Post what you want, because it’s what you want when you want it, that’s what I want to be about. I want you to want to self-promote what you want. Let us not be left wanting.
(Drawing by Vera Brosgol).
- It’s Fat People Art Week!!!!
- New bill will let doctors refuse to save the lives of pregnant women.
- An article about the website “Fat, Ugly or Slutty,” a site compiling the abuse routinely taken by female gamers. I was amused by the categories FUS uses, like “Stepford Mentality,” “Unprovoked Rage,” “Sandwich Making 101,” “Jeepers Creepers” and “Wait, what?”
- As Kip said, Donald O’Connor and Gene Kelly were cooler than you will ever be.
- I liked John Corvino’s response to the Robert George et al “What Is Marriage” argument.
- Wormworldsaga is an extraordinarily well-drawn webcomic. He says he expects to update at a rate of a chapter a year.
- Youth Identifying As “Mixed-Race” Doesn’t Make America Post-Race
- It’s often hard to tell mainstream Democrats and Republicans apart, because their views are identical (and identically appalling). Glenn Greewald provides a video quiz: Can you tell the difference?
- Transgender data just got a lot better
- Why The Financial Crisis Inquiry Committee’s report is like Murder on the Orient Express. (Scroll down, it’s the second item in the post.)
- Climate Denialists (and the interests they represent) are too powerful to bother making arguments that aren’t painfully stupid.
- The Impacts of the Obama Administration’s Enforcement Now, Enforcement Forever Immigration Approach
- Ta-Nahisi’s excellent post on Wikipedia and women.
- Have Behavioral Economists Ever Met a Poor Person?
- Prison rape reform moves forward (albeit slowly).
- The tyranny of 1792
- Mike Tomlin’s Super Bowl Return Is Proof Affirmative Action Works
- Alas, it’s not euphemism. Because in real life, the Democrats never even got around to passing an anti-global climate change bill.
- Just how many days does Bill Murray spend stuck reliving groundhog day?
(Source.)
Evolution Made Us All from Ben Hillman on Vimeo.
Damn, Worldwormsaga is gorgeous. Once a year. Fucking great. I’ll be an old man when it’s done!
I wrote a rant on surviving school with a learning disability and crappy teachers.
Speaking of “Hey, here’s a webcomic I like”, has anybody seen Lackadaisy? Or the Dreamland Chronicles?
How many people were voting for the Steelers; how many were voting for the Packers because they otherwise liked them, and how many didn’t really care and were only voting for the Packers because of roethlinger’s rape charge?
I’m surprised to find out how many of my friends are turning out to have also been in the last category.
I would’ve been rooting for the Steelers if they didn’t have a known (though not convicted) multiple time rapist playing QB for them.
In other SB notes:
Worst batch of SB commercials ever. There were a couple that were okay, but the bar is much higher.
Worst sound board operator ever, not that the BEP were any good at all. To quote myself about the sound:
“I’m almost positive that you could grab 50 random people off the streets of Brazzaville and 46 of them would have done a better job.”
Here in Chicago we were cheering for the Steelers. Nobody really cared much about Ben Roethlisburger’s sexual issues. The three middle-aged black women I was sitting with (I was at a party room at a casino, $20 for all you could eat and a cash bar, and people were randomly assigned seating at 5-person tables) commented during the TV discussion of his suspension and reason why “Someone does one wrong thing in his life and that’s all they want to talk about after that.” In subsequent discussion with them their attitudes were “This is why I tell my kids to be careful, because once you do something wrong people won’t let it go”, that they were only talking about this because controversy sells TV time, and basically who gives a shit, let’s get the game started.
Actually, it wasn’t so much cheering for the Steelers as cheering against the Packers. It’s a Chicago thing. We hate the Packers. Hate, hate, hate. If the Bears went 2-14 on the season but both wins were against the Packers people would say “Well, at least they beat Green Bay”. If the Steelers had had Adolf Hitler at QB we’d have still been cheering for them to beat the Packers.
