Late Afternoon Links

Thursday, June 28th, 2012
  • SCOTUS upholds Obamacare. Mandate approved, but majority (the four liberals plus Roberts) holds up mandate only as a tax. Another majority would invalidate under the Commerce Clause. The three conservatives plus Kennedy would have struck down the entire law.  If I have time later tonight, I might post a reaction. But I’m already pretty tired of reading/hearing about it. So maybe not. But feel free to have at it in the comments.
  • Elmo’s shame.
  • Amazing, heartening photo.
  • Bottom falls out of latest media effort to whip up a moral panic: The Miami face biter was not high on “bath salts.”
  • Pennsylvania state trooper will face charges for fatal accident he caused while driving drunk. Bonus points: He had just returned from a memorial for a victim of drunk driving.
  • Judge imposes “anti-harassment” gag order on a blogger, orders him to remove all references to plaintiff from blog.
  • Americans trust Obama over Romney in the event of an attack by space aliens.
  • A look at the on-the-ground effects of Tuesday’s SCOTUS decision on life without parole for juveniles.

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42 Responses to “Late Afternoon Links”

  1. #1 |  David | 

    Congressional reaction to the ACA ruling. No matter which side you’re on, that’s amazing.

  2. #2 |  Yizmo Gizmo | 

    “Bottom falls out of latest media effort to whip up a moral panic: The Miami face biter was not high on “bath salts.”
    —— —

    Just like the astronaut woman did not have diapers in her car
    for the purpose of shitting in her pants as he she drove.
    So, I wonder, how/why do Florida news outlets keep taking these insane stories straight from the police, verbatim, without proper scrutiny?

    Inquiring minds want to know.

  3. #3 |  Meister574 | 

    I find it ironic that ObamaCare supporters will have to thank George W. Bush for it being upheld since he appointed Roberts.

  4. #4 |  Irving Washington | 

    I’m trying to think of how that gag order isn’t a prior restraint of speech. Not coming up with anything.

  5. #5 |  MH | 

    Some are saying Roberts made some kind of backhanded rollback of the commerce clause while allowing the mandate to stand as a tax. It’s unclear to me if that is hyperbole/wishful thinking or is this ruling actually auspicious relative to the commerce clause?

  6. #6 |  David | 

    There was no majority to do anything with the commerce clause, since Roberts’ writing on it doesn’t quite line up with Kennedy et. al’s dissenting opinion. Roberts hewed pretty closely to what the Volokh crowd wanted, though – he said there’s no Commerce Clause power to force people to engage in commerce (the activity/inactivity distinction) but drew the line in a way that doesn’t strike down any existing precedent.

  7. #7 |  jnc | 

    “The three conservatives plus Kennedy would have struck down the entire law.”

    Actually Kennedy joined with three radicals who sought to overturn a two centuries of precedent.

    The “conservatives” were the ones who voted to uphold ACA because they recognized that it was well within the traditional taxing power of Congress.

  8. #8 |  Helmut O' Hooligan | 

    “Armed with skid marks and evidence showing Searfoss’ blood-alcohol level was 0.188, police on Monday charged Searfoss with homicide by vehicle while driving under the influence, careless driving, and related offenses.”

    Wait, no attempt to cover up the incident or blame the victim? Oh the FOP will be pissed at this vile attempt to destroy the good name of a “brother officer.”

  9. #9 |  Helmut O' Hooligan | 

    “The much-anticipated toxicology report released by Miami-Dade Medical Examiner Dr. Bruce Hyma found marijuana in Eugene’s system, something CBS4 News had previously reported, but no evidence of any other street drugs, alcohol or prescription drugs, or any adulterants found in street drugs.”

    Well crap. And we have some douche from the police union to thank for the bath salts hype. I suppose now the union boyz will try to make a “reefer maddness” style argument about the dangers of marijuana. Don’t put it past ’em.

  10. #10 |  Other Sean | 

    “But I’m already pretty tired of reading/hearing about it [Obamacare].”

