Digby's Hullabaloo Posts

Rule ‘O Law

by digby

Of course. If it’s Thursday it must be time for armed revolution:

The former spokesman for the Michigan Republican Party sent out an email that said armed rebellion was justified over the Supreme Court ruling upholding Obamacare.

Matthew Davis, an attorney in Lansing, sent the email moments after the Supreme Court ruling to numerous new media outlets and limited government activists with the headline: “Is Armed Rebellion Now Justified?”

Davis added his own personal note saying, “… here’s my response. And yes, I mean it.”

“There are times government has to do things to get what it wants and holds a gun to your head,” Davis said. “I’m saying at some point, we have to ask the question when do we turn that gun around and say no and resist.

“Was the American Revolution justified?”

When contacted, Davis said the key word was “justified.” He compared armed rebellion to a situation where the government cannot get your money by way of liens or seizure of bank accounts is coming to arrest you for not paying an unconstitutional tax.

“You can’t have people walking with lattes and signs and think the object of your opposition is going to take you seriously,” Davis said. “Armed rebellion is the end point of that physical confrontation.”

Fergawdsdakes. This “tax” is about the lamest, most unenforceable “tax” you can possibly think of:

What if your failure to obtain health insurance means you owe the penalty but you nonetheless refuse to pay it? That’s where things get tricky. The IRS can’t throw you in jail, because the health reform law explicitly states (on Page 336): “In the case of any failure by a taxpayer to timely pay any penalty imposed by this section, such taxpayer shall not be subject to any criminal prosecution or penalty with respect to such failure.”

Nor can the IRS seize your property, because the law states (also on Page 336) that the health and human services secretary may not “file notice of lien with respect to any property of a taxpayer by reason of any failure to pay the penalty … or levy on any such property with respect to such failure.”

As Jost pointed out on the New England Journal of Medicine’s Web site, these restrictions would appear to pose a greater threat to enforcing the individual mandate than any nullification attempts by the states. “Compliance,” Jost wrote, “will … belargely voluntary (although the IRS can still make a tax resister’s life miserable, whether or not it can ultimately collect).” State legal challenges, though unlikely to sway federal courts, might nonetheless “be seen as invitations to civil disobedience that counsel state citizens to ‘violate the federal law, wave this statute in their face, and dare them to come after you.’ ”

Which, in this instance, the IRS can’t do.

Seriously wingnuts, get a grip. You can put on your little costumes and strap on your six guns and pretend you are being oppressed, but the truth is that this just isn’t that big of a deal.

If they really want to stand-up-fer-freedom, you’d think these guys would suit up and defend the legal pot growers who are having all of their assets seized by the federal government on a daily basis. That seems like something worth getting up in arms over.

Update: Oy Vey

Mike Vanderboegh, the ex-militia blogger who calls himself one of the “midwives” of the Operation Fast and Furious scandal, recently predicted that if the Supreme Court declared the health care reform bill to be constitutional, it would lead to violent insurrection against “government tyranny.”
[…]
In the excerpts Vanderboegh posted on his blog “which deal with the decision today,” he says of a then-potential decision upholding the health care law, “You may call tyranny a mandate or you may call it a tax, but it still is tyranny and invites the same response.” He further predicts the response of his ilk: “If we refuse to obey, we will be fined. If we refuse to pay the fine, we will in time be jailed. If we refuse to report meekly to jail, we will be sent for by armed men. And if we refuse their violent invitation at the doorsteps of our own homes we will be killed — unless we kill them first. … I am on record as advocating the right of defensive violence against a tyrannical regime.”

CNN’s interpretive SCOTUS dance

by digby

I realize that this is a very peripheral issue today, but since people are alking about, I might as well too. CNN is taking a boatload of criticism because they blew it big time when they prematurely declared that the mandate had been ruled unconstitutional. It sent a bunch of people scrambling for a while.

But here’s the thing. They — and others — did exactly the same thing with Bush vs Gore, remember?

In the confused minutes after the flummoxing, unsummarized decision came down, its meaning depended on what network you were watching. On MSNBC, Gore was toast. On CNN and Fox, he still had a chance. ABC’s Jackie Judd and Jeffrey Toobin, asked for their instant read by Peter Jennings, reacted as if served a baked rat. (“I’m going to turn it over to Jeffrey Toobin,” she offered; “I was hoping to turn it over to Jackie,” he demurred.) NBC’s tag team of Dan Abrams and Pete Williams flipped madly through the opinions, looking with their topcoats, windswept hair and booklets like Victorian gentlemen caroling in legalese. On CBS, Dan Rather–trading spin with analyst Jonathan Turley though neither had read the ruling–was adamant on one point: those of us on Eastern time would definitely see Judging Amy when this report was over.