Generally in this context the use of the word “charge” means that legal charges were brought against someone. Is this what you meant? Because in both Wikipedia and during the TV coverage they specifically stated that no charges were brought against him.
People were not happy that the Packers won. OTOH – the casino was running squares. For the international contingent here: a 10 row by 10 column square divides up into 100 little squares. Each column was randomly assigned a digit from 0 – 9 as the last digit of Green Bay’s score, each row similarly for the Steelers’ score. Each square formed by the intersection of a row and a column was numbered from 1 – 100. If the score at the end of a quarter was such that the row and column of the last digits of the scores intersected at your number, you won. My wife completely randomly drew the number corresponding to my Scout Troop’s number. It hit at halftime. She won around $900. If the Steelers hadn’t missed that 52-yard field goal in the 3rd quarter she’d have won again. So that assuaged the pain of the Packers’ victory.
Commercials – I loved the Doritos one where the guy grabbed the finger of the other guy who had been eating Doritos and started sucking on it. I’ll send $100 to the marketing team’s favorite charity if they run it again and have the guy with the Doritos spill them in his lap.
Halftime show: The BEP act was a hash. Why have Slash up there playing guitar if you couldn’t hear him? National Anthem: why is it so hard to find someone who won’t f–k it up when they sing it? America the Beautiful: nice job. Interesting to see players holding their hats over their hearts while she was singing it, since that’s not at all the custom, that’s only the custom for the National Anthem. Was that they way they felt, or were they just confused?
Mind you, I see no reason why we have to soak an NFL game with patriotism, etc. It’s a football game. These are highly paid entertainers, not American soldiers. If I owned an athletic team I’d strip the American flag off of their uniforms. For one thing, it’s disrespectful and a violation of the American flag code to rub the American flag in the dirt. For another, a football team is not the military, it’s not a patriotic organization and the members are not representing the United States. If they want to wear the flag let them join the military or the police or the Scouts.
To the degree that I root for anyone at all in any kind of organized sport, rather than turning my nose up at the whole ordeal and returning to angrily reading Ezra Klein, I was rooting for Green Bay, because:
—Myca
I agree with you in principle, Myca. And it is kind of cool that the NFL title was won by the smallest city in major league sports. There are Chicago suburbs that are bigger than Green Bay, Wisconsin. Because they are publicly owned the owners won’t ever move the franchise and the league can’t. BTW, the league has forbidden any other team to either move to or be created under this kind of ownership form.
But that cuts no ice in Chicago. The history between the two goes back to the beginning of the NFL. Chicago is one of the two charter franchises left in the NFL and the Packers joined the next year – although they existed before the NFL was formed and played the Bears before Green Bay formally joined the league. The two teams have played each other more than any other two teams in the NFL. I believe they have played against each other at least once every year of the league’s existence. It is the NFL’s oldest and most intense rivalry.
Yeah, I gotcha, Ron. I mean, my primary loyalty is to the 49’ers anyhow … because goodness knows that the geographic proximity of a franchised major metropolitan hub to the town where my parents chose to live at the time of my birth ought to be the main determinant here.
—Myca
I tend to choose my loyalties by uniform design.
Re: Tyranny of 1792:
The Federal government, operating under it’s Constitutionally mandated power of creating an Army, Navy and financing and organizing the Militia, defined who was to be a member of the militia and then required them to outfit themselves. Large numbers of people (e.g., younger than 18, older than 45, females, non-whites) were excluded. That is not analogous to requiring every single adult in the U.S. to buy health insurance so as to finance the Federal government’s exercise of a power that is NOT Constitutionally mandated – providing health care to everyone. Nor is it analogous to the bill proposed in Arizona to require all adults to buy guns, regardless of citizenship status, race, sex (or how far over 21 they are) and for the purpose of self-defense (which like healthcare the government has no power to require) as opposed to the purpose of defending the state (which is a mandated state function).