    I’m surprised to find myself feeling the same way. Normally I can’t get enough of things like this, and I’m always the last guy to know when the time has come to retire a topic of conversation. I’ve certainly been talking about this issue for months.

    But today, five minutes after the decision was announced, it suddenly became the least interesting thing in the world to me. I haven’t made it through one full article or blog post. I went to Huff Po with the intent of watching the victory parade there, but I just ended up clicking on a link for trivia about Full Metal Jacket (apparently it almost starred Anthony Michael Hall, which would have been every bit as terrifying as a federal government with unlimited powers).

    Don’t get me wrong. I WANT to care about what is inarguably a major event in American political life. But when I try to get back into it, I swear it’s like trying to finish watching a porno after one has already finished with the purpose of watching a porno. It feels simultaneously disreputable and dull.

  11. #11 |  LBrothers | 

    RE: Pennsylvania State Trooper. Let’s change “unsteady from drinking beer” to “shitfaced and half-blind from pounding down that alcohol.”

  12. #12 |  EH | 

    Helmut: Once in a great while, a case gets out of the FOP’s control.

  13. #13 |  EH | 

    Other Sean: try bath salts.

  14. #14 |  EH | 

    And sorry for multiposting, but can we now hunt down and humiliate the person who fomented the whole bath salts thing? Hopefully they weren’t given anonymity by whatever reporter quoted them.

  15. #15 |  Deoxy | 

    The “conservatives” were the ones who voted to uphold ACA because they recognized that it was well within the traditional taxing power of Congress.

    Except that they explicitly said in the bill itself that it WASN’T a tax.

    Yes, they could have done it as a tax and been in with the crazy-unlimited-yet-long-standing precedent on the matter (no one contests this, even if they think that precedent is wrong), but they DIDN’T. They grabbed for a new power.

    The only way the law stood was by judicial re-write as a tax – that is, the court (Roberts in particular) took the cowardly choice.

    On the plus side, we have 5 Justices who just put a limit on the Commerce Clause – the first such limit since… uh, ever, I think.

  16. #16 |  crazybob | 

    Time to impeach scalia:
    “We have no reliable basis for knowing which pieces of the Act would have passed on their own. It is certain that many of them would not have, and it is not a proper function of this Court to guess which.” And so he concludes he must invalidate ALL provisions!

    He must be senile or simply partisan.

  17. #17 |  Len | 

    Let me use an analogy here, the basketball James Naismith created did not allow for dribbling and used a peach basket, among myriads of other changes. Is the basketball now being played the basketball Naismith created?


    The USC was an agreement between the states for a federal compact. Constitutionality means that as fiduciary agents, no parties to the agreement could use the agency created (federal government) to favor one party over another (general welfare of the UNITED STATES, [note, not people]). There being no higher source of authority to appeal to, each party remained the sole judge of whether that agreement was being upheld, and was not dependent on the other parties as to whether they had to continue within the agreement.

    Lincoln and then the 39th Congress decided otherwise and forced parties to remain in an agreement that was not being used for the general welfare of all parties. This makes the USC a dead instrument.

    Point of the analogy? Just because we still have a “federal” government, does not mean that it is the government authorized under the USC. Yes, I know that this will go over most Americans heads, and that many anti-state libertarians will say “who cares anyway?”, but say what one will, when people continue to act as if the USC is still in effect, rather than acknowledge that the government operates on force and whim, rather than law, then liberty is lost.

  18. #18 |  Zargon | 

    Reaction to the ObamaCare ruling:

    D.C. got what D.C. wanted. The only difference is that this time more people than usual cared, and so D.C. pretended to care about those people caring, which isn’t exactly a new strategy. Not interesting.

  19. #19 |  Leon Wolfeson | 

    @17 – “Reality isn’t real”. You have a codified constitution, this is the inevitable result over time.

  20. #20 |  StrangeOne | 

    I gotta agree with Zargon.

