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Thunder in the morning

This morning’s storm was so bad, it woke me up because it was shaking the house.

Which of course made me think of this:

Why did Roberts do it?

From The Nation.

The law’s challengers—and the Court’s dissenters—rejected the characterization of the law as a tax. They noted that it was labeled a “penalty,” not a tax; that it was designed to encourage people to buy health insurance, not to raise revenue; and that Obama himself had rejected claims that the law was a tax when it was being considered by Congress. But Roberts said the question is a functional one, not a matter of labels. Because the law in fact would raise revenue, imposed no sanction other than a tax and was calculated and collected by the IRS as part of the income tax, the Court treated it as a tax and upheld the law.

Chief Justice Roberts did go on to say (for himself, but not for the Court’s majority) that he thought the law was not justified by the Commerce Clause or the Necessary and Proper Clause, because rather than regulating existing economic activity it compelled people to enter into commerce. When one adds the dissenting justices, there were five votes on the Court for this restrictive view of the Commerce Clause. But that is not binding, because the law was upheld on other grounds. And while some have termed this a major restriction on Commerce Clause power, it is not clear that it will have significant impact going forward, as the individual mandate was the first and only time in over 200 years that Congress had in fact sought to compel people to engage in commerce. It’s just not a common way of regulating, so the fact that five justices think it’s an unconstitutional way of regulating is not likely to have much real-world significance.

A few years ago, a team of researchers attempted to build an android replica of the late, great science fiction writer Philip K. Dick. They did a good job but somehow lost the android’s head — the most important part, of course — at an airport. The story is told in a nonfiction book called How To Build An Android, reviewed this week in the NYT. The review makes the Dick android sound amazingly like the first android to run for president, Mitt Romney:

The [android] was a dazzling blend of technology and art. He was also erratic, as you might expect any first-generation android to be. Unexpected questions and loud noises threw him off. Androids have a hard time responding to human speech cues, knowing when to answer and when to stop. Sometimes Phil would get into a self-­perpetuating conversational loop. His handlers — who monitored his responses on a computer screen — had to keep a close eye.

Let’s hope Romney’s handlers are more careful in transporting their android than handlers of the Dick android were.

WTF is wrong with America?

Silhouette Man asks.

That’s the thing about pandering: It often makes you look really, really stupid.

Sen. Rand Paul doesn’t think the Supreme Court gets the last word on what’s constitutional.The Kentucky Republican belittled the high court’s health care decision as the flawed opinion of just a “couple people.”

“Just because a couple people on the Supreme Court declare something to be ‘constitutional’ does not make it so. The whole thing remains unconstitutional.”

Funny story, Rand: That thing you said in a press release that doesn’t make a law constitutional? “People on the Supreme Court declar[ing] something to be ‘constitutional’”? Turns out, that’s exactly how we here in the United States determine whether or not a law is constitutional. And we’ve been doing it that way since the 1700s.

So, to review, the Supreme Court, not embarrassing junior senators from Kentucky, determines what is and isn’t constitutional. For more information, see Article III of the Constitution.

Flu news


MONDAY, June 25 (HealthDay News) — The pandemic H1N1 flu in 2009 may have killed more than 500,000 people around the world, 15 times more than reported, a new study suggests.

During the pandemic, 18,500 laboratory-confirmed deaths were reported to the World Health Organization from April 2009 through August 2010, but as many as 575,400 may have actually died, an international group of scientists now says.

“This is a better approximation of the number of deaths that occurred,” said researcher Dr. Marc-Alain Widdowson from the influenza division at the U.S. Centers for Disease Control and Prevention.

“This study also confirms that the majority of deaths were in the under-65s, which is very different than seasonal influenza, where the vast majority of deaths are in the over 65s,” he added.

Ha ha

People moving to Canada because of Obamacare. Irony, thy name is Tea.


The mandates we love

Jon Perr.

SCOTUS upholds ACA as tax

UPDATE: The opinion is now up. http://www.supremecourt.gov/opinions/11pdf/11-393c3a2.pdf

Update: UPHELD. Not under the commerce clause, but under the taxing authority of Congress.

Via SCOTUSblog:

“Our precedent demonstrates that Congress had the power to impose the exaction in Section 5000A under the taxing power, and that Section 5000A need not be read to do more than impose a tax. This is sufficient to sustain it.”

On the Medicaid issue, a majority of the Court holds that the Medicaid expansion is constitutional but that it w/b unconstitutional for the federal government to withhold Medicaid funds for non-compliance with the expansion provisions.

The key comment on salvaging the Medicaid expansion is this (from Roberts): “Nothing in our opinion precludes Congress from offering funds under the ACA to expand the availability of health care, and requiring that states accepting such funds comply with the conditions on their use. What Congress is not free to do is to penalize States that choose not to participate in that new program by taking away their existing Medicaid funding.” (p. 55)

Hmm. This part is not so good. Removes big stick that permits administration to compel states to comply with Medicaid expansion. Republican governors could be really big problem.
Justice Ginsburg makes clear that the vote is 5-4 on sustaining the mandate as a form of tax. Her opinion, for herself and Sotomayor, Breyer and Kagan, joins the key section of Roberts opinion on that point. She would go further and uphold the mandate under the Commerce Clause, which Roberts wouldn’t. Her opinion on Commerce does not control.

Justice Ginsburg would uphold Medicaid just as Congress wrote it. That, too, is not controlling.
In opening his statement in dissent, Kennedy says: “In our view, the entire Act before us is invalid in its entirety.”

Strikes down mandate. Sort of. “Upheld as a tax.”WTF? Looking for details. No, apparently it’s been upheld. CNN was wrong.

Roberts joins the left of the court in the decision. Medicaid provision is “limited but not invalidated.”

“The exception that the federal government’s power to terminate states’ Medicaid funds is narrowly read.”

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