The Daily Parker

Politics, Weather, Photography, and the Dog

Texas GOP: To One Over Infinity and Beyond!

The Texas Republican Party has published their platform after their recent convention, and...well:

We decry the appointment of unelected bureaucrats, and we urge Congress to use their constitutional authority to defund and abolish these positions and return authority to duly elected officials, accountable to the electorate.

We strongly support the immediate repeal of the Endangered Species Act. We strongly oppose the listing of the dune sage brush lizard either as a threatened or an endangered species. We believe the Environmental Protection Agency should be abolished.

We oppose the teaching of Higher Order Thinking Skills (HOTS) (values clarification), critical thinking skills and similar programs that are simply a relabeling of Outcome-Based Education (OBE) (mastery learning) which focus on behavior modification and have the purpose of challenging the student’s fixed beliefs and undermining parental authority.

We urge that the Voter Rights Act [sic] of 1965 codified and updated in 1973 be repealed and not reauthorized.

We affirm that the practice of homosexuality tears at the fabric of society and contributes to the breakdown of the family unit. Homosexual behavior is contrary to the fundamental, unchanging truths that have been ordained by God, recognized by our country’s founders, and shared by the majority of Texans.

If you're happy and you know it, clap your eyes.

This makes me curious, actually. I might check out the platforms of other states' Republican parties, particularly Illinois'. And the Democratic Party platform here. Updates as warranted.

Court upholds the individual mandate; overturns Medicaid expansion

In my first pass through National Federation of Independent Business v. Sebelius, I am alternately stunned, fascinated, confused, and relieved. The more I think about it, though, the more I realize that big business was the big winner today.

Chief Justice Roberts delivered the opinion of the Court, upholding nearly all the provisions of the Affordable Care Act (aka "Obamneycare"). Justice Kennedy, usually the swing vote, joined on the right-wing dissent.

In a nutshell, the court ruled:

  • The Anti-Injunction Act didn't bar the suit;
  • The individual mandate can stand; but
  • Congress can't cut off Medicaid funds to states if the states fail to expand Medicare coverage.

The Court decided the first two points on mutually-contradictory grounds. The Anti-Injunction Act prohibits people from filing suit "for the purposeof restraining the assessment or collection of any tax." So if the individual mandate is a tax, then no one can sue to stop it until after it actually takes effect. Under the individual mandate part of the ACA, the law says if you don't buy insurance as mandated starting in 2014, you have to pay a "penalty" to the IRS. Well, said Roberts, if Congress says it's a penalty, then it's not a tax, and so the Anti-Injunction Act doesn't apply. In other words, if Congress says something is a horse, then you can't sue it to keep it from flying.

In law school, we learn a Jedi mind trick called "permissibly advancing mutually-exclusive arguments." That is, a lawyer is not only permitted but expected to offer all reasonable theories of a case when making an appeal, even if they don't make any sense when viewed all together.

Say a lawyer is appealing a murder conviction. She may, with the Court's blessing, argue: "First, the judge used the wrong set of jury instructions. Second, the jury was tainted by the prosecutor. Third, the judge improperly let my client's confession into evidence. Fourth, the eyewitnesses who testified they saw my client kill the guy were tainted by the prosecutor. Fifth, the judge should have allowed my client's rabbi to testify. Sixth..."

Obviously, they can't all be true. And a reasonable person (other than a lawyer) might surmise from the arguments that, really, the client's a murderer. This is the sort of thing that (a) makes people hate lawyers and (b) provides us with safeguards against the legal process running amok. It's not obvious to most people, but the ability to make all possible arguments on appeal, even if some are self-contradictory, is much fairer to everyone than trying to guess which one argument will prevail.

After that explanation, it should come as no surprise that the Court found the individual mandate constitutional because it's a tax. Yes, Congress called it a horse; but it's a duck after all, and ducks gotta fly. "[I]t is well established that if a statute has two possible meanings, one of which violates the Constitution, courts should adopt the meaning thatdoes not do so," Roberts said in the Court's opinion today:

As we have explained, "every reasonable construction must be resorted to, in order to save a statute from unconstitutionality." Hooper v. California, 155 U. S. 648, 657 (1895). The Government asks us to interpret the mandate as imposing a tax, if it would otherwise violate the Constitution. Granting the Act the full measure of deference owed to federal statutes, it can be so read....