    I’ve only been tangentially interested in the Obamacare debate, because this felt like another one of those “inevitable” issues. All the arguing was just posturing. The deals have been made, checks have been cut, and now everyone was just going though the pretenses of argument to silence opposition.

    No one cares about fixing the health care industry. Fixing health care profits, however, well that’s the name of the game.

  21. #21 |  Other Sean | 

    EH #13,

    Good suggestion. I only took the bath salts ten minutes ago, but already I feel strong enough to eat the face right off of the phrase “facially unconstitutional”.


  22. #22 |  Leonson | 

    What I find horribly amusing is that in making it Constitutional by declaring the mandate a tax, Roberts and the liberals also made it unConstitutional since taxes must originate from Congress and the mandate originated in the Senate.

  23. #23 |  nigmalg | blogger(s) and some other analysts are finding signs that Roberts changed his vote late in the timeline. That is very interesting.

  24. #24 |  DoubleU | 

    re: bath salts
    Still our local paper will have a “possible bath salts” story every day.

  25. #25 |  Elliot | 

    I suppose when the Queen and IRA commander shook hands, it’s a signal that the worst of the senseless (religious-based) violence is in the past.

    But I would find it more heartening if royalty held no political power and terrorist groups who align with communists and Islamic terrorists have none either.

    When an individual commits murder or mayhem, he is generally put in prison or killed. When a government or rebellion do this and the fighting stops, people much worse than the murderers in prison take pictures for the cameras and then continue to hold political sway.

    So, I guess I’d say I find the picture disheartening.

  26. #26 |  (B)oscoH, Yogurt Eater | 

    On Martin McGuinness… Typical f’ing useless Republican. The city of Belfast wants to put down a dog named Lennox because he looks like a “pit bull”, and this clown is shaking hands with the Queen.

  27. #27 |  thefncrow | 

    “What I find horribly amusing is that in making it Constitutional by declaring the mandate a tax, Roberts and the liberals also made it unConstitutional since taxes must originate from Congress and the mandate originated in the Senate.”

    First, you mean originate from the House, not the Congress (which is the term for the combination of the House and Senate).

    Second, the bill number for PPACA in the Senate was HR 3590. If you’re not aware, HR means “House Resolution”.

    The Senate knew revenue-raisers in the bill could bring about that issue, and so as a result they used a hollowed out House resolution as the shell for the bill. Thus, PPACA “originated in the House” for purposes of that requirement, even though the Senate was the first chamber to pass PPACA.

    The fact that it was upheld as a tax hasn’t created any new vulnerabilities for the law, and particularly not one with something as simple as the revenue bill requirement.

  28. #28 |  EH | 

    Deoxy: Funnily enough, Volokh has posted a thread exactly about “b-b-b-but they said…”

  29. #29 |  Mark Z. | 

    Bottom falls out of latest media effort to whip up a moral panic: The Miami face biter was not high on “bath salts.”

    “Also, police report that what he ate was not the victim’s face, but a chicken sandwich the victim had purchased at McDonald’s. We apologize for the confusion.”

  30. #30 |  Bocco | 

    Tampa Fox 13 reported that it was the marijuana that caused the guy to go all wacky, not bath salts. Maybe he was smoking bath bud.

  31. #31 |  Rob | 

    Second, the bill number for PPACA in the Senate was HR 3590. If you’re not aware, HR means “House Resolution”.

    HR 3590 originally had nothing to do with healthcare. What happened was that the senate took the title of the old bill, stripped out its contents and then inserted the PPACA language in order to get around that inconvenient little restriction. It was a blatant end-run around that constitutional requirement, right along with the “deem and pass” bullshit that Pelosi pulled.

    Unfortunately, I doubt the Supreme Court has the cajones necessary to call the Senate on its shenanigans, especially after today, so I doubt a new challenge on that basis would succeed.

  32. #32 |  Rob | 

    Shit. I should have read the rest of your post. Ignore everything before the last sentence of the first paragraph.

