurisdictional and quasi-jurisdictional, but fabricated-out-of-whole-cloth, bars to access to federal court in order to challenge as unconstitutional actions by, and occurrences in, state and local court by judges in criminal and life-altering civil matters and by courts, prosecutors, law enforcement officers in criminal and quasi-criminal matters.

Such as minor traffic violations. Such as inability to pay child-support payments in the amounts ordered.  Such as adult-guardianships and conservatorships and child-visitation. And letting your nine-year-old spent time in a nearby park alone.  Even profoundly unconstitutional actions.

These court-fabricated jurisdictional and quasi-jurisdictional bars to access to federal court in order to enforce provisions of the Constitution itself are odd invocations of the Constitution’s design, since the Constitution’s actual design explicitly assigns to Congress, not the judicial branch, the obligation and sole authority to write the parameters of federal-court jurisdiction, and Congress has done so, or rather attempted to do so, in, for example, this statute.  And this one.

Under the Constitution’s actual—actually explicit—design, the sole role of the judiciary branch in determining federal-court jurisdiction is to consider whether a federal-court jurisdictional statute is constitutional, and whether Congress’s failure to provide for federal-court jurisdiction regarding circumstances is itself unconstitutional.  This is of particular importance concerning an infamous jurisdictional statute enacted in 1996 and signed by President Clinton because he feared that Bob Dole would run Willie Horton ads against him in the upcoming campaign if he did not.  The Supreme Court in the last decade—i.e., the Roberts Court era—has (very) effectively rewritten the statute to categorically eliminate the right of habeas corpus in state criminal matters.  Completely.  Ever.

This is a completely unabashed obsession of certain members of the current Court—an unremitting juggernaut lead originally by Anthony Kennedy, in the name of Freedom, and lately by Samuel Alito, in the name of Fascism.  Freedom and Fascism are converging these days.

States’ rights, according to the current Supreme Court, as I’ve said many times here at AB, mainly state-courts’ rights to violate individuals’ rights.  State legislative and executive branches don’t have that right.  The Supreme Court justices never explain why this is so, but as I’ve said before, I think it’s just good old-fashioned professional courtesy.  Affinity fraud, albeit on the public rather than on those with the affinity.  Masquerading as the Constitution’s design.  The Constitution’s habeas corpus provision, like the Constitution’s assignment to Congress rather than the judicial branch of the power to determine the scope of federal-court jurisdiction, is part of the original Constitution.  These provisions are not in Amendments; they are in the original Articles.  In contrast to the Bill of Rights.  And to the Reconstruction Amendments.

The most important of which, for purposes of this post, is the Fourteenth.  Which provides in the two sections that are at the heart of post-Civil War constitutional civil rights:

Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.


Section 5. The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.

Meaning that contrary to what (I suspect) most Americans believe, Congress indeed has broad authority to outlaw the slew of local and state laws and practices that brazenly render the United States Constitution’s vaunted civil rights provisions a Potemkin Village.  They actually protect almost no one against even the most arbitrary and absurd,  and even the most corrupt or brutal, police, prosecutorial, judicial and prison-guard and prison-official actions. Even against judges who openly and routinely violate their own state’s laws concerning bail and fines and fees.

Constitution-as-fraud.  How American.  Presumably, the next time Ruth Bader Ginsburg uses one of her month-long vacations during the Court term, or maybe her months-long summer break as she reportedly did this past summer when she spoke at a conference in Australia on the subject of human rights, to flit around the world and lecture other countries’ leaders in government and law about human rights and civil rights, she’ll explain the relationship between, say, this, and this, and this,  and this, and Supreme Court-created federalism. And Freedom, of course.

She might also identify the constitutional authority that her court has for its admitted venture into policy, entirely absent any claim of constitutional or federal statutory interpretation as a pretext, that exempts law enforcement folks—police, prosecutors, prison guards—from civil rights monetary liability to their victims for blatant violations of their federal civil rights. The Constitution’s design, perhaps?  Nah. The justices themselves concede that this is simply a policy of the sort normally reserved for legislative bodies.  But they think the policy is a wise one.  So, no matter that under the Constitution’s design, they have no authority to simply invent a policy.  In the absence of actual constitutional authority, Ginsburg might identify her reason for failing to mention this in her dissents in these cases.  Maybe she will when she visits Canada or Sweden to lecture them about human rights and civil rights.  They’re northern-climate countries, though, so she’ll have to wait until next summer.  Especially since she has no clothes.

As a supporter of Bernie Sanders’ candidacy and a recipient of his campaign’s listserve notices, I received an email message that discusses a bill he recently introduced in the Senate that would end for-profit prisons.  I had heard about the bill but was under the disappointing impression that it prohibited only the federal government’s use of private privately-owned or privately-run immigration detention centers—the only use the federal government makes of prisons not owned and run by the federal government.  And I had assumed that Sanders limited his bill to the federal government because he thought, as so many people do, that Congress is powerless to address issues of that sort pertaining to state and local governments.  But, happily, I was wrong.  The email says the bill “will bar federal, state, and local governments from contracting with private companies who manage prisons, jails, or detention facilities.”  It will not get Marco Rubio’s vote.

The email goes on to say:

The private-for-profit prison racket is a $70 billion industry, and with so much money at stake, it’s not surprising they’ve corrupted our political process.

The industry has contributed millions of dollars to candidates in pursuit of laws that increase incarceration of nonviolent offenders — a practice that disproportionately impacts people of color in the United States. We must stop the practice of governments guaranteeing prison occupancy as part of deals with private corporations that incentivize states to keep prison cells filled. And we must stop the practice of private companies charging exorbitant rates for prisoners to contact their families by phone — sometimes up to several dollars per minute to talk with loved ones, and charging outrageous service fees to prisoners trying to access their money upon release. That kind of exploitation takes an already difficult family dynamic between husbands, wives, parents and children and strains it even further.

It is wrong to profit from the imprisonment of human beings and the suffering of their families and friends. It’s time to end this morally repugnant process, and along with it, the era of mass incarceration.

I wrote here at AB three or four months ago, shortly after I first learned of contracts with private prison companies that guarantee occupancy, that these contracts strike me as flagrantly unconstitutional.