I should underscore here that the Court said the individual mandate is not constitutional as a regulation of interstate commerce or as a "necessary and proper" act of Congress. This, I believe, is how the four moderate Justices got Roberts on board. Roberts seems like a true conservative. He generally doesn't want to overturn acts of Congress, but at the same time he generally doesn't to expand Federal power. He writes: "The Federal Government does not have the power to order people to buy health insurance. Section 5000A would therefore be unconstitutional if read as a command. The Federal Government does have the power to impose a tax on those without health insurance. Section 5000A is therefore constitutional, because it can reasonably be read as a tax."

Similarly, he overturns the Medicaid expansion program, with its penalty of withholding substantial Medicaid funding if states don't comply, as:

much more than "relatively mild encouragement"—it is a gun to the head. Section 1396c of the Medicaid Act provides that if a State’s Medicaid plan doesnot comply with the Act’s requirements, the Secretary ofHealth and Human Services may declare that "further payments will not be made to the State." 42 U. S. C. §1396c. A State that opts out of the Affordable Care Act’s expansion in health care coverage thus stands to lose not merely “a relatively small percentage” of its existing Medicaid funding, but all of it.

(Emphasis in the original.) He goes on, rebutting a point Justice Ginsburg makes in her concurrence:

The Medicaid expansion, however, accomplishes a shift in kind, not merely degree. The original program was designed to cover medical services for four particular categories of the needy: the disabled, the blind, the elderly, and needy families with dependent children. See 42 U. S. C. §1396a(a)(10). Previous amendments to Medicaid eligibility merely altered and expanded the boundaries of these categories. Under the Affordable Care Act, Medicaid is transformed into a program to meet the health careneeds of the entire nonelderly population with income below 133 percent of the poverty level. It is no longer aprogram to care for the neediest among us, but rather anelement of a comprehensive national plan to provide universal health insurance coverage.

Ah, there it is. The bugbear. The Policy that Will Not Pass: National health insurance coverage.

Roberts' opinion is a grudging concession to the 21st century, not a victory for progressives. His rationales for overturning Medicaid expansion, and for rejecting two good reasons for the individual mandate are designed to prevent a future Congress from moving to a single-payer system in the future. The opinion holds the line on keeping wealth in private hands, which, after all, is the right's principal goal. Private interests—insurance companies—will continue to profit from what ought to be a public service. (Don't forget: big insurance companies wanted the mandate, because it solves a huge business problem for them.)

Today is a win for the American people, and for President Obama; but Roberts, no idiot he, made sure it was a win for the big-business right as well.

(If I have the stomach for it, I'll read the Alito dissent later today.)

Court upholds main parts of ACA

The New York Times just sent me a bulletin saying the Supreme Court has ruled on the Affordable Care Act, so I rushed to the Court's website to find...U.S. v. Alvarez.

In this case, a man falsely claimed to have won the Medal of Honor, and was convicted under 18 USC 704 (the "Stolen Valor Act"), which makes it a crime to lie about receiving military honors. In a 5-3 decision, the court said the act is unconstitutional under the first amendment. Justice Kennedy wrote the court's opinion, joined by Chief Justice Roberts and Justices Sotomayor and Ginsburg; Justice Breyer concurred (joined by Justice Kagan); and Justices (and Republican party operatives) Alito, Scalia, and Thomas dissented.

I'll come back to that—because the Court just announced National Federation of Independent Business v. Sebelius. Let me read this and follow up. Gimme a second.

But what of tradition?

Some misguided people in the ancestral homeland want to rename Big Ben in honor of a living monarch:

London's Big Ben clock tower is to be renamed Elizabeth Tower to mark the queen's 60th year on the British throne.

Prime Minister David Cameron welcomed the name change. "The renaming of the Clock Tower to the Elizabeth Tower is a fitting recognition of the Queen's 60 years of service. This is an exceptional tribute to an exceptional monarch," he said.

Reactions among the public were mixed, however. "Big Ben is so old and iconic, what is the sense in changing its name? All over the world people won't understand what the Elizabeth Tower is," said Romanian tourist Mara Ciortescu.

Hear, hear, Miss Ciortescu. Her Majesty isn't some Emirati despot trying to make a name for herself by, for example, conditioning a huge "loan" on naming rights. She is Queen Elizabeth the Second, by the Grace of God Queen of this Realm and of Her other Realms and Territories, Head of the Commonwealth, Defender of the Faith. She does not need a bell named after her.