But the real judicial drama was right in front of us. It was a perfect ending to Postelection 2000, in which a creaky 18th century legal-political process ran smack against the more!-faster!-now! demands of 21st century media. Fast news, like fast food, requires prep work, and modern journalists have grown accustomed to pre-leaked and -summarized stories, the better to plan coverage and scare up file video. But like the DMV, the Supreme Court doesn’t consider lack of patience on your part an emergency on its part. Without explanation, it delivered to the media a President wrapped in an enigma.

So the special reports turned into an impromptu bar exam, a live speed-reading contest in which reporters jumped to conclusions, sometimes qualified and sometimes not. Most networks first seized on the majority opinion, which seemed to imply that Gore might pull off a new recount. Rather said flat-out, “What [the ruling] does not do is in effect deliver the presidency to George Bush.”

Except, of course, that it did, as his peers realized as they read on. Some measured up well. Abrams and Williams sussed in a few minutes that Gore had run out of time. But it was excruciating to watch CNN, where legal analyst Roger Cossack stalled pitiably for time as anchors Bernard Shaw and Judy Woodruff pressed him to draw a conclusion, while the clock ticked and rival MSNBC sounded taps for Gore. “So are you saying,” Woodruff asked, “it appears that a recount could take place?” “Yes,” he finally answered–an ultimately incorrect analysis the network stuck with well into the hour–though he pleaded futilely that it would be “irresponsible” to answer definitively before reading the whole ruling.

Obviously, Cossack didn’t get the memo–responsible doesn’t sell. After election night, when the networks botched the call of Florida twice, this was their last, best chance to get it right. So they applied what they learned from November. Namely, nothing. Again, they chose being fast over necessarily being right. And this time they didn’t even have the excuse of bad data. The answer was in their chilly little hands; they just decided not to digest it before reporting. In general, they pulled off a remarkable feat of deadline analysis. Thing is, that used to be what you did after you absorbed the facts.

The supreme chaos was testimony to TV news’s inability to utter three little words: “We don’t know.”

This morning I didn’t bother turning on the TV. I went to the Scotusblog live blog, along with over half a million other people at the time, and waited for some real analysis. And guess what they said while CNN was declaring the mandate unconstitutional?

It’s very complicated, so we’re still figuring it out.

Blogs-1, MSM-0

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No health care now!No health care tomorrow! No health care forevuh!

by digby

Uhm, Jim DeMint is telling states to just ignore a Supreme Court ruling if it doesn’t like it:

“This government takeover of health care remains as destructive, unsustainable, and unconstitutional as it was the day it was passed, unread, by a since-fired congressional majority. Now as then, our first step toward real health care reform and economic renewal remains Obamacare’s full repeal, down to the last letter and punctuation mark.

“I urge every governor to stop implementing the health care exchanges that would help implement the harmful effects of this misguided law. Americans have loudly rejected this federal takeover of health care, and governors should join with the people and reject its implementation.”

We’ve been here before, (with the constitutional federal mandate denials.) I’m sure the good Senator from South Carolina is aware of it too.

Love those states’ righters …

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The basics of the ruling

by digby

In plain English, from Scotusblog:

Amy Howe: In Plain English: The Affordable Care Act, including its individual mandate that virtually all Americans buy health insurance, is constitutional. There were not five votes to uphold it on the ground that Congress could use its power to regulate commerce between the states to require everyone to buy health insurance.

However, five Justices agreed that the penalty that someone must pay if he refuses to buy insurance is a kind of tax that Congress can impose using its taxing power. That is all that matters.

Because the mandate survives, the Court did not need to decide what other parts of the statute were constitutional, except for a provision that required states to comply with new eligibility requirements for Medicaid or risk losing their funding. On that question, the Court held that the provision is constitutional as long as states would only lose new funds if they didn’t comply with the new requirements, rather than all of their funding.

This is just the upshot. There’s a lot in there that needs to be parsed by the legal beagles. More later as I read around the tubes.

Meanwhile, if you want to have some fun, watch Fox News this morning …

Update: Here’s Erick Erickson with a first reaction:

I’m disappointed by the decision, but not terribly surprised given I had no idea which way it’d go. I do take away a few things.

First, John Roberts’ opinion seems to clearly suggest he wants to keep the Supreme Court out of political fights and was willing to destroy his reputation with conservatives to do it.

Second, this forces everyone to deal with the issue politically. The President and Democrats did, according to the Court, impose a tax increase. Because it is a taxation issue, the GOP now, should it take back the Senate, have even more grounds to deal with the matter under reconciliation, bypassing the 60 vote filibuster threshold.

