With ObamaCare About to Pass, Elena Kagan Wrote to Harvard Plagiarist Laurence Tribe to Exult !!

She should recuse herself from hearing any case involving ObamaCare.

David Harsanyi weighs in here:

Nor, as we learned this week, is it reassuring to find out that while the House was debating passage of Obamacare, Kagan and well-known legal scholar Laurence Tribe, then in the Justice Department, did a little dialoguing regarding the health care vote, and according to documents obtained by Media Research Center, Kagan wrote: "I hear they have the votes, Larry!! Simply amazing."

Nothing says impartiality like double exclamation points!!

As ObamaCare Goes To The Supremes, Will It Stand Or Fall On Tax Grounds?

The individual mandate which is at the heart of ObamaCare insists that everyone buy health insurance in every state.

Once the mandate was challenged by opponents after passage, however, the Obama regime quickly began defending its penalties as a tax, which it was loathe to do in selling the law to the public for political reasons. While the law contains tax provisions, the penalty associated with not securing coverage is not a tax.

The tax argument raises important constitutional questions of fairness and substance. If the penalties really are taxes, aren't also the premiums, since the penalties take their place? And will everyone in every state pay the same premium tax for coverage? If some pay only the penalty, which is low compared to the premium, doesn't the law enjoin inequity?

Another question is whether anyone can avoid the tax. This in turn touches on the distinction between direct and indirect taxation. If the tax can be avoided, it is an example of indirect taxation which is permissible, but which must still be uniform. If it cannot be avoided, then the tax must be apportioned according to population so that everyone, rich and poor alike, everywhere pays the same tax, which would be easy for the rich, but not for the poor. But presumably under ObamaCare plans will vary from state to state as they do now, with premiums which vary according to coverage, so Americans will be forced to pay, and pay unequally.

Consider the income tax. If you take no ordinary income in the form of salary and wages, you are not liable to pay it. Wealthy individuals regularly take income in the form of capital gains, which is taxed under different rules with lower rates than ordinary income. The same avoidance obtains when taking income from municipal bonds and other tax-free bond investments. In important respects the federal income tax is thus indirect, and therefore does not need to be apportioned according to population.

Similarly with excise taxes. If you choose to drink wine over spirits the tax you pay per bottle will be substantially less for wine. You pay the tax on the wine, but you have avoided the tax on the bourbon. But if you drink neither at all, you avoid the excise taxation altogether. Hence the popularity of stills.

Some of these points get an interesting airing here as they apply to Obamacare:

The legal wrangling over whether a particular tax is direct or indirect, as Willis and Chung discuss, has been complicated and persistent for more than two centuries. In 1794, for example, Congress passed a tax on carriages, which opponents considered a direct tax and thus invalid because it was not apportioned by population. The Supreme Court found it was an indirect tax on the use of carriages, valid so long as it was uniform.

Obamacare imposes an annual penalty of $95 per adult, or 1 percent of income, whichever is greater, in 2014. The annual penalties are the greater of $325 or two percent of income in 2015 and the greater of $695 or 2.5 percent of income in 2016 and subsequent years.

Willis and Chung argue these are not indirect, but instead direct taxes, unconstitutional because they are not apportioned by population. It could also be argued, though, this provision is a mixed bag. The fixed annual penalty portion, for example, could be viewed as indirect and uniform and thus constitutional, while the income percentage amounts could be deemed direct but not apportioned and thus unconstitutional.

The tax could therefore be unconstitutional for those who pay income percentages but constitutional for those who pay a fixed penalty. This may be a ridiculous and unprecedented view, but it does illustrate the complexity of this issue—leaving us with a tangled legal web indeed.

The ruling of the Supreme Court is expected next June after oral arguments in March 2012.

Fireworks are expected.

Direct Taxes Are Limited To Taxes on Land and Improvements, and to Capitations

According to the opinion of Chief Justice Salmon Chase in Veazie Bank v. Fenno, 1869:

The question before the Supreme Court in this case was the constitutional validity of an act of Congress in 1866 imposing a 10 percent tax on the issuance of circulating bank notes by nationally chartered banks or by state chartered banks. ...

Chief Justice Salmon Chase delivered the opinion of the Court. The Court held the tax to be constitutional. ...

Chief Justice Chase turned to the historical record.