I could make a snarky comment about how right-wing politicians often use some patriotic ruse to distract from their abject failure to solve real problems, but nothing comes to mind. Elizabeth Windsor didn't forge the damn bell; neither did Sir Benjamin Hall. The difference is, Sir Benjamin is dead; Queen Elizabeth is not. Naming things after living people, no matter how noble the person in question may be, is simply not done. The Cameron government should know that. I expect the sovereign would agree.

First three major Supreme Court decisions this morning

The U.S. Supreme Court handed down three decisions in the last few minutes that generally change nothing, though one of them was unexpectedly unanimous.

First, in Arizona v. U.S., a unanimous court (except Justice Kagan, who recused herself) agreed that the supremacy and naturalization clauses make Arizona's draconian immigration law unconstitutional. Justice Kennedy wrote the opinion; Republican party operatives Justices Scalia, Thomas, and Alito dissented in part.

In his dissent, Scalia proposes changing U.S. law to allow individual states to exile people:

Today’s opinion...deprives States of what most would consider the defining characteristic of sovereignty: the power to exclude from the sovereign’s territory people who have no right to be there.

What the...? For argument, even if individual states had that power at some point in U.S. history, states long ago gave it up. By "long ago" I mean in 1865, when the principle of national sovereignty was demonstrated conclusively. Scalia quotes from a 1758 treatise and the Articles of Confederation, and the Sedition Act to shore up his opinion. I'd say he's lost his mind but that presupposes facts not in evidence.

Thomas agrees with the result but dissents on the grounds that, well, the supremacy clause doesn't exist. Actually, he finds "that there is no conflict between the 'ordinary meanin[g]' of the relevant federal laws and that of the four provisions of Arizona law at issue here," which makes his view of the relevant statutes—how does one say?—uniquely narrow.

Alito's partial dissent has a little more nuance, but still comes from a belief in limiting federal power and granting states more authority within their borders.

Second, the Court issued a 5-4 per curiam decision (without a signed opinion) in American Tradition Partnership v. Montana, striking down a century-old Montana law prohibiting corporations from spending money on elections. No surprise there; the party hacks simply upheld Citizens United. However, Justice Breyer wrote a short dissent that encapsulates the frustration the non-stooges on the court feel about the majority:

Montana’s experience, like considerable experience elsewhere since the Court’s decision in Citizens United, casts grave doubt on the Court’s supposition that independent expenditures do not corrupt or appear to do so.

Were the matter up to me, I would vote to grant the petition for certiorari in order to reconsider Citizens United or, at least, its application in this case. But given the Court’s per curiam disposition, I do not see a significant possibility of reconsideration.

Finally, the Court ruled 5-4 in Miller v. Alabama that 14-year-old children can't be sentenced to life without parole, no matter what they've done. Justice Kagan delivered the opinion for the rational side of the court, saying the 8th Amendment prohibition of cruel and unusual punishments means that children should have a chance at parole, someday. Roberts wrote the general dissent for the other bunch, with Thomas and Alito offering additional dissents because they weren't happy just voting "no" once. Roberts says that life without parole isn't in itself cruel or unusual; Thomas says the decision violates original intent; and Alito says that some crimes are so big they deserve big punishments.

Stay tuned for the big decision on the Affordable Care Act this Thursday...

Oligarchy watch, part MXVII

James Fallows today suggested a parlor game you can play at home:

This is distilled from a longer item earlier today, at the suggestion of my colleagues. It's a simple game you can try at home. Pick a country and describe a sequence in which:

  • First, a presidential election is decided by five people, who don't even try to explain their choice in normal legal terms.
  • Then the beneficiary of that decision appoints the next two members of the court, who present themselves for consideration as restrained, humble figures who care only about law rather than ideology.
  • Once on the bench, for life, those two actively second-guess and re-do existing law, to advance the interests of the party that appointed them.
  • Meanwhile their party's representatives in the Senate abuse procedural rules to an extent never previously seen to block legislation—and appointments, especially to the courts.
  • And, when a major piece of legislation gets through, the party's majority on the Supreme Court prepares to negate it -- even though the details of the plan were originally Republican proposals and even though the party's presidential nominee endorsed these concepts only a few years ago.

How would you describe a democracy where power was being shifted that way?

I would describe it as a creeping oligarchy, or even, given the party in question, a shuffle towards feudalism. It's nice to know I'm not at home. (And also that James Fallows is a much better writer than I am.)