It’s a big win for the President and a bad day for freedom. But we can deal with it. It is not the end of the world, the republic, or freedom. It just means we have to fight harder.

In the meantime, following Obama’s lead on illegal aliens, I think Mitt Romney should declare that if he is President he’ll seek “prosecutorial discretion” to not go after people who don’t pay their individual mandate tax.

Update II: I’m reading this sort of analysis around the internet from a variety of people so I’m guessing this is a fairly good grasp of just how wily John Roberts is:

[T]here might be an even bigger win engineered by Roberts here. Remember your Marbury v. Madison. In that case, Chief Justice John Marshall gave President Madison what he wanted. But while giving the President what he wanted, Marshall established the right of judicial review and that ended up being a much bigger deal than Marbury’s silly appointment.

Here, let’s not forget, Roberts said that this was beyond the power of the Commerce Clause. When was the last time that happened? It’s a huge limitation on the power of the government under the Commerce Clause, and we might be seeing the ripple effects of that for years…

If this is going to be the Chief Justice’s legacy, it is a pretty good one. The talking heads are reacting to the politics of it, but for the Court, this is all about legitimacy. It’s a legitimacy that the Court lost with Bush v. Gore. But now we can clearly say that Bush v. Gore was “the other guy.” That was the Rehnquist Court. And Rehnquist isn’t here anymore.

This is the Roberts Court. And here, we’ve got a pro-business Court that interprets laws as constitutional when it can. Roberts found a way to keep this law in-bounds — without abandoning his conservative principles on the expansion of federal power. The conservatives “disappointed” with Roberts today are being silly and can’t see the long game here. The Commerce Clause has been limited AND the Court looks non-partisan. Beat that with a stick.

I’m not sure Bush vs Gore goes in the dustbin. But I am willing to say that John Roberts seems to care more about the legitimacy of the Court than William Rhenquist did. And that’s, frankly, a welcome surprise. I’m not crazy about the idea of an unelected tribunal being seen by the people as the only legitimate branch of government, but I suppose it’s better than no branch of government having any legitimacy.

If this really is yet more whittling down of the Commerce Clause that’s probably going to be a problem down the road. On health care, though, I have no problems calling the mandate a “tax.” It is. (Of course, if you’re going to be called a tax and spender anyway, why not have single payer…)

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$9 billion gone. Will anyone care?

by David Atkins

Remember how the financial crisis was supposed to have taught the big money boys such a powerful lesson that they would never overleverage themselves again? Ahem:

Losses on JPMorgan Chase’s bungled trade could total as much as $9 billion, far exceeding earlier public estimates, according to people who have been briefed on the situation.

When Jamie Dimon, the bank’s chief executive, announced in May that the bank had lost $2 billion in a bet on credit derivatives, he estimated that losses could double within the next few quarters. But the red ink has been mounting in recent weeks, as the bank has been unwinding its positions, according to interviews with current and former traders and executives at the bank who asked not to be named because of investigations into the bank…

As JPMorgan has moved rapidly to unwind the position — its most volatile assets in particular — internal models at the bank have recently projected losses of as much as $9 billion. In April, the bank generated an internal report that showed that the losses, assuming worst-case conditions, could reach $8 billion to $9 billion, according to a person who reviewed the report…

More than profits are at stake. The growing fallout from the bank’s bad bet threatens to undercut the credibility of Mr. Dimon, who has been fighting major regulatory changes that could curtail the kind of risk-taking that led to the trading losses. The bank chief was considered a deft manager of risk after steering JPMorgan through the financial crisis in far better shape than its rivals.

“Essentially, JPMorgan has been operating a hedge fund with federal insured deposits within a bank,” said Mark Williams, a professor of finance at Boston University, who also served as a Federal Reserve bank examiner.

A spokesman for the bank declined to comment.

Of course, a bank using its deposits to fund risky speculation is exactly what Glass-Steagall, the Depression-era law preventing institutions with regular insured deposits from making speculative gambles, was designed to prevent. Just nine years after Glass-Steagall was eliminated, an unprecedented crisis was precipitated by banks taking insured deposits and investing them in collateralized debt obligations, supposedly insured with nearly infinite amounts of ultimately worthless credit default swaps. In the wake of the crisis JPMorgan, supposedly among the most responsible of the financial institutions, just lost $9 billion of supposedly safe assets on the Wall Street roulette wheel.

And yet there is still no serious legislative pressure to reinstate Glass-Steagall. It’s as if none of this ever happened. In fact, we have a majority of representatives in the House who still claim that we need to reduce regulation of the financial sector.