He pointed out that Congress had enacted taxes that were acknowledged to be direct. Those taxes were enacted in 1798, 1813, 1815, 1816, and 1861. In each instance the sums collected were apportioned among the states. The subjects of those taxes were, variously, lands, improvements, dwelling-houses, and slaves. Chief Justice Chase pointed out that Congress never considered taxes on personal property, contracts, or occupations to be direct taxes. He observed that slaves were not an exception because, even though many of the slave states had considered slaves to be real property, slaves were, of course, persons and subject to a capitation, which was direct.

Therefore, Chief Justice Chase concluded, Congress understood direct taxes to be limited to taxes on land and improvements, and capitations.

-- Alan O. Dixler, 2006 (here)

Stinging Blow to ObamaCare Delivered by 11th Circuit Court of Appeals

As reported here:

A divided three-judge panel of the 11th Circuit Court of Appeals ruled Friday that Congress overstepped its authority when lawmakers passed the so-called individual mandate, the first such decision by a federal appeals court. It's a stinging blow to Obama's signature legislative achievement, as many experts agree the requirement that Americans carry health insurance — or face tax penalties — is the foundation for other parts of the law and key to paying for it.

The case will go next before either the full 11th Circuit or the US Supreme Court.

Mexican on Death Row Since 1994 Brutal Murder Finally Executed, Despite Obama

The AP has the story here:

A Mexican national was executed Thursday for the rape-slaying of a San Antonio teenager after the U.S. Supreme Court turned down a White House-supported appeal to spare him in a death penalty case where Texas justice triumphed over international treaty concerns.

Humberto Leal, 38, received lethal injection for the 1994 murder of Adria Sauceda. She was fatally bludgeoned with a piece of asphalt.

In Saudi Arabia he would have been bludgeoned with a piece of asphalt, in 1994.

Bush Appointee to 6th US Circuit Court of Appeals Tilts Ruling in Favor of ObamaCare

Thanks George you mushy headed liberal.

The ruling was by a three judge panel. The Reagan appointee voted against the healthcare mandate, while a Bush appointee and a Carter appointee voted for it, proving once again that W, who aimed to redefine conservatism in his own image, was no friend of the right.

Plaintiffs can appeal to the full, currently 15 member, 6th circuit court, or to the Supreme Court.

The story is here.

Switch Hitters Nullify Softball Victory

"U.S. District Judge John Coughenour ruled Tuesday that the organization [North American Gay Amateur Athletic Alliance] has a First Amendment right to limit the number of heterosexual players, much as the Boy Scouts have a constitutional right to exclude gays."

More here. 

If the case goes to the Supreme Court, will she recuse herself?

Justice Now Means Exposing the Public to Criminals Due to Overcrowding

Your Supremes in action.

Nothing could be more wrong than being treated without "dignity"? How about murder? Rape? Armed Robbery?

Reminds me of Draco. When he couldn't think of a more appropriate punishment, death was ordered.

The Supremes have just committed the analog to zero tolerance in the schools, but in reverse. No crime is too bad to have to suffer claustrophobia!

We are doomed.

Story here.

Supreme Court Rejects 8 Bank Clearing House Appeal on Loan Disclosures

The decision, which is moot as to future disclosure requirements because of the disclosure requirements under the Dodd-Frank legislation, will require that the Federal Reserve disclose loans made at the discount window in 2008. The story, excerpted below, is reported by Bloomberg here:

The order marks the first time a court has forced the Fed to reveal the names of banks that borrowed from its oldest lending program, the 98-year-old discount window. The disclosures, together with details of six bailout programs released by the central bank in December under a congressional mandate, would give taxpayers insight into the Fed’s unprecedented $3.5 trillion effort to stem the 2008 financial panic.

To Forgo Something is Acting, Says Judge Kessler

But National Review's Rich Lowry is having none of it, here, responding to this statement by Kessler:

"It is pure semantics to argue that an individual who makes a choice to forgo health insurance is not 'acting,' especially given the serious economic and health-related consequences to every individual of that choice. Making a choice is an affirmative action, whether one decides to do something or not do something." ...

Long ago, the Commerce Clause got stretched beyond recognition. In 1942, the Supreme Court used it to uphold a law penalizing a farmer for growing wheat in excess of his approved allotment, even though it was for his own consumption. At least the poor sap was doing something. According to Kessler, Congress could also punish him for acting on a thought not to grow wheat.

