Happy New Year!

Oh wait.  Wrong Janus. Have a good '12 all.

Detainee Provisions of the National Defense Authorization Act

Marty Lederman talks about the title issue, linking David Cole in his two part discussion. Both, though less Cole, notes some good stuff in there, partially thanks to Obama. ML in effect says part of the good is a matter of discretionary policy that can change.

Dreaming the Impossible Dream

This is my quest
To follow that star
No matter how hopeless
No matter how far

Years ago, the dreamers were Giants fans.  Giants this year, even though they went into a swoon mid-season, have things a lot easier.  Win and get in.  Then, they have a decent shot at winning a playoff game, the 49ers, Saints and GB (perhaps in reverse order) being favored from the second game on, but who knows -- the Giants played GB tough last time and remember what happened when something like that occurred before. It would be easier if they won another game earlier, but given what they were expected to do even before the injuries (over the Eagles, deemed credible Super Bowl hopefuls), the season as a whole was decent. 

This time, the Jets are the dreamers, and the best that can be said is that there are less steps than last time.  The Jets even have a bit of margin for error.  I was told that it is something of a fools' errand to push for underachievers to go too far, since they are after all not very good.  Yes, and the Jets -- who unlike the Giants didn't have a truly impressive game against tough competition other than perhaps the Dallas game -- weren't very good this year.  But, they still are the local team, and the alternatives for the last slot aren't exactly much better in any real sense.  Oh well.

[1] Jets beat Miami.  Miami, who barely lost to Dallas on Thanksgiving, started the season horrible, but has played fairly well of late.  They are in fact favored to win the game here.  I think the Jets should win the game, particularly since they are playing for their pride as much as anything.  But, as with all of these games, it can go either way.

[2]  Bengals lose to the Ravens.  More than one team is hoping for this, since a win will seal up the final wild card spot for the Bengals.  Wild card positioning is also important in the NFC, since it will determine who plays New Orleans at home (unless the 49ers lose to the Rams, New Orleans won't have bye because, rofl, they lost to the Rams and Tampa) .  Ravens should win here.  They are the better team, the Bengals have not played tough AFC competition well and the Ravens are playing for a bye.

[3] Titans lose to the Texans.  First, Titans also needs a lot of help and ironically it would be helpful for them if the Jets win.  Second, this is a harder game for the Jets, since the Texans no longer can advance in the standings and have less to play for.  The Texans are coming back to earth  and the Titans have a lot more to play for.  OTOH, the Texans might want to get back to winning to be in the right frame of mind.  Finally, of course, it would have been helpful if the Titans lost to the Jaguars last week.  It would be helpful to the Colts draft pick for the Jaguars to win.

[4] Oakland (San Diego) or Denver (KC) lose.  If the Jets win, this along with the first two is what the Titans need with a win; if the Jets lose, the Titans need both these two to lose.  Good luck Jets fans!  You only need one of these teams to lose.  The Chargers had a disappointing season but have the talent (and perhaps sense of pride) to win.  KC wants to end on a good note (though beating GB was their Super Bowl of sorts), their new coach perhaps playing for a long time contract and their QB wanting to show Denver what they gave up.  I can see one of these teams losing.

If, as is after all likely, the Jets don't make it, I can see it because #3 not happening.  The Jets got in 9-7 with a lot of help in '09.  It actually won the division because of tiebreakers in '02 with that record.  (A three way tie with Buffalo being 8-8 ... talk about parity.)  It went to the third round for the second time in a row in '10.  They are allowed a pass, even though it was a disappointing season.  Good luck.  Keep dreaming. 

Writing Techniques

From one of our friendly cute smart Internet chicks we learn about irony here.   Another talks, topical!, about "gifting" over here. 

Blue Like Friday, a young adult book, provides this definition of "metaphor" from one of the young leads:

It's when you say something is something else only you don't mean it's actually something else, it's just that a bit of the meaning of the something else sort of rubs off on something you first thought of.