The Sanders bill, if enacted, will be challenged as an unconstitutional abridgment of states’ rights and, indirectly, of the prison corporation’s Freedom; separation of powers equals Freedom, see, when the separation is between the federal government and state or local governments and it advances some Conservative Legal Movement goal.  Or Republican Party donors’ financial interests. But actually the bill is authorized by none other than the Constitution.  Albeit the Fourteenth Amendment, sections 1 and 5, which don’t actually count.  See Dred Scott v. Sandford, 60 U.S. 393 (1857).*

In fact, the entire panoply of violations that the general public now, finally, is aware of can be addressed by national legislation that indeed controls state and local courts, lawmakers, police and prison guards.  That is what I want Bernie Sanders to know before Tuesday’s debate.   I will recommend some in a (much shorter) follow-up post tomorrow.  It is imperative to expose the states’ rights canard for what it is: a key component of the Conservative Legal Movement’s commandeering of constitutional law, via procedural and fabricated jurisdictional gimmicks, to so completely remove constitutional protections from the vulnerable that, objectively, this country cannot be thought of as a civilized society.  Civilized societies don’t conduct themselves in this manner.  Civilized societies don’t uncouple the word freedom from its objective meaning; their highest court and their legislative bodies don’t use the Mad Hatter’s dictionary.

I also will insert several web links into this post tonight or tomorrow.**  Meanwhile, maybe Bernie Sanders can think about proposing a constitutional amendment that will once and for all end the part of the Dred Scott decision of 1857 that still remains to this day the law of the land which says that black people aren’t fully human.  Or an amendment that says that Mike Huckabee is fully human.  There seems to be a lot of support for the first of these, if not for the latter one.


*Paragraph edited for typo correction and clarity.  Post edited slightly elsewhere, also.  10/11 at 11:10 p.m.

**I’ve added several links. 10/12 at 1:47 p.m.

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Dear Greg Sargent: YOU may not know what Scalia and Alito were up to yesterday. But I do.*

The chief justice said almost nothing.

Supreme Court Appears Sharply Split in Case on Health Law, Adam Liptak, New York Times

Okay, so how well did my predictions from three days ago hold up at the argument yesterday* in King v. Burwell?

Well, I got the outcome right, but not the particulars of how it will occur.  By saying almost nothing, Roberts said everything you need to know: The ACA will remain undisturbed.  He will join with the four Dem justices in an opinion that simply invokes standard statutory-interpretation methods that the Court employs when, say, it’s the Tea Party whose interests that long-established mechanism serves. In, y’know, garbage statutes. There’s no way—seriously; there really is no way—that Roberts would sit through 80 minutes of argument, in this of all cases, almost completely silently, if he intended to vote to interpret the four-word phrase at issue as the statute’s challengers ask.

Roberts will leave Kennedy to his federalism obsession—his bizarre the-Civil-War-and-the-Reconstruction-amendments-are-figments-of-the-political-left’s-imagination claims. (Roberts shares this view, but only as a means to specific Conservative Legal Movement ends, such as nullifying the Voting Rights Acts.)  Sure, the majority opinion will invoke the fancy the-federal-government-can’t-coerce-the-states-not-even-by-subterfuge federalism ground tailored specially for Kennedy.  But it will do so only to undermine the challengers’ belated switch argument: that Congress intended that the subsidies be available only in states that had set up and run their own websites, and that the purpose of the provision in the ACA that provided that the federal government would set up and run websites for individual state healthcare markets in states that do not set up and run their own was to mislead the states about the effect of a failure by the state to set up and operate its own website. (Congress knows better than to try that kind of thing and think it could get away with it! Unless, of course, it knew it wouldn’t get away with it.)  Originally, the challengers had argued that the four-word phrase at issue was an inadvertent error.

Congress’s clever ruse was predictably effective, since, as Kagan, Sotomayor, Ginsburg and Breyer noted, the federally run websites would have no products available and no customers, so the state legislators who bought the head fake weren’t really all that gullible in not catching on.

Then again, as Dahlia Lithwick reported, Scalia commented to Solicitor General Donald Verrilli: “How can the federal government establish a state exchange. That is gobbledygook.”  Which surely it is, since although each state has its own separate insurance market under the ACA, available only to residents of the respective state, the ones set up and run by the federal government were intended to have no actual insurance policies available, or customers to buy policies even if one or two policies should happen to pop up on one of those non-state exchanges.  And Scalia—no fool, he—does now recognize that that could undermine the challenger’s Plan B argument that Congress gamed this all out and decided to lull the states into a false sense that they could default to the federal government the setup and operation of the exchanges, with no ill effects.  Pun intended.  So Scalia needed a Plan B to save Plan B as something he could assert in his dissent.

But Scalia’s pointing this out wasn’t really the main gist of what he was up to yesterday. What he really was up to was having his cake and eating it too. He apparently waited until it was becoming clear that Roberts and Kennedy would do the heavy lifting for him and Thomas and Alito, and then largely reverted to his November 2014 garbage-statutes position—that is, to his pre-January 21, pre-Fair Housing Act case argument comments about how the Court normally interprets complex, multi-section federal statutes that intend to establish a coherent policy.

Well, inadvertent garbage, or instead advertent garbage; whatever. Either scenario works in this silly save-us-from-ourselves-please-while-we-protest-too-much kabuki act.  Just as Sens. Orrin Hatch, Lamar Alexander, and John Barrasso indicated in a Washington Post op-ed published last Sunday that was unabashedly directed to Roberts, Kennedy and Scalia.

Specifically, this trio opened its message with:

Wednesday, the Supreme Court will hear oral arguments about whether the Obama administration used the IRS to deliver health insurance subsidies to Americans in violation of the law. Millions of Americans may lose these subsidies if the court finds that the administration acted illegally. If that occurs, Republicans have a plan to protect Americans harmed by the administration’s actions.

Oh, okay. Republicans have a plan to protect Americans harmed by the administration’s actions that for the last year are providing them with healthcare, by enabling them to continue to have the healthcare insurance that is harming them.  In other words: Please, Supreme Court, save our party’s election chances in 2016, just as we quietly asked you a couple of months back, Antonin Scalia, to do.  But since it takes only one of you to do this for us, the rest of you don’t have to participate.  One sacrificial lamb is all that’s necessary.  The rest of you, write a dissent along the lines of … well, I’ll let Greg Sargent explain:

At oral arguments before the Supreme Court yesterday, two of the conservative justices — Samuel Alito and Antonin Scalia — both floated versions of the idea that, if the Court does strike down Obamacare subsidies in three dozen states, it might not be that big a deal, because surely lawmakers would then fix the problem and avert disruptions for millions.