From Balkin, cited in the link:
Public duty? Wherein has the Federal government been granted the power to determine what, outside of those powers specifically granted to it, is or is not a public duty and to require people to contribute to the same? I do think that people have a duty to help those less fortunate than themselves. It is a primary precept of Christianity. But that’s a matter of individual conscience to define the need and the degree that they should give. It’s not a power of the state. The state is not all-powerful.
The powers of the Congress to promote the general welfare are those spelled out in the Constitution.
If the Federal government can decide that anything outside of those things specifically forbidden to it are necessary for the “general Welfare” and can thereby require anyone to surrender the fruits of their labor to finance it, then we do not have liberty. On that basis we are not a free people. We are not citizens, we are subjects or slaves.
That is Mr. Klein’s opinion and he is welcome to it. But the Feds have no business deciding what is selfish and what is not and to put the force of law behind it. That there are necessary governmental functions is clear. That the Founders of this country deliberately designed the Constitution to limit the powers of the Federal government to executing very specific functions is also clear. Outside of those functions the best person to determine the proper disposition of the fruits of one’s labor is the laborer. The concept that somehow the fruits of one’s labor belong to everyone and that their disposition should be subject to majority vote with the laborer left with what the majority thinks they deserve is in my view anti-American.
Actually, Myca, on that basis my loyalty should be to the New England Patriots, not the Chicago Bears. But I wasn’t a football fan at all when I was a kid (other than my high school). Boston didn’t have a pro team when I was growing up until the AFL started up when I was in 6th or 8th grade or thereabouts, and nobody was a pro football fan in my family. When I moved out to Chicago everyone was a huge Bears fan. So I’m loyal to the Boston Red Sox, Boston Bruins, Boston Celtics, and the Chicago Bears. Go figure.
A few trans* related links:
Firstly, I highly recommend the executive summary of the new report (mentioned by Amp above) on the lives of transgender and gender-nonconforming people in the US – it’s only 8 pages, while the full report has 228, and it gives a comprehensive overview of the report’s very depressing findings. Here is a link:http://transequality.org/PDFs/NTDS_Exec_Summary.pdf
Secondly, this week is Trans* Love Week – trans* folks and their allies are being encouraged to submit their creative endeavors that portray trans* people and trans* identities as awesome and cool and all the other good thing they are. (In fact it’s rather similar to the Fat Art Week Project, which I have really been enjoying so far – thanks for the link, Amp!) Here is all the info: http://legalizetrans.tumblr.com/post/2990700336/trans-love-week-a-tranifesto-i-spend-a
Cheers,
April
Ron wrote:
Large numbers of people (e.g., younger than 18, the poor) are excluded from the
Affordable Care Actindividual mandate, so that’s no distinction.As for the Constitutional authority, it comes from the same place as Congress’ right to outfit a militia — Article 1, Section 8, which gives Congress the ability to lay and collect taxes, to “provide for the common Defence and the general Welfare of the United States,” to “regulate Commerce… among the several States,” and to “make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers.”
That doesn’t mean Congress can do anything. Providing universal health coverage is a legitimate part of providing for the general welfare; Health care is part of interstate commerce; finding a way to address the freeloader problem in health care is a necessary and proper part of that. But there remain a zillion things the Federal government can’t do, either because it’s clearly forbidden, or because it has no legitimate connection to the General welfare or to interstate commerce, or because it’s not actually necessary or proper for carrying out a legitimate function.
As for the individual mandate making us slaves: The citizens of Massachusetts have an individual mandate, yet they are not slaves. Slaves don’t get to vote.
Conservatives made these same sort of “it’s the end of freedom in America!” arguments when Medicare was passed. Decades later, the US still hasn’t turned into a police state, contrary to Ronald Reagan’s predictions. Because those predictions were, are are, silly.