Metaphors are used by poets.  Poets never say things are "nice."  They always find better ways to say ordinary things.  That's what poetry is for.  Thanks for the info, Olivia. 

Language Lesson?

Life keeps on tossing you a curve-ball.  I borrowed a book from the library and suddenly it turned German for a chapter and a half.  Not intentionally. Have gone to the library for decades.  Don't recall that ever happening.  NYPL is great overall though.

Odd Clauses Again

I noted earlier that Odd Clauses has some annoying lapses.

A book like this -- around two hundred pages with broad margins covering ten provisions -- is not going to be totally substantive and will now and then summarize or skip over something in ways that might bother one a bit.  It is something like when someone writes an article or relatively short paper (to speak personally, back when) on a case that others have written books about.  Thus, the Third Amendment skips over a few interesting citations, like this one, and in the notes of the chapter about the one full-fledged appellate case, In Our Defense is not listed, even though it has a chapter on the very issue. 

Such things are understandable, if at times, one wishes some detail or other was included.  The book is restrained, as noted, by its limited length, shorter than his not that long first book even though if anything more stuff has to be covered (the other book about but one clause). The remainder has enough interesting stuff and lessons to make it well worth reading. And, the subjects should not be obscure. After all, recess appointments are a major concern (quibble: more on how filibusters and judicial independence are affected by short term appointments could have been added, even a page on each) these days. 

Still, the book has various comments and asides of the type, not including the humor and partisan comments that annoyed a few at Amazon, that touch my buttons. This sort of thing comes up in various books and are of the type that are unnecessary asides that are better left out or at least not taken to be as crystal clear given that they are repeatedly disputed.  Toss in untrue comments (the "freedom of contract" was not first cited in Lochner and given the Contract Clause alone, it has some connection to the text beyond merely be a "liberty" interest), and ... red flag alert!

For instance, though a strong liberal, the denunciation of not only the penumbra/emanations language of Griswold but the "oxymoron" of substantive due process.  I continue to find Douglas' argument perfectly logical and even if not said in so many words, the Supreme Court continues to follow it -- basically, the spirit of various provision of the Constitution require going beyond the text to protect additional rights or powers (as the case may be) in various respects.  Thus, there is a right to association, even though it is not expressly found there, and privacy over associations, even though the word is not found there as such either.  As Madison once noted, even without the Necessary and Proper Clause, something similar would be used for congressional powers.  If Congress has power over post roads, the power to enact criminal statutes to protect them would logically follow, even if the clause doesn't literally say that. 

The substantive due process issue also annoys me, since -- and a law professor should be aware of this (I just come off as one -- someone else [a lawyer at that] assumed I was one recently ... I don't know if this is a compliment)  -- a lot has been written on the subject refuting the "oxymoron" point.  Due process of law has long been held to have a substantive content, since it grows from the concept of a "law of the land" that must be followed, a law that in our system is not merely set forth by mere legislation. Thus, if Congress purported to pass a "law" abridging freedom of speech, it would not mean someone can be convicted under it if the proper procedures are followed. The Ninth Amendment underlines that the Bill of Rights only lists some such "liberties."

Justice Stevens (contra to some accounts I have read that said the concept only came later*) recently cited a ruling on the point from 1897:

[FN30] "But a state may not, by any of its agencies, disregard the prohibitions of the fourteenth amendment. Its judicial authorities may keep within the letter of the statute prescribing forms of procedure in the courts, and give the parties interested the fullest opportunity to be heard, and yet it might be that its final action would be inconsistent with that amendment. In determining what is due process of law, regard must be had to substance, not to form. This court, referring to the fourteenth amendment, has said: 'Can a state make anything due process of law which, by its own legislation, it chooses to declare such? To affirm this is to hold that the prohibition to the states is of no avail, or has no application, where the invasion of private rights is effected under the forms of state legislation.' Davidson v. New Orleans, 96 U. S. 97, 102 [(1877) ]." Chicago, 166 U. S., at 234-235.