This had more significance than it first appeared.

Here are the key quotes. After Solicitor General Donald Verrilli claimed that a Court decision against the law would cut off subsidies “immediately,” producing “very significant, very adverse effects” for “millions of people,” Alito suggested that the Court could side with the challengers but delay the ruling “until the end of this tax year.”

That would mean people would not abruptly lose their subsidies; the suggestion was that if the Court did this, the disruptions might not be immediate, and perhaps somehow contingency plans could come together to soften the blow for those millions of people. Verrilli suggested the Court might have this authority, but disputed whether doing this would actually make much of a difference in practice, because many of the states would be unable to set up exchanges — keeping the subsidies flowing — by the end of the year.

Whereupon this happened:

JUSTICE SCALIA: What about Congress? You really think Congress is just going to sit there while all of these disastrous consequences ensue. I mean, how often have we come out with a decision such as the — you know, the bankruptcy court decision? Congress adjusts, enacts a statute that takes care of the problem. It happens all the time. Why is that not going to happen here?

GENERAL VERRILLI: Well, this Congress, Your Honor, I — I –


That was indeed a richly comic moment! But it was also very significant. The conservative Justices implicitly suggested that the consequences of ruling with the challengers — which Scalia himself termed “disastrous,” though there may have been a hint of sarcasm there — are in fact weighing on the Court, and they themselves floated the idea that a legislative fix might mitigate those consequences.

Sargent goes on to say:

I don’t pretend to know for certain what motivated the conservative justices to say this stuff. But here’s a guess: The idea that a legislative solution might soften the disruptions could make it easier for Anthony Kennedy (who appeared torn over federalism concerns, particularly in light of the punishment that might be inflicted on states) and/or John Roberts (who seemed at least open to the idea that Chevron deference should be accorded to the government) to rule with the challengers.

Okay, well, unlike Sargent, I do pretend to know for certain what motivated the conservative justices to say this stuff.  Or at least what motivated Scalia.  He just enjoys cake.  It’s his favorite dessert.  Despite all those calories.  Especially when he has the cake and eats it too.

Kennedy will join the majority’s ruling only in its bottom line: the ACA survives in its current interpretation.  He’ll write a concurring opinion explaining that this is a necessary outcome, in order to avoid so offending the sovereign dignity of 36 states that, in self-defense, they would enter into a military treaty with Russia and attack Washington using an allied force comprised of the Armed Forces of the Russian Federation and the states’ national guard units.  Which itself would violate the Constitution’s design because it obviously would have the effect of coercing the states into increasing their own military budgets significantly.

But Kennedy’s concurrence will be a sideshow.

Laughter.  Applause.  Curtain.


*Typo-corrected to reflect the day that the post was posted (Thursday), rather than the day when I began writing it, which was Wednesday, the day of the argument. The post also has been edited slightly (and typo-corrected elsewhere) for clarity.

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How the Supreme Court’s King v. Burwell Debacle Will End [Addendum added]

I have known for the last five weeks—since January 27, to be exact—that the Supreme Court will uphold the Administration’s interpretation of the federal-subsidies provisions in the ACA when it issues its decision in the infamous King v. Burwell case whose argument date at the Court is Wednesday.  I also have known since then that the opinion will be unanimous, or nearly so, and that Antonin Scalia is likely to write it but if not will join it.

I considered revealing this to AB readers earlier, but feared an F.B.I. inquiry into suspicions that I hacked into the computer system in Scalia’s chambers, so I hesitated.  But it’s now or never—Scalia will make his position clear at the argument, and then I will have lost my one chance, ever, for a career as a Vegas oddsmaker—and I think I can persuade the F.B.I. that I received my information not illegally but instead from a report recounting extensive, pointed comments Scalia made in open court on January 21, in a case that is not about the ACA but is, like King, about the methods the Court uses to interpret lengthy, highly complex federal statutes with multiple interconnecting sections and subsections whose purpose is to establish a cohesive policy.

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Enumerating the Silliness of the Wingers’ ‘Enumerated Powers’ Schtik

Reader Tony Wikrent posted the following comment this morning to my Sept. 20 post titled “Freedom!  Liberty!  And Being For the Little Guy.  As Brought to You By the Conservative Movement.”:

Actually, it turns out that if you are against big government, you ARE against all government. I’m surprised that conservatives who spout the “enumerated powers” argument have not been forced to respond to the historical facts that 1) President George Washington rejected their argument, and lined up with his Treasury Secretary Alexander Hamilton, in supporting Hamilton’s argument for implied powers; 2) first Chief Justice John Marshall, decided in favor of Hamilton’s arguments and rejected the argument used by today’s conservatives and libertarians; 3) Associate Justice Joseph Story, in his Commentaries on the Constitution, argues Hamilton is correct; 4) the Supreme Court has decided a number of times in lesser cases that Hamilton is correct.

But. our immediate concern is the argument that to be against big government is to be against all government. In the landmark case McCulloch v. Maryland: lawyer, William Pinkney, argued before the Supreme Court,

“It was impossible for the framers of the constitution to specify prospectively all these means, both because it would have involved an immense variety of details, and because it would have been impossible for them to foresee the infinite variety of circumstances in such an unexampled state of political society as ours, forever changing and forever improving. How unwise would it have been to legislate immutably for exigencies which had not then occurred, and which must have been forseen but dimly and imperfectly. The security against abuse is to be found in the constitution and nature of the government, in its popular character and structure. The statute book of the United States is filled with powers derived from implication.”

The decision in the case was unanimous, and it was written by Chief Justice Marshall:

“A Constitution, to contain an accurate detail of all the subdivisions of which its great powers will admit, and of all the means by which they may be carried into execution, would partake of the prolixity of a legal code, and could scarcely be embraced by the human mind.”