Providing universal health coverage is a legitimate part of providing for the general welfare
Arguably correct.
However, the key word is “providing.” That’s not the same as “requiring.”
From a pure legal standpoint, it seems fairly likely that congress could raise federal taxes and then provide health care. The government can provide as it feels necessary for the general welfare.
Though there may not be much practical difference at all, from a pure legal standpoint there seems to be a pretty big difference between the above and a situation in which the government keeps taxes the same and requires you to buy health care.
And that can be an important distinctoin. The government CAN tax me so that I must sell my property to pay my taxes, but it CANNOT simply come and use my property for anything it wants. Etc.
I know that there’s not much love here for his political leanings, but you may be interested in volokh’s take. he is a vert smary guy and the analysis is strong.
G&W is correct. The WAY the government does things is highly relevant; there are the things the government can do in one way which it is forbidden to do in others. Methods matter.
A government welfare program to provide health care to everyone, paid for via taxes, would be perfectly constitutional. It might be politically infeasible (in fact it is politically infeasible, which is why the administration did it this way instead), but is constitutionally OK.
(Heh, maybe this whole debacle was just a brilliant ploy by 3d-laser-chess-Obama to get conservatives like me to acknowledge the constitutionality of a single-payer model, so that they can do some genius political ju-jitsu in 2014 to impose one. But I doubt it.)
Ampersand:
James Madison on the taxing and spending clause:
To summarize, one of the objections to the ratification of the Constitution was that Congress might use the language of the taxing and spending clause to justify doing anything they claimed would provide for the general welfare of the United States, and that this would essentially amount to a blanket grant of power to Congress to do virtually anything. Madison’s response was that this was so obviously not a reasonable interpretation that to offer this as an objection to the ratification of the Constitution was merely scaremongering.
In retrospect, it turns out that the antifederalists’ cynicism was justified and that Madison was overly optimistic. But that doesn’t change the fact that the interpretation you’re arguing for is not at all in line with what was generally intended or expected at the time of ratification.
While I’m not aware of any specific commentary on the power to regulate commerce between the states, the same logic applies there—if said power were intended to encompass anything which could conceivably affect in some way commerce between the states (i.e., just about anything), it would render many of the other enumerated powers redundant.
IIRC, the “individual mandate” takes the form of a tax penalty on not being insured. If you can give someone a tax break for being insured, then why couldn’t you have a tax penalty for not being insured?
You can give someone a tax break for paying interest on a mortgage, i.e., owning a house. Can you have a tax penalty for being a renter? You can give someone a tax break for going to ed school and becoming a teacher (actually a forgiveness of Federally-backed loans, but a tax break would be perfectly OK). Can you have a tax penalty for going to art school and becoming another useless artist? Or for skipping college altogether?
Doug, Barry asked you to stop commenting on this blog.
Brandon beat me to it. The concept is that those legislative powers that are granted to the Congress in order to advance the general welfare of the country are those that are listed in the cited section of the Constitution. The concept is most definitely not that the Federal government has the power to legislate anything that a majority of the Congress thinks will advance the country’s general welfare. To hold the latter turns the Constitution on its head. It destroys the very reason it was written.
For our international contingent – James Madison was a major author of the Constitution and is called by historians the “Father of the Constitution”. The citation is from the Federalist Papers, specifically #41.
When the Constitution was submitted to the States’s legislatures for ratification the State of New York, one of the most populous States, was running about 50/50 on ratification. The opponents feared that it gave the Federal government in general and the President specifically too much power. Their colonial Governor had acted almost as a viceroy. If New York didn’t ratify, others probably would not and the effort would likely fail. So James Madison (subsequently our 4th President), Alexander Hamilton (1st Secretary of the Treasury) and John Jay (1st Supreme Court Chief Justice) wrote and had published in New York State newspapers a series of 80+ essays on what the various sections of the Constitution meant, how the Federal government was supposed to work under the Constitution and why the Constitution should be ratified. They wanted to show that the opponent’s fears were unfounded and that the Federal government’s powers under the Constitution would be limited. The Federalist Papers have been cited hundereds of times in Supreme Court briefs and decisions on the matter of the Constitution. Search on your favorite search engine to find any number of sites presenting the Federalist Papers either on a stand-alone basis or with commentary.