  33. #33 |  Narad | 

    So, I wonder, how/why do Florida news outlets keep taking these insane stories straight from the police, verbatim, without proper scrutiny?

    Meh. The suggestion wasn’t exactly implausible, and what would “proper scrutiny” be? Wait for the toxicology? Well, sure. In the meantime, somebody would have arrived at the speculation regardless.

  34. #34 |  thefncrow | 

    “It was a blatant end-run around that constitutional requirement, right along with the “deem and pass” bullshit that Pelosi pulled.”

    It’s absolutely nothing new. It’s been a standard part of the Senate’s operations for quite some time. The House creates a revenue of some bill that they send to the Senate. The Senate takes the revenue bill created in the House and guts it and passes a substitute amended version that contains whatever items require origination in a revenue bill. It’s known as concurring by amendment. It’s just that it only ever seems to be controversial when someone is desperately fishing for some sort of procedural flaw in a bill they hate when they can’t find any better angles.

    And by the way, deem and pass was a fairly standard procedure in the House well before anyone spoke of using it in the health care debate, not that it was even used. The first record of it’s use was in 1933, a tool that was used something like 35 times by the GOP majority in the 109th House, and something that had been used in the passage of major legislation. It’s not anything new and it wasn’t all that controversial until the GOP flipped their lid in the PPACA debate because it might make it a bit easier to pass a bill the GOP didn’t like.

  35. #35 |  Rob | 

    thefn: Just because these procedural tricks have been around for a while doesn’t change the fact that they are blatantly used to do an end-run around the constitution. All that tells me is that it is yet another example of how SCOTUS has almost completely failed in its duty to check the legislative branch for the last 80 or so years.

  36. #36 |  Protective Order Muzzles Blogger | FavStocks | 

    […] interested in the muzzling of a blogger by a judge who cares little about the First Amendment. I saw the story on Radley Balko’s site, noticed that the judge had actually ordered the blogger to take down his posts (!), and had just […]

  37. #37 |  Burgers Allday | 

    More on the Johnstown police shooting story:

    On a related note, there was a nice district of PA court case this week about whether police can shoot at moving cars. Don’t have time to blog it this morning — paying work beckons — but hopefully this weekend. In the new court case the court makes the excellent point that shooting at a moving car increases, rather than decreases, the risk that an innocent person will be hurt by the moving car. Shooting the driver does not generally stop the car.

  38. #38 |  Fascist Nation | 

    George Bush–the original asshole, not junior–got tossed because of new taxes. I think the Supremes, despite their evil intent, may have handed tightly contested races to the GOP—not that the GOP wouldn’t be touting the healthcare plan if Bush had proposed it. Not one member of the GOP voted for Obama’s HC plan and I think the new tax angle (a massive overt and personal one at that) WILL sell at the polls.

    Thanks for pointing out that they rejected the Commerce clause thing. I had not read that anywhere else. That surprises me—I thought that and the general welfare clause justified everything in the eyes of our impartial protectors.

  39. #39 |  Planet Valenti Muzzled: Another Restraining Order Against A Blogger | Popehat | 

    […] Hat tip: Radley Balko. […]

  40. #40 |  Bobby | 

    Rachel Maddow had a pretty interesting take on the decision:

    The conventional wisdom, which was neither conventional nor wise, was that the individual mandate was in deep trouble, but it was unrealistic to think the justices would be so radical as to kill every letter of every word of every page of the law. Such a breathtaking move would simply be unnecessarily radical.

    And yet, as of this morning, four justices — Alito, Kennedy, Scalia, and Thomas — insisted on doing exactly that. The four dissenters demanded that the Supreme Court effectively throw out the entirety of the law — the mandate, the consumer protections, the tax cuts, the subsidies, the benefits, everything.

    To reach this conclusion, these four not only had to reject a century of Commerce Clause jurisprudence, they also had ignore the Necessary and Proper clause, and Congress’ taxation power. I can’t read Chief Justice John Roberts’ mind, but it wouldn’t surprise me if the extremism of the four dissenters effectively forced him to break ranks — had Kennedy been willing to strike down the mandate while leaving the rest of the law intact, this may well have been a 5-4 ruling the other way.