Marshall was not content to merely render the decision. He felt it necessary to directly discuss and dismiss the arguments in favor of the enumerated powers interpretation, noting “the baneful influence of this narrow construction” which would render “the Government incompetent to its great objects…” In other words, the case indeed, Marshall holds, is that if the national government were encumbered by the enumerated powers argument, it would effectively be powerless to govern, which is, so far as I can see, pretty much the state of things when you have no government at all.

It just amazes me that conservatives and libertarians are allowed to get away with their completely false interpretation of U.S. history in this matter.

The wingers memorize these mantras, cult-like—“The enumerated powers!”; the Tenth Amendment!”; Flat Earth Federalist Paper No. 846!” James Madison! Ichabod Crane!—with no actual understanding of, or detailed background about, what they’re mouthing.  What they’re mouthing is nonsense. Pure and (mindlessly) simple.  These people really do wing it.

So, so much of the Conservative Legal Movement is an outright fraud amounting to a quiet coup.

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The Supreme Court’s opinion in Bond v. U.S. will be about separation of powers. But about separation of WHICH powers?

Update appended. 5/17 at 1:37 p.m.


I’ve written several times in the last three-plus years about a Supreme Court case called Bond v. U.S. Actually, to be precise, Bond v. U.S. is two Supreme Court cases, although it’s only one lower-court case. This is not unusual, but the case itself is; both the facts and the legal issues are downright weird.

The case first came to the Court in 2010 as a “federalism” (states’ rights!) case, albeit a highly unusual one: Unlike virtually every other criminal-law-related case ni which federalism is at issue, the criminal defendant in this case was prosecuted not in state court but in federal court.  She argued, successfully, to the Supreme Court, on “direct” rather than “collateral” review–a distinction that gives federal criminal defendants an actual shot at Supreme Court review in order to clarify, broaden or narrow criminal or constitutional law; state-court defendants have virtually no chance, and are (very) effectively precluded, by the Supreme Court’s extreme (absurd) interpretation of a federal “jurisdictional” statute, from any such opportunity in the lower federal courts–that she herself had “standing” under the doctrine of federalism to challenge the constitutionality of her federal prosecution. Notwithstanding that she is not a state. But she had been prosecuted under a ridiculously broad reading of a federal anti-terrorism statute, of what should have been a state prosecution.

You have “standing” to sue if there is a direct, actual or imminent injury to you that could be rectified by a favorable court ruling on the issue you want to raise.

Kennedy wrote the opinion, in which he wrote: See, I told you that federalism equals freedom! (Okay, I’m paraphrasing. But you figured that out by yourself.)  Federalism , Kennedy said, is the separation of powers between the federal and the state governments.  Which makes us freer.  Even when it means that state courts (in criminal and civil cases) and prosecutors are free to violate individuals’ constitutional rights. (Okay he didn’t say that latter in that opinion, but he and his colleagues say it regularly in other opinions.)

The Court send the case back to the lower federal appellate court for review of Bond’s substantive claim: Was her prosecution under a ridiculously broad reading of a federal anti-terrorism statute instead of as a run-of-the-mill assault under state criminal law unconstitutional under the doctrine of federalism?  And while her case was in the lower appellate court, she argued that the Chemical Weapons Convention Implementation Act–the statute under which she was prosecuted, and which Congress had enacted under it’s “enumerated” constitutional power to enforce and interpret treaties– was unconstitutional because, well, the part of the treaty that Congress had enacted the statute to enforce, at least as interpreted by Congress in enacting that statute, was an unconstitutional power grab by the executive branch, which had negotiated the treaty.  At least as interpreted by Congress in enacting that statute.

Something like that. I am, I hope it suffices to say, not an expert on international law.  I’m, I just say, way more comfortable discussing the usual federalism (states rights!) controversies than even mentioning, say, treaty law. But I will note that the Constitution’s Article II, Section 2, Clause 2, enumerates that the President “shall have Power, by and with Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur.”

Bond lost in the lower court on both her grounds, and the Supreme Court agreed to hear the case again.  The case was argued last November, in the same group of argument “sittings” as Town of Greece v. Galloway.

I had assumed until last week, when Town of Greece was released, that Kennedy would write the opinion in Bond–another ode-to-federalism-because-it-means-freedom opinion–and that Roberts would write the opinion in Town of Greece. (They sort of balance things that way.)  But I was wrong about that. Kennedy wrote Town of Greece and Roberts is writing (or has written; the opinion might be issued on Monday) Bond.  And Vanderbilt law prof. Ingrid Wuerth, who is an expert on international law, writes that she expects it to be a blockbuster.

Wuerth says, if I understand her correctly, that she expects that the opinion will substantially rewrite (i.e., limit) the extent of the federal government’s treaty powers–under some theory of the “structure” of the federal government under the original Articles.

I think it will use a different part of the original Constitution, though, than the one that structures the federal government so that Section 2 of the Fifteenth Amendment, and the habeas corpus provision in the Constitution’s Article I and much of the Fourteenth Amendment (as necessary), are largely nullities. This part of the Constitution, I expect, will have been written not by James Madison, or by Oliver Wendell Holmes (to whom credit will be given, nonetheless), but instead by the Koch brothers, who await this ruling.  The purpose of which will have nothing much to do with terrorism–except the environmental kind that Koch Industries, ExxonMobil, and coal-fired power plants perpetuate.


UPDATE: Reader Mike Hansberry and I exchanged the following comments in the Comments thread to this post:

HANSBERRY:  Your comment puzzles me. If the Court rules that the federal government overreached in prosecuting Ms Bond, that will strengthen Reid v. Covert, which teaches that the Treaty clause does not empower the Pres. and Senate to override Const,. protections, rather than weaken it. In my opinion, the court ought to expand on Reid and say that the Treaty clause does not empower the Pres. and Senate to violate structural principles any more than it allows them to violate enumerated protections.

Moreover the Court could simply say that the treat power extends as far as Missouri v Holland, but no further. So there is no need whatever to for this ruling to have an impact on the law as it stands.

ME:  Your comment indicates that you understand perfectly the point of my post, Mike.  Reid v. Covert indeed teaches that the Treaty clause does not empower the president and Senate to override the Constitution’s protections guaranteed to individual American citizens, in that case, to a U.S. citizen living abroad and tried and convicted, by a military tribunal, of murdering her husband.