What’d Doug do?
I wouldn’t ask but it’s an open thread, so what the hell.
Robert @19,
Now we just get down to semantics. What if, instead of a tax penalty for not purchasing health insurance, the government gave a tax break for purchasing health insurance? Would that make it okay?
Jake – yes, it would.
Look at that. We’ve solved a great political divide. Get the White House on the phone!
Cancel the phone call, Skippy, we haven’t solved jack. The problem is that the positive incentive, psychologically, will not work to get as many people to buy coverage as the negative incentive does. People respond to pain more than to gain.
In addition, you have to come up with additional funding for a tax credit, whereas a tax penalty is a revenue generator.
The administration isn’t stupid (just feckless), they know all this. There’s no (practical) way to get to where they want to get using the Constitutionally-acceptable mechanisms. If there were, they would have done it that way.
I am going to reply on the Constitutional issues, but it’ll have to wait for a day when I have more time (and perhaps a post of its own).
But this I can answer quickly:
Doug acted very inappropriately on the thread about my Dad passing away, by pushing his crackpot theories about death, even after it was made clear that his comments were very unwelcome. Doug, on that week I encountered one and only one person who acted like an insensitive asshole, and that person was you. Maybe you should think about that.
That said, given Doug’s 300+ comments on this blog (most of which are quite good), I think I was a little rash in banning him from Alas; I should have just banned him from that thread. So Doug, consider yourself unbanned from Alas, but still banned from that one thread.
Welcome to the world of law, where it’s often all about semantics.
And since the constitution is a legal document which is self-referential as far as the means for its interpretation by the Supreme Court, this is going to be a very semantic-heavy argument.
Brandon and RonF,
I agree that the individual mandate is exactly as unconstitutional as social security, the department of education, the federal minimum wage and the air force. None of them are explicitly within the enumerated powers of the US government in article 1 section 8.
Huh?
Social security – pay a tax, get a benefit – falls squarely under the General Welfare clause. The “public option” would have been Constitutional. That’s not the law that got passed, though. The conservative argument against Social Security is that it’s a Ponzi scheme based on flawed demographic assumptions, not that it violates the Constitution.
The Constitution does not direct the executive branch as to how it shall divide up its ministries. Admittedly, there is no explicit Federal role for education – but then, there’s no explicit Federal role for health, either. They can have a Department of Imagineering if they can get Congress to fund it, and can get the courts to accept that making America the happiest place on Earth qualifies as being for the general welfare.
The federal minimum wage falls squarely under the commerce clause, with a 70-year history.
The Air Force argument actually has a shred of plausibility, but the folks at Volokh cover it pretty well.
Charles:
Well, yes, of course. Thefirst three things you list are clearly not authorized by the Constitution. As for the Air Force, that would be an army, would it not?
The purpose of the Constitution was to create a federal government which had the authority and ability to do certain things which were deemed desirable but unable to be performed effectively at the state level, and nothing else.
That’s why, for example, there’s nothing in there about giving Congress the power to punish murder. Yes, we all agree that murder should be illegal, but since every murder is committed in some particular state, this is something that can be handled effectively at the state level.
There’s no compelling reason for the federal government to be involved with things like Social Security, education, or minimum wage. These are all things that can be handled perfectly adequately by state governments. Especially minimum wage—putting aside the questionable wisdom of minimum wages in general, a federal minimum wage that fails to take into account regional variations in price levels is just plain stupid.