    It’s also worth pointing out that, in his decision, Roberts established the controlling precedent that the Commerce Clause can not be applied to things people are not doing. To do this, he joined in the opinion of the 4 dissenting judges. That was a pretty ninja maneuver.

    Another interesting point: The Supreme Court effectively ended the debate over whether or not this was a tax-hike, by affirming it is, because that’s the only way this could be construed as constitutional. This could, in its own way, but Obama on the defensive. Check this out:

    Sep 20, 2009
    Obama: Mandate is Not a Tax
    ABC News Interview

    GEORGE STEPHANOPOULOS, ABC NEWS HOST: …during the campaign. Under this mandate, the government is forcing people to spend money, fining you if you don’t. How is that not a tax?

    BARACK OBAMA, PRESIDENT OF THE UNITED STATES: Well, hold on a second, George. Here – here’s what’s happening. You and I are both paying $900, on average – our families – in higher premiums because of uncompensated care. Now what I’ve said is that if you can’t afford health insurance, you certainly shouldn’t be punished for that. That’s just piling on. If, on the other hand, we’re giving tax credits, we’ve set up an exchange, you are now part of a big pool, we’ve driven down the costs, we’ve done everything we can and you actually can afford health insurance, but you’ve just decided, you know what, I want to take my chances. And then you get hit by a bus and you and I have to pay for the emergency room care, that’s…

    STEPHANOPOULOS: That may be, but it’s still a tax increase.

    OBAMA: No. That’s not true, George. The – for us to say that you’ve got to take a responsibility to get health insurance is absolutely not a tax increase. What it’s saying is, is that we’re not going to have other people carrying your burdens for you anymore than the fact that right now everybody in America, just about, has to get auto insurance. Nobody considers that a tax increase. People say to themselves, that is a fair way to make sure that if you hit my car, that I’m not covering all the costs.

    STEPHANOPOULOS: But it may be fair, it may be good public policy.

    OBAMA: No, but – but, George, you – you can’t just make up that language and decide that that’s called a tax increase.

    STEPHANOPOULOS: Here’s the …

    OBAMA: What – what – if I – if I say that right now your premiums are going to be going up by 5 or 8 or 10 percent next year and you say well, that’s not a tax increase; but, on the other hand, if I say that I don’t want to have to pay for you not carrying coverage even after I give you tax credits that make it affordable, then …

    STEPHANOPOULOS: I – I don’t think I’m making it up. Merriam Webster’s Dictionary: Tax – “a charge, usually of money, imposed by authority on persons or property for public purposes.”

    OBAMA: George, the fact that you looked up Merriam’s Dictionary, the definition of tax increase, indicates to me that you’re stretching a little bit right now. Otherwise, you wouldn’t have gone to the dictionary to check on the definition. I mean what…

    STEPHANOPOULOS: Well, no, but…

    OBAMA: …what you’re saying is …

    STEPHANOPOULOS: I wanted to check for myself. But your critics say it is a tax increase.

    OBAMA: My critics say everything is a tax increase. My critics say that I’m taking over every sector of the economy. You know that. Look, we can have a legitimate debate about whether or not we’re going to have an individual mandate or not, but…

    STEPHANOPOULOS: But you reject that it’s a tax increase?

    OBAMA: I absolutely reject that notion.

  41. #41 |  Bobby | 

    Oops, forgot to include the link to Maddow’s post:

  42. #42 |  Leon Wolfeson | 

    @25 – Territorial violence. As always. Land and water rights. So sorry you view the symbols of ceasing this as negative. (Ironically, this is very much an accomplishment of Tony Blair, but Iraq rather than NI is what he’ll be remembered for…)

    @27 – Most parliamentary democracies have a requirement that the content of the bill stay within it’s “long title” (full title). Sadly, America doesn’t.