I do understand that a major part of the Conservative Legal Movement is to privilege states’ alleged rights over the rights of the federal government and the rights of individuals who aren’t rightwing culture warriors, and attribute this to, as I put it in a new post on this blog, “the Constitution–by its structure, its history, its … whatever.  Whatever, usually being some comment by one of its framers (almost always James Madison, the unwitting mascot of today’s far right), or a pre-Civil War Supreme Court opinion.”

You acknowledge that a ruling in Bond that expands Reid’s “teaching” that the Treaty clause does not empower the president and Senate to override the Constitution’s protections guaranteed to individual American citizens–a ruling that expands it to a “teaching” that the Treaty clause does not empower the president and Senate to override the Constitution’s alleged sovereignty guaranteed to individual states American citizens–would be a clear expansion of Reid’s teaching.  It would, in fact, be not just an expansion but an alteration of the purpose Reid’s teaching, which was to protect individuals, not states, from evisceration of the Constitution’s direct guarantees to individuals.

The question is not whether a treaty can supersede the Constitution’s structure, but instead the right’s claim that the Constitution’s structure is, in essence, the right’s legislative agenda.  That is, the question is: What actually is the Constitution’s structure. In this case–and, really, this case only–a ruling for Bond based on the right’s claims about the Constitution’s structure also would reflect the left’s idea of the Constitution’s structure, but in an entirely different respect.  Carol Bond should win, but because her own individual constitutional rights were violated by a bizarre application of a federal statute.  She should not have to piggyback on some rightwing claim that states, and especially state courts and state prosecutors, are sovereigns whenever they choose to be, including whenever they choose to violate a criminal defendant’s constitutional rights.

THAT would avoid a de facto reversal of what Holmes actually wrote in Missouri v. Holland, as I read that opinion.

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Ah, federalism. Which is in the eye of the beholders. The beholders being Clarence Thomas, Antonin Scalia, Samuel Alito, Anthony Kennedy, John Roberts … and the Koch brothers.

(Correction appended.)

(Clarence Thomas in his separate concurrence]* adds that in his view the First Amendment religion clauses don’t apply to the states in the first place. And it only probably bars the establishment of a national church—leaving open the question for another day.

Let Us Pray:The Supreme Court gives its blessing for prayer at town meetings. Get ready for a lot more Jesus in your life., Dahlia Lithwick, Slate, yesterday

That’s right; the First Amendment religion clauses don’t apply to the states in the first place. No Sir. No way. No how. It’s only the First Amendment’s speech clause that applies to states in the first place.

In the last two years, Thomas and Scalia have voted with their three compadres to strike down Montana and Arizona campaign-finance laws as violative of the First Amendment’s speech clause–in the Montana case in a summary reversal of a ruling by the Montana Supreme Court; that is, without briefing and argument.  The vaunted freedom conferred by federalism (a.k.a., states’ rights!) is somewhat temperamental.  But, whatever.

I strongly recommend the entire Lithwick article, which discusses several parts of the Kennedy plurality opinion, a concurring opinion by Alito, and the Thomas concurrence.  The statements these people make go well beyond the issue in that case, and are truly breathtaking.


*CORRECTION: Originally this post said that Scalia joined Thomas’s concurrence in full. That was incorrect; he joined all of it except the part in which Thomas repeats his belief that the First Amendment’s two religion clauses are not properly viewed as applying limitations to states via the Fourteenth Amendment, through what’s known as “the incorporation doctrine.”  Thomas is the only justice, to my knowledge, to express or support such a view–ever.

As I understand Thomas’s claim, it’s that the Framers’ intent in drafting the religion clauses was to prevent the federal government from stopping the states from adopting a state-sponsored religion. It’s utter nonsense–absolutely fanciful–but it is part and parcel of a key premise of the Conservative Legal Movement’s “federalism” claim: that the very structure of the Constitution itself as set forth in the original Articles is that the Constitution makes states sovereigns and that a threshold purpose of the document is to protect state’s prerogatives from incursion by the federal government–and that this includes the right of state courts in criminal and civil cases, and the right of state prosecutors, to infringe at will upon the rights of individuals.

Kennedy, in fact, actually has written that the structure of the original Constitution trumps Amendments that alter the relationship between the states and the federal government.  Roberts,for his part, made clear last year in his opinion striking down a key section of the Voting Rights Act that he agrees wholeheartedly with this; his opinion in that case, Shelby County, Ala. v. Holder, effectively holds that these folks’ concept of the structure of the original Articles trumps Section 2 of the Fifteenth Amendment.  And it explains the bizarre juggernaut that I wrote about here.

We’re witnessing here a concerted, unremitting restructuring of fundamental parts of American law under the guise of constitutional interpretation, employing medicine-man semantics gimmicks and other such tactics, including baldly false, disorienting declarations stating what others’ opinions are.  The Articles of the Constitution are viewed as really the Articles of Confederation, except when that would limit rather than advance this crowd’s lawmaking or outright partisan agenda.** And they’re getting away with it–and will until the Democrats actually start making it an issue.  My suggestion: that the Dems run ads this election year actually quoting from the opinion in McCutcheon v. FEC and also note the striking down of Arizona’s and, especially, Montana’s campaign-finance laws.  Montana’s statute was enacted in the early part of the last century. – 4/7 at 11:04 a.m.

**I just updated this post again to add “and outright partisan” to that sentence and to link to Thomas Edsall’s terrific op-ed about this in today’s New York Times. This issue is finally getting some mainstream-media attention.  Hurray. – 4/7 at 12:57 p.m.

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George Will Comes Out for Single-Payer Healthcare Insurance! Cool!

WASHINGTON — Someone you probably are not familiar with has filed a suit you probably have not heard about concerning a four-word phrase you should know about. The suit could blow to smithereens something everyone has heard altogether too much about, the Patient Protection and Affordable Care Act (hereafter, ACA). …

The four words that threaten disaster for the ACA say the [federal] subsidies shall be available to persons who purchase health insurance in an exchange “established by the state.” But 34 states have chosen not to establish exchanges.

Four words in the ACA could spell its doom, George Will, Washington Post, today*

Ah.  While George Will’s readers don’t know about the lawsuit and others like it, and don’t know about the the four words at issue, my readers, here on AB, are not so in-the-dark.  The problem, of course, is that my readers are, well, not that numerous.  And George Will obviously is not among them.