Really, this isn’t a liberal-vs-socialist type thing. It’s about due process. The Constitution granted the federal government the authority to do a specific list of things, and no others. There’s a process for giving the federal government new powers:
Why shouldn’t that process be followed?
Robert:
So for 150 years it was unconstitutional, and then seventy years ago, without an amendment, that changed?
No, for 150 years they didn’t have one. Then they implemented one, it was challenged on 10th amendment grounds, and the challenges were knocked down.
My personal PREFERENCE is for a starkly limited Federal government like the one you lay out, but that hasn’t been the country’s preference and the judiciary has consistently found that the Constitution is flexible enough to permit a large Federal machine.
But that flexibility has limits, which we run into quite squarely with the individual mandate. In this context, I am more interested in what the existing judiciary is likely to find Constitutional, than I am with what libertarian purists like you think is actually Constitutional. Your opinions are interesting, but not legally relevant. Justice Kennedy’s opinion is both. :)
Robert,
Thus, why I was replying to RonF and Brandon, and not to you and g&w.
To you and g&w I would say that the individual mandate penalty is an impost, and clearly permitted. The key question would be whether an impost can be levied for non-compliance across a broad class (it isn’t a universal class, since it only applies if you have income above a cutoff), but we already have many required activities for very broad classes. If you are a US citizen and you are employed, you must have a social security number and provide it to your employer. You could also question whether the government can require you to buy something from a private company, but that is already required in many different situations, car insurance for drivers, bonding for people who handle hazmat, etc, etc. So the only question is whether the government can require a broad class of people to engage in a specific commercial activity, and I don’t see any particular reason that there is a bright line here.
On the other hand, I think that it is not impossible that Kennedy might decide to put a bright line here, and call the individual mandate over that bright line. However, I don’t see any way that a state government would have the right to impose an individual mandate, but the federal government would not. Since we are in agreement that this is within the jurisdiction of the general welfare clause, the only question is whether the individual mandate is a necessary and proper method of providing for the general welfare.
However, I don’t see any way that a state government would have the right to impose an individual mandate, but the federal government would not.
The 10th Amendment.
Since we are in agreement that this is within the jurisdiction of the general welfare clause, the only question is whether the individual mandate is a necessary and proper method of providing for the general welfare.
No, there are two basic questions. One, whether an individual mandate is something that the Federal government has the enumerated power to impose. (No, although the courts probably won’t agree with me.) Two, whether the Commerce clause covers non-activity. (No, and the courts probably will agree with me.) I don’t think any of the cases dealing with the individual mandate have relied on the necessary and proper clause; that’s not going to be material.
Charles:
I might think that SS and the Federal minimum wage are unconstitutional if I researched them. There’s been court action on them, so it would be well to read through that before I commented on it. If the Department of Education went away it would be a good start in shrinking the size and intrusiveness of the Federal government. Let the States set and fund their own educational standards without Federal involvement. You can favor a governmental role in education – as I do – without believing that the Feds have any role in it. And the Air Force is simply an army with wings.
I think you’ll find that the requirement to insure a car rests with the owner, not the driver, if they are not the same person. But in any case, if you a) choose to own a car and b) choose to permit it to be operated on publicly funded roadways, then you are required to buy car insurance. By the State. Not by the Feds, even on Federally funded roads. Another example of someone arguing from the left of what appears to be either a confusion on the issue here or a desire to eliminate the powers of the State governments in favor of the Federal government.
Bonding for numerous occupations – same thing. You can avoid that by not choosing to engage in that occupation.
Such choices are not involved in this healthcare individual mandate. You can’t choose the equivalent option of not buying a car or not taking a specific kind of job.
Brandon:
There are some people who genuinely believe that it’s not necessary, that this process is actually Constitutional. For others, it’s because that might mean that the objective would not be achieved and they believe that the ends justify the means. I have more than once been told by a proponent of this kind of thing that they shouldn’t have to amend the Constitution because it’s too hard to do and it’s outdated and doesn’t mean modern needs.