Oligarchy watch, part MXVI

Continuing my general theme the last few days, the New York Times reminds us what Mitt Romney's biggest backer really wants:

Mr. Adelson’s other overriding interest is his own wallet. He rails against the president’s “socialist-style economy” and redistribution of wealth, but what he really fears is Mr. Obama’s proposal to raise taxes on companies like his that make a huge amount of money overseas. Ninety percent of the earnings of his company, the Las Vegas Sands Corporation, come from hotel and casino properties in Singapore and Macau. (The latter is located, by the way, in China, a socialist country the last time we checked.)

Because of the lower tax rate in those countries (currently zero in Macau), the company now has a United States corporate tax rate of 9.8 percent, compared with the statutory rate of 35 percent. President Obama has repeatedly proposed ending the deductions and credits that allow corporations like Las Vegas Sands to shelter billions in income overseas, but has been blocked by Republicans.

Mr. Obama’s Justice Department is also investigating whether Mr. Adelson’s Macau operations violated the Foreign Corrupt Practices Act, an inquiry that Mr. Adelson undoubtedly hopes will go away in a Romney administration. For such a man, at a time when there are no legal or moral limits to the purchase of influence, spending tens of millions is a pittance to elect Republicans who promise to keep his billions intact.

What title should a man get when he donates $100 million to an election campaign? Would that be worth an earldom or a duchy?

More evidence of creeping oligarchy

I fretted earlier this week about the pattern that has emerged in the U.S., driven primarily by the the Republican Party (though my party isn't guilt-free), to return to the golden age of fiefs and barons. Paul Krugman provided another clear example:

Over the past few days, The New York Times has published several terrifying reports about New Jersey’s system of halfway houses — privately run adjuncts to the regular system of prisons. The series is a model of investigative reporting, which everyone should read. But it should also be seen in context. The horrors described are part of a broader pattern in which essential functions of government are being both privatized and degraded.

[T]he main answer, surely, is to follow the money. Never mind what privatization does or doesn’t do to state budgets; think instead of what it does for both the campaign coffers and the personal finances of politicians and their friends. As more and more government functions get privatized, states become pay-to-play paradises, in which both political contributions and contracts for friends and relatives become a quid pro quo for getting government business. Are the corporations capturing the politicians, or the politicians capturing the corporations? Does it matter?

Do we not remember the phrase "divide and conquer?" As more money and power becomes more concentrated, the competing interests of those without the money and power makes it more and more difficult to form an organized resistance. And by the way, the republican form of government is supposed to be exactly that: organized resistance to power. Krugman's column Friday outlined one way that the right and business interests are attacking republicanism. (Yes, there's irony that the Republican party has done the most to injure republicanism in America.)

Just keep this thought filed away: if your city ever privatizes its police force, move. Immediately.

A pattern emerges

What do you call a system in which:

In short, what do you call a system that concentrates wealth—mainly derived from investments, not from production—in a few hands, keeps it there, and makes it difficult if not impossible for everyone else to better his own condition?

Feudalism.

The United States isn't a feudal country, obviously, but a good chunk of the political and economic elite clearly want it to become one. It's still in our power to prevent this. But I'm less and less confident.

Obamacare's success

The Affordable Care Act has helped 3.1 million people get health insurance:

As a result of the law, the proportion of insured adults ages 19 through 25 has increased to nearly 75 percent.

The Affordable Care Act requires insurers to allow young adults to remain on their parents' family plans until their 26th birthday, even if they move away from home or graduate from school. This policy took effect on September 23, 2010.

"Today, because of the health care law, more than 3 million more young adults have health insurance," said HHS Secretary Kathleen Sebelius. "This policy doesn’t just give young adults and their families peace of mind, it also gives them freedom. It means that as they begin their careers, they will be free to make choices based on what they want to do, not on where they can get health insurance."

And the Republicans want to kill it:

The central pillars of the health care reform law — guaranteed coverage regardless of health status, an individual mandate to buy insurance and subsidies delivered via exchanges — were originally crafted by moderate conservatives and have long enjoyed support in the GOP. But after Obama embraced the template, Republicans ran to the right and abandoned it in an effort to undermine him politically. Now, as they try to sneak back closer to the center, the hard-right base that they’ve empowered is giving them hell.

First came the warning shots from activist groups like FreedomWorks and Club For Growth, which most recently purged the longest serving Republican senator for taking moderate positions in the past. Then came the cries of opposition from conservative legislators in the party. The anger is reflected among high-profile conservative activists who are actively confronting party leaders for straying — and apparently making them nervous.

This is going to be a long 139 days...and I can't wait until the Supreme Court fires off the ACA decision due any day now.