To refresh your memory, faithful readers, back on Dec. 3, I posted a detailed post, prompted by a New York Times article that day by Sheryl Gay Stolberg.  Stolberg’s article was titled “A New Wave of Challenges to Health Law.” My blog post was titled “The Antidisestablishmentarianism Theory of Obamacare Illegality. (The ACA has a (dis)establishment clause!  Who knew?).”

I began my post, as I often do for the sake of efficiency (I don’t get paid to write these things. Dan???)**, with a quote from the article that discusses the issue I want to write about.  In this instance, the quote was:

A federal judge in the District of Columbia will hear oral arguments on Tuesday in one of several cases brought by states including Indiana and Oklahoma, along with business owners and individual consumers, who say that the law does not grant the Internal Revenue Service authority to provide tax credits or subsidies to people who buy insurance through the federal exchange. …

The subsidy cases, if successful, would strike at the foundation of the law. Subsidies and tax credits, which could be available to millions of low- and middle-income Americans, are central to Mr. Obama’s promise of affordable care. In drafting the law, Congress wrote that such financial help would be available to people enrolled “through an exchange established by the state” under the law.

“ ‘Through an exchange established by the state’ under the law.”  I wrote:

Hmm.  Okay, let me take a crack at this.  The law gives each state the option of running its own exchange or instead allowing the federal government to run an exchange for the state–an operation that must be done separately for each state, because each state has its own insurance companies offering different policies than other states, and subject to state insurance laws and state agency oversight.

The law doesn’t say “through an exchange run by the state” under the law; it says “through an exchange established by the state” under the law.  The states know their options.  Fourteen of them chose to establish an exchange by setting one up and running it.  The rest have chosen to establish an exchange by delegating to the federal government the job of setting up and running the exchange for the state.

The law itself, in other words, by requiring that each state choose one of two mechanisms to establish an exchange–directly or instead by delegation to the federal government–required every state to have (i.e., to establish) an exchange.  The tax credit, or subsidy, provision of the statute does not limit tax credits (subsidies) to people who live in states that choose to physically set up and run the state’s exchange itself.  It provides that benefit to people regardless of their state of residence, because by operation of law–specifically, by operation of that law–states can establish their exchanges by delegating to the federal government the physical setting up and running of the exchange.

Depends, in other words, on what the meaning of established is.  Or, more accurately, on what Congress intended the meaning of “established” to be.  And I’ve just told you what that is.  Surely, the federal courts understand the concept of contracting out a tech job.  Thirty-six states have chosen to contract out this job to the federal government.  Except, of course, that the contract was not negotiated but instead compelled by law.

Voila!  The antidisestablishmentarianism theory is disestablished.  The tax credits/subsidies clause in the ACA applies even to you, Red State denizens who qualify financially.  Congratulations.  I mean, my condolences.

I do not suggest that this is a slam-dunk.  As Will explains, the IRS, charged with enforcing the statute, has interpreted it as “consistent with,” and justified by, the “structure of” the ACA. By which, Will says, “The IRS means that without its rule, the ACA would be unworkable and that Congress could not have meant to allow this.”

Well, no, actually, what the IRS means is that in the 14 states that have established and run their own exchanges, the entirety of the law that remained after the Supreme Court struck down one part of it–more on that part below, because Will doesn’t understand the legal theory that succeeded in that part of the Supreme Court opinion; he should have phoned one of the legal eagles he mentions fondly before he bandied it about near the end of his column–is working reasonably well, thank you very much.

And that in the remaining 36 states, it’s also working fairly well now that the federal website is working fairly well.

And that if the Supreme Court does take the bait in these lawsuits, and strikes down the federal subsidies to lower- and some middle-income folks and families–who by then will be receiving those subsidies and enjoying meaningful healthcare insurance and the resulting relief from fear of economic hardship or calamity, should they need major medical care (or even just a broken ankle set)–the ruling likely will be the final nail in the federal-programs-via-federalism juggernaut so strongly supported by Republicans until Barack Obama became president.

Yes, as those links show, I’ve written extensively here about the death of federal-programs-via-federalism, courtesy of the Tea Party.  In those posts, I’ve also discussed the probable result of this for healthcare insurance: a major push for single-payer coverage, albeit not as a monopoly. This is a.k.a, “the public option.”

Will and his compadres apparently haven’t noticed that, with the exception of the Tea Party, most people who are concerned about Obamacare are not raging about “freedom!”/“liberty”!  Instead, they complain that their provider networks are too narrow or that the healthcare plan that they “liked” has been cancelled but usually are easily replaced by a plan they like better.

Or would like better if they knew of its availability.  Either because, with subsidies, it’s much less expensive, or because for a small additional cost, it’s much more comprehensive.  And because, well, it or something similar will continue to be available even after they actually make a large claim. Many people who have a pre-existing medical condition and who have feared that losing their job and therefore access to healthcare insurance at all, have some strong opinions about this, too.  Many of them agree that the issue is “freedom! liberty!”

As a liberal who would love to see a public option available to all–a system that uses its near-certain bargaining power to significantly lower healthcare costs and broaden provider networks or eliminate the very concept of it–I say to the justices, “Go for it!”  And as a Democrat, I’ll be licking my chops during the following campaign season, if they do.

Will says that some people argue that “the language limiting subsidies to state-run exchanges is a drafting error.” To which he responds: “Well.”  But he also disputes that the drafting-error claim is accurate. The words “established by the state,” were “carefully considered and express Congress’ intent.” “Congress,” he says, “made subsidies available only through state exchanges as a means of coercing states into setting up exchanges.”

Okay. Except that, well, what exactly is the hammer, the gun held to the head, in the coercion equation?  The states can establish and run their own exchanges or instead choose to allow the federal government to establish and run an exchange for the state; each state, remember, needs its own exchange, because the insurance policy options are for each state alone. Coercion? Really? The state saves money by allowing the federal government to establish and run the state’s exchange.  Our money or our life, isn’t all that coercive. “In Senate Finance Committee deliberations on the ACA, Chairman Max Baucus, D-Mont., one of the bill’s primary authors, suggested the possibility of making state-run exchanges the sole source of subsidies because only by doing so could the federal government induce state cooperation with the ACA,” he says.