Historians will look back one day and remark that we lived in a period of gargantuan corruption. It’s just that regular Americans don’t notice it because the customs official and police officer aren’t asking for bribes as they do in less developed countries. But make no mistake: at the top of the chain, the American government is as corrupt as any banana republic.

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Murdoch splits the empire

by digby

There will be no more confusing Fox News with Fox Entertainment. They’re splitting the company:

News Corp.’s board unanimously approved a plan to split the media conglomerate in two pieces, separating its lucrative entertainment operations from its publishing business, said a person familiar with the situation.

The board made the decision after a meeting in New York Wednesday evening that lasted roughly an hour and a half, the person said. News Corp. Chairman and Chief Executive Rupert Murdoch spoke at the meeting and financial advisers made presentations to the board. The person said many details such as who will run the publishing business have yet to be resolved. The split is expected to be formally announced early Thursday morning.

One company will house entertainment businesses like 20th Century Fox, Fox broadcast network and Fox News Channel while another houses the publishing assets, which include The Wall Street Journal and the Times of London along with HarperCollins book publishing and News Corp.’s education business.

Makes perfect sense, doesn’t it?

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What do billionaires really want?

by digby

Scary factoid of the day:

Super PAC mega-donors continued to dominate the independent spending playing field in May as their percentage of total giving to super PACs increased.

There are now ninety-five donors or collections of related donors that have given more than $500,000 to super PACs, according to a review of reports filed on June 20 with the Federal Election Commission (FEC). Those donors had given $153.6 million through the end of May…

Wealthy donors giving $500,000-plus provide the vast majority of contributions to super PACs. Through May, their contributions accounted for 71 percent of all super PAC contributions. That’s up from 61 percent through the end of January.

This doesn’t count the money they gave to the 501-cs like Rove’s American Crossroads that don’t require naming their donors.

It’s obscene but I had to laugh when I read this:

This high percentage of contributions coming from six- and seven-figure donations has led to concerns about the profound effects this new normal of campaign fundraising could have on who the government listens to in the future.

“Candidates in the future are going to know what actions and which votes are going to bring out these tens of millions of supportive spending and which votes are going to trigger millions of dollars of opposition spending,” says the Brennan Center’s Skaggs. “It’s the effect on governance that should give us real cause for concern.”

Uhm, yeah. Maybe someone should look into why all these people are spending this vast amount of money. It would be nice to know what the real agenda is going to be after November.

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So, we’ll be dead, so what?

by digby

Oh my goodness, who could have ever predicted?

Britain had a larger budget deficit than economists forecast in May as the recession depressed tax receipts and government spending surged.

The shortfall, which excludes government support for banks, was 17.9 billion pounds ($28 billion) compared with 15.2 billion pounds a year earlier, the Office for National Statistics said in London today. Economists forecast a deficit of 14.8 billion pounds, according to the median of 16 estimates in a Bloomberg News survey. Spending jumped 7.9 percent and revenue rose 1.6 percent. Income-tax receipts fell 7.3 percent.

So slashing the government during a recession in order to lower the debt actually creates more debt? Shocker.

I would imagine that none of the Austerians will lose any sleep over it, however. When faced with the human suffering they’ve caused and shown the proof of their folly they will simply say, as these sorts always say, “things will get better eventually and that will prove that in the long run we were right.” And you know what they say about the long run …

Update: Also too, this.

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The path forward for single-payer

by David Atkins

The always excellent Dave Dayen at Firedoglake analyzes the pathway forward for single-payer healthcare/Medicare for all, regardless of the Supreme Court’s decision on Thursday:

However, if the ACA gets thrown out – even if just the mandate is stricken – the forces continuing to push for single-payer in California plan to make a big splash. Progressive organizations like the Courage Campaign, as well as NNU’s state Chapter, the California Nurses Association, plan to reintroduce an effort to pass single-payer at the state level, as the best option to providing quality, affordable health care for all citizens. Rick Jacobs, the head of the Courage Campaign, said he would like to see a broad-based coalition, including community groups dealing with a broken health care system on the ground, come in on this effort.

There’s an active bill for the single-payer framework, SB810, in the hands of state Senator Mark Leno. California’s legislature has grown a bit more moderate on the Democratic side over the years, and single-payer actually failed to garner a majority by two votes in this legislative session, unlike in 2006 and 2008. But the single-payer campaign would presumably make that a litmus test in future elections.