Opponents of ObamaCare say that if it's blessed by the courts, there will no longer be any limiting principle on federal regulatory power. If that seems far-fetched, behold the mental activities of one Judge Gladys Kessler.

Which begs the question, Isn't Kessler's reasoning a residual influence of the Christian religion on matters of state?

Christianity teaches that there are plenty of sins of commission, but also of omission, as per Paul's letter to the Romans, and the letter of James. By refusing to purchase health insurance, by Kessler's reasoning, one is almost committing a sin against the state, of, by and for the people, who will have to bear the costs of paying for the deadbeat's omission.

At the Last Judgment the offender would be punished in hell, but in the Immanentized Eschaton which ideologues are trying to foist upon us, he'll just pay a fine.

Virtue should be so easy. 

I Guess That British Kid Who Told Obama He was a Pussy was Right

Matthew Franck weighs in here with an excellent discussion of Obama's concession to judicial supremacy in the case of DOMA:

Obama is the "un-Lincoln," a president who would rather hint, and wheedle, and pine for an eventual Supreme Court ruling in favor of same-sex marriage, than forthrightly assert the equal standing of each branch of government to act on its own understanding of the Constitution. He makes no challenge to the reigning doctrine of judicial supremacy. Obama is instead the Court's courtier, surrendering the dignity of his office, and the legislative power of Congress, to a hope that the Supreme Court too will "evolve" in its view, change the effective meaning of the Constitution, and foist same-sex marriage on the American people with an authority more difficult to challenge than that of a mere president.

Mr. Franck rather likes Mr. Lincoln. But even if olde Abe was an acute practitioner of a constitutional departmentalism now lamentably in decline, the War Between the States proves that correct interpretations of some things do not always protect us from fanatical interpretations of others. There's only one Trinitarian monotheism.

On the British kid, see here.

Police in Austin, Texas, Deploy WASP to Reconnoiter Suspect's House

Story here in The Washington Post:

So the Texas agents did what no state or local law enforcement agency had done before in a high-risk operation: They launched a drone. A bird-size device called a Wasp floated hundreds of feet into the sky and instantly beamed live video to agents on the ground. The SWAT team stormed the house and arrested the suspect. ... Among state and local agencies, the Texas Department of Public Safety has been the most active user of drones for high-risk operations. Since the search outside Austin [in 2009] ... the agency has run six operations with drones, all near the southern border, where officers conducted surveillance of drug and human traffickers. ... In a 1986 Supreme Court case, justices were asked whether a police department violated constitutional protections against illegal search and seizure after it flew a small plane above the back yard of a man suspected of growing marijuana. The court ruled that "the Fourth Amendment simply does not require the police traveling in the public airways at this altitude to obtain a warrant in order to observe what is visible to the naked eye."

WASPs are made by AeroVironment, Inc.

You will have nowhere to hide from the tyranny, unless you stop it now.

Obama: When Life Begins Was "Above My Pay Grade"

But not now:

Today marks the 38th anniversary of Roe v. Wade, the Supreme Court decision that protects women's health and reproductive freedom 

[at the expense of someone else's life],

and affirms a fundamental principle: that government should not intrude on private family matters

[like buying health insurance, giving food and water to the chronically hospitalized, eating hamburgers and french fries for lunch, smoking cigarettes around your kids, spanking them, purchasing and using trigger locks . . . and once upon a time selling your slaves' children to the highest bidder].

I am committed to protecting this constitutional right


[except for the aborted child]

[which by the way was never intended by the framers of the 14th Amendment, but I digress].

I also remain committed to policies, initiatives, and programs that help prevent unintended pregnancies, support pregnant women and mothers, encourage healthy relationships, and promote adoption

[all of which are an intrusion on private family matters].

And on this anniversary, I hope that we will recommit ourselves more broadly to ensuring that our daughters have the same rights, the same freedoms, and the same opportunities as our sons to fulfill their dreams

[except for fatherhood and the right also to kill their unborn children].

-- Barack Insane Obama, January 22, 2011, here

In August of 2008, here, deciding when a baby is entitled to human rights was above his pay grade.

Obviously it isn't now. A baby isn't entitled to protections. A father isn't either. Only a woman is. That's what Obama is all about, not equality of rights, but special rights for protected classes of human beings. And that makes him no different than the slave holders of the past.