I’ll take his word for it.  The problem is that there is nothing inherently problematic with the federal government attempting to induce cooperation with the ACA or any other statute, when there is no penalty to the state for refusing the inducement and failing to cooperate.  Will might want to check out how, say, federal transportation funds usually are distributed.  He doesn’t understand this, though, and the last three sentences of that paragraph run off the rails.

Baucus, he says, suggested the possibility of making state-run exchanges the sole source of subsidies because only by doing so could the federal government induce state cooperation with the ACA, because, um, that way “the law’s insurance requirements could be imposed on states without running afoul of constitutional law precedents that prevent the federal government from commandeering state governments.”


The constitutional law precedents he’s referring to are actually, first, a line of dictum in a Supreme Court opinion suggesting that there is a line, not crossed in that case, beyond which the federal government cannot go in trying to obtain a state legislature’s enactment of legislation, and, second, the section of the Supreme Court’s multipart ACA opinion issued in late June 2012. That opinion upheld all but one of the challenged sections of the ACA as constitutionally permissible use of federal fiscal power, and struck down the part of the Medicaid-expansion section that made continued federal Medicaid funds available to each state contingent upon the respective state’s agreement to expand the Medicaid program under the ACA.

The commandeering of state governments, the Court held, occurred because the Medicaid program, a program in which every state voluntarily participates and that is funded jointly by the state and the federal government, is too popular for state legislators to vote to end. Thus, coercion by the federal government, not because of the federal funds that would be provided to the states for the additional Medicaid coverage but because of the state funds, albeit only a small percentage of the costs of the expansion, that the expansion would require beginning a few years into the expansion program.

The success of this argument dismayed scads of legal scholars and other followers of the litigation. But the theory requires something resembling coercion of state legislators.  A huge part of modern conservative-legal-movement constitutional federalism claims do flip the Constitution’s Supremacy clause upside-down. But, really. No one, not even Paul Clement, at least to my knowledge, claims that the absence of a state veto over legitimate federal legislation constitutes the commandeering of state governments by the federal government, and therefore states must approve federal legislation. The federal government is entitled to use its constitutionally “enumerated” spending power to provide subsidies, in the form of tax credits or in some other form, toward the purchase of private healthcare insurance.  Will’s claim to the contrary is ridiculous.

Will says, accurately, that passage of the ACA required the vote of every Democratic senator. He also says that one senator, Ben Nelson of Nebraska, “admirably opposed a federal exchange lest this become a steppingstone toward a single-payer system.”

Nelson, as a longtime lawmaker, probably is aware of the law of unintended consequences.  Will, by contrast, has never been a lawmaker.


*Link is to a non-pay-wall republication titled slightly differently.

**As we Bears know, Dan Crawford has a sense of humor.  Or did have one.

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Marco Rubio Says Farm Subsidies and Hurricane-Disaster Funds Should Not Be Federal Programs. Really. [Updated and typo-corrected.]

For a senator who likes to hold himself out as the future of the Republican brand, Marco Rubio has come up with a remarkably retrograde contribution to the party’s chorus of phony empathy for the poor: Let the states do it.

All anti-poverty funds should be combined into one “flex fund,” he said in a speech on Wednesday, and then given to the states to spend as they see fit. He actually believes that states will “design and fund creative initiatives” to address inequality.

Rubio Demands States’ Right to Ignore the Poor, David Firestone, New York Times, Jan. 9

The last seven days were Marco Rubio’s lucky week.  And not just because the media-declared frontrunner for his party’s 2016 presidential nomination collapsed as a viable candidate even for local dog catcher, should he need a job by the next presidential election. And not because he was smart enough, unlike some other prominent Repubs and pundits, to recognize how breathtakingly offensive the Bridgegate events are across the political spectrum, and to simply demur from comment.

But also because he gave his big speech on poverty on the very day that the bridge scandal broke nationally, and diverted media and the public’s attention from the speech.  A speech that was, in substance, ridiculous.

Firestone notes some highlights from the speech:

“Washington continues to rule over the world of anti-poverty policy-making, with beltway bureaucrats picking and choosing rigid nationwide programs and forcing America’s elected state legislatures to watch from the sidelines,” he said. “As someone who served nine years in the state house, two of them as Speaker, I know how frustrating this is.”


“It’s wrong for Washington to tell Tallahassee what programs are right for the people of Florida,” Mr. Rubio said. “But it’s particularly wrong for it to say that what’s right for Tallahassee is the same thing that’s right for Topeka and Sacramento and Detroit and Manhattan and every other town, city and state in the country.”

After thinking about this for a few minutes–I read the Firestone piece this morning–I’ve concluded that Rubio is onto something.  I, too, think it’s wrong for Washington to tell Tallahassee what programs are right for the people of Florida. The programs I have in mind aren’t the one’s he’s talking about, but they are nonetheless federal programs that assist certain Floridians.  Such as Floridians who have large financial interests in the sugarcane industry.  And Floridians who live in areas hit every few years with devastation from hurricanes.

A key difference, of course, between programs such as farm subsidies and natural-disaster assistance, on the one hand, and the Medicaid and food stamps, on the other, is that the latter are “federalism” federal-state-partnership programs in which states opt into program and the federal government and the states share the costs, with the federal government paying the far greater share.  Non-federalism federal programs that provide financial assistance to certain constituencies–including wealthy farmers, the sugarcane industry, owners of beachfront properties, and small businesses in hurricane country–are funded entirely by the federal government.

But Rubio’s complaint isn’t the manner in which these programs are funded. Instead, it is that people in Florida and Kansas, unlike those in Michigan, California and New York, who can’t afford enough food and who are ill but have no access to medical care don’t really need enough food or access to medical care. He does, of course, want the federal government to continue to pay the states large amounts of  money.  He just thinks there should be no strings attached.

It’s particularly wrong for the federal government to say that what’s right for Tallahassee is the same thing that’s right for Topeka and Sacramento and Detroit and Manhattan and every other town, city and state in the country. But it’s right for the federal government to continue to give money to the states without determining how the money should be spent.  And particularly right for the federal government to say that what’s right for Tallahassee is the same thing that’s right for Topeka and Sacramento and Detroit and Manhattan and every other town, city and state in the country when doling out farm subsidies, as long as the federal government continues to recognize that what’s right for Florida is huge subsidies to the sugarcane industry.