This would be a long road, however. Because of the 2/3 requirement for any tax increases in California, you could not pass any revenue-raising measures inside the single-payer bill without Republican support, which isn’t coming. So the idea has always been to pass the bill, and then put on the ballot a funding mechanism for single-payer in the next election. The ability to use federal funds for a single-payer system, by pooling funds from Medicaid and SCHIP and other sources, would be limited until the waiver to provide ACA-compliant coverage hits in 2017. So you’re talking about five years at a minimum before single-payer could approach reality in California.

I’ve been saying this for a long while, but Medicare for all simply is not going to happen at the federal level, probably for a generation at least. The dynamic that Digby mentioned earlier, in which seniors dramatically oppose extension of Medicare benefits to those who haven’t “earned” them, is one factor. Another is the overwhelming opposition of healthcare business interests to the idea. Hacker and Pierson have noted, too, the ratchet effect of conservative opposition to such things at the federal level: there are numerous points at which such legislation can be blocked, from the House to the Senate filibuster to the Presidential veto to the various subcommittees and now, increasingly, to the conservative activist Supreme Court. All of which means that the chances of passing Medicare for all at the federal level are very dim.

But that’s not as true of the state level in more progressive states. California is such a few good legislative votes short of being able to pass a single-payer system. If California and a few other states can get it done and make it work successfully, it can roll out via the states, ultimately providing a big moral and economic boon to the blue states that do it. Pressure would ultimately mount for Congress to make it universal throughout the country.

Unfortunately, that doesn’t much help the progressive or simply down-on-their-luck family in Oklahoma. But it’s better than despair or false hope in a federal solution that isn’t coming.

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Anticipating the other side

by digby

I’ve always been a fan of “Medicare for all” and I think that if the Court strikes down Obamacare tomorrow, liberals should organize around the idea. But I’m with Ed Kilgore on this point and it’s very important that everyone understands what that means:

[T]he idea of making Medicare universal—even if it initially gains a positive response in public opinion—is going to run into some serious heavy weather once specifics are discussed and criticism begins.

As I’ve argued for a good while as others wondered why Republicans have been able to pit Medicare beneficiaries against those benefitting from ACA, many and perhaps most seniors receiving Medicare do not perceive the program as a social good that government gives them, but as an earned benefit—earned through lifelong payroll taxes, premium payments (once retirement age is reached), and more abstractly, through a lifetime of work that is performed before eligibility is reached. Extending “Medicare” to “all” would change that assumption rather dramatically, particularly with respect to younger beneficiaries (including children) who haven’t “earned” much of anything, from the point of view of seniors. The GOP talking points write themselves: Liberals want to give YOUR Medicare to THOSE PEOPLE! If “Medicare For All” is vastly easier to understand than ObamaCare, then so, too, are the racial and generational arguments against making it available to darker and younger people as opposed to just “cutting” Medicare (or setting up “death panels”) to give something new to THOSE PEOPLE. I’m afraid anyone who thinks a universal Medicare would be as popular as the current Medicare is missing this important if unfortunate point.

Now I don’t see this as reason not to do it. If Obamacare is found to be unconstitutional, I suspect it will require that the employer sponsored health care system break down to such an extent that most Americans are affected before we take another wack at it. It’s likely to take a while and during that time liberals have a huge job ahead of them to make people understand the moral imperative of universal health care. They really need to make sure that the libertarian/conservative cant that led to people shouting “yes” and applauding the idea of letting people die at the Republican presidential debates, is shown to be the inevitable result of our unwillingness to embrace universal health care.

I do think that most people are either morally repelled by that “yeah!” or are smart enough to realize it could one day be themselves in that position to eventually understand this. But they haven’t made the connection between that and the necessity for a commitment to universality. A campaign for “medicare for all” could be a great vehicle to make that case, but it shouldn’t be done with eyes closed to what the reaction from the right would be.

In fact, this campaign should be done regardless of whether the Supreme Court knocks down the ACA tomorrow. The moral arguments must still be made to ensure that the reforms are strengthened rather than weakened. It’s the right thing to do no matter what. But it won’t be easy.

Update:

Exhibit A: libertarian economist Tyler Cowan:

A rejection of health care egalitarianism, namely a recognition that the wealthy will purchase more and better health care than the poor. Trying to equalize health care consumption hurts the poor, since most feasible policies to do this take away cash from the poor, either directly or through the operation of tax incidence. We need to accept the principle that sometimes poor people will die just because they are poor. Some of you don’t like the sound of that, but we already let the wealthy enjoy all sorts of other goods — most importantly status — which lengthen their lives and which the poor enjoy to a much lesser degree. We shouldn’t screw up our health care institutions by being determined to fight inegalitarian principles for one very select set of factors which determine health care outcomes.

There you have it. Poor people dying is part of what makes our system so great. Why mess with success?

Do most Americans agree with that? I’d like to know.

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