So, folks, what other federally funded programs do you agree with Rubio and me should be funded by the federal government but should actually not be federal programs?* The Comments section awaits.

And how many of you share Firestone’s and my dismay (so to speak) that the self-styled standard-bearer for future of the Republican Party hasn’t noticed that, whatever else the effects of Obamacare, the law as it has played out spells the end of new federalism-funded social-safety-net programs?  It does, of course, leave intact the non-federalism federal social-safety-net programs, such as farm, logging, and oil-and-gas-industry subsidies.  The Koch brothers need not worry.


UPDATE: In a blog post this morning discussing the Republican Party’s decades-long campaign to institutionalize in American society the demeaning of ordinary workers as unworthy of respect, Paul Krugman highlights Rubio’s take on whether a raise in the minimum wage is important: “Raising the minimum wage may poll well, but having a job that pays $10 an hour is not the American dream.”

Krugman writes:

In a sense, he’s right: if the American dream means getting rich, then $10 an hour isn’t living that dream. But most people aren’t and won’t get rich. Raising the minimum wage would mean higher incomes for around 27 million people; in many cases the gains would amount to thousands of dollars a year, which is really a lot in low-income families. So what are all these people, chopped liver? Well, yes, at least in the eyes of the GOP — or maybe make that chopped losers.

Actually, making a living wage is exactly a central part of the American dream, and while a wage of $10 an hour isn’t really a living wage, it comes substantially closer to one than does $7.25 an hour.  Which may be why it polls well.

*Sentence typo-corrected to insert the key word “not,” inadvertently omitted from original post. 3:08 p.m.

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More On the Real Reason Healthcare Insurance Companies Are Now Encouraging Obamacare Enrollment

In light of some of the comments to my post yesterday arguing that that the real reason that healthcare insurance companies are now madly encouraging Obamacare enrollment is fear of a pro-public-option or pro-single-payer political juggernaut, I want to make clear that by single-payer I do not mean Medicare-for-all.   Single-payer would be, in essence, “the public option” extended to everyone rather than limited to the 5% of Americans who have private healthcare insurance through the non-group (i.e., non-employer-provided) market.  It is not tax-funded identical-for-all healthcare insurance, which is what Medicare is.  I do think that eventually this country will have Medicare-for-all-type healthcare insurance, but not in the near term.  If single-payer works well, then of course that would be the longterm solution, with no need for Medicare-for-all.

I also want to make a point about federalism as it relates to the ACA insurance-market exchanges and, especially, to Medicaid and, for that matter, to any other federal social-safety-network program.  I said in my post yesterday what I think is obvious: that federalism has been a disaster for Obamacare.  But I want to point out that the only reason that Medicaid works under current pre-Obamacare Medicaid is that that program came into being and was effectuated before the hard-right turn of the Republican Party.  Ditto for food stamps.  The really weird, but successful, argument by rightwing governors and state attorneys general to the Supreme Court in the ACA litigation on the Medicaid-expansion provision in the ACA is that, well, y’know, now that traditional Medicaid has been a part of each state’s law for decades, and is popular, it would be politically impossible for state legislators to end that program–the result under the ACA as the statute was written, if a state refused to agree to the ACA Medicaid expansion.  This, they argued–successfully!–meant that the ACA was effectively coercive of state  legislators and therefore infringed upon state sovereignty.  On that “ground,” the Supreme Court struck down that part of the Medicaid portion of the ACA.

That’s also known as the  conservatives-having-their-cake-and-eating-it-to theory of constitutional law.  The argument was so deeply hubristic that its actual success is stunning and outrageous.  But I have no idea why anyone would think that federalism must be a part of a national healthcare insurance law. It does not.

As for whether or not the public will catch on that the main problems with the Obamacare-exchanges-and-private-policies part of the Act is a failure of the healthcare insurance market and of the healthcare market itself–a question that several commenters raised–well, that was what my post was about.  Yes, the public will catch on, once the Dems have a smart, committed, knowledgeable and articulate spokesperson with a high enough national profile to educate them about it.  I expect that that will happen fairly soon.

Finally, although this should be the subject of a separate post, a hallmark of the current Supreme Court is how many really weird, outlandish rightwing arguments the current conservative-legal-movement five-member majority have made the law of the 50-state-soverign-lands.  As I said in an ignored post here last weekend, the Court’s neo-federalism-on-steroids jurisprudence has quietly but profoundly and thoroughly upended federal-in-relation-to-state constitutional law as it had existed since the post-Civil War era. This is a deeply dangerous juggernaut.

I wish more readers would read that post.  It does deal with really important stuff. Honestly.

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The Affliction of Judicial Affluenza [Updated]*

I normally don’t post here about high-profile news stories on which I have nothing, really, to add to what has been reported extensively in news stories or argued in opinion pieces in the mainstream media.  So my first inclination when I saw an email from Dan Crawford yesterday suggesting that I post on the affluenza manslaughter-defense news story out of Texas on Thursday, I said to myself, “Nah. Why bother to repeat the obvious.”

But I clicked the link Dan had sent me anyway.  It was to an article on the ThinkProgress website, titled “How A Teen Successfully Used His Wealth As A Defense For Killing Four People,” by Nicole Flatow and Judd Legum, posted there on Thursday.  I already knew how that teen successfully used his wealth as a defense for killing four people.  I already had read a couple of articles about it, so I knew the specifics of the successful argument made to the judge.  And I know enough about the judicial system in this country to recognize that the reason this argument succeeded was not that the teen has affluenza but that the judge does.

It is a common affliction among American judges and justices in many, many American legal jurisdictions, state and federal, and has been at epidemic levels since the Reagan Revolution of the 1980s.  It is, as it turns out, highly contagious, spreading to state courts and from one federal judge to another from various high-profile members of the federal judiciary, most prominently but of course by no means exclusively, the members of the United States Supreme Court.  The latter have effectively limited access to that court to rightwing state attorneys general challenging grants of habeas corpus petitions by the only two federal appellate courts that still grant them (the Ninth Circuit, based in San Francisco, and the Sixth Circuit, based in Cincinnati) and to corporations and very wealthy individuals represented by one of a handful of Washington, D.C.-based Supreme Court “specialists” whose actual specialty is gaining automatic attention initially from the justices’ law clerks and then from the justices themselves.

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