Again, "In determining what is due process of law, regard must be had to substance, not to form." That is, not merely "procedure" but also "substance," since we are ruled by a limited government.  Now, the matter can be debated, clearly, but the use of "substantive" (putting aside, per recent posts here about the Ninth Amendment, that the same basic end can be advanced by other means)is not simply ridiculous. The book repeatedly respects that constitutional questions involved in the material covered are complex, even if the author might fall on one or the other side.  Substantive due process is at least worthy of the same respect.

This does not take away the general value of the book of which I am now about half finished, though it does suggest we should take what is said with a grain of salt.  A bit of salt is healthy.

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* Let me be specific here.  It might be that the statement is that the term "substantive due process" as such was not used, perhaps as late as after WWII.  But, it is rather clear to me that the quoted comment concerns the basic point, even if the word is not in its adjective form.

And, the timing was telling since a similar substantive protection of due process was used a few years later in Lochner, citing another 1890s ruling in particular.  However I don't like his blogging on the point and therefore am not inclined to read his new book at the moment, David Bernstein is correct that there is too much misinformed analysis of this issue. 

Odd Clauses

The author of a religion clauses road-trip tackles little known constitutional clauses like the 3A this time, somewhat toning down the wisecracks.  So far, pretty good, if a bit too cursory at times.  Has various annoying lapses, but accessible to the general reader.

Quickies

A few comments ("Joe") on Obama's latest signing statement here.  False equivalence and furthers the evidence that Ron Paul fits the "R" label here.  Liberal Dems have the sane on civil liberties bona fides without the racism, sexism and insanity on federal regulations.

Rum Diary

I'm about 3/4 thru this long lost Hunter Thompson novel about a young journalist doing a lot of drinking in Puerto Rico along with some other stuff with colorful characters.  Tad boring if written with some verve. Seems novella or short story material with some padding.

Circumstance

This is an appealing somewhat autobiographical look at Iranian youth culture and a triangle that forms between two girls and one of their now religious brother with good DVD commentary.  But, the film was too disjointed (somewhat like Miral) for me to really get into.  

Every Dog Has Their Day

The Saints marched on from the first possession but the Rams have to win next week for them to have a chance for a first round bye.  Why?  Well, the Rams beat them.  And, another team. 

The Closer

A good ending before the final six with Brenda dropped from the federal lawsuit, but "it isn't over."  I caught Rizzoli & Isles which had a personal connection to the leads and ended in an annoying fashion with a shooting that had no reason to happen. Forced.

Annoyances

Someone noted to me recently how little things sometimes really annoy him. I can relate, in part since they seem so avoidable and petty. Death by a thousand cuts. Sometimes, real bad things happen because of little things. Like in an interview or in court, something pretty trivial in the scheme of things can lead to not getting a job or getting a conviction, though writ large, it is totally unjustified. But, being right or generally fair is not always the path to good results.

And, bad service. Harms the experience and little things can avoid the overall negative experience. We had a bad experience at our annual Christmas dinner at the Chinese restaurant. No, we aren't Jewish -- it's one of the few places open and it's a nice place. Unfortunately, this time, though it was a bit less crowded than usual for the holiday, we had to deal with bad service. I was going to say a "victim" of bad service or "victimized," which is true in a fashion, but seems overblown.

We have a sympathetic soul in our party who doesn't like to criticize wait service personnel, so when she flagged the situation as not positive, it was a flashing light. Again, little things. The waiter cannot do too much to deal with the food not being cooked fast enough.  However, not serving drinks (it's advisable to do this early, since overpriced drinks might be refilled) or even putting noodles on the table for quite some time (and then not providing dipping sauce) is his responsibility.  Later, we got the wrong type of rice as well. I can go on, but one doesn't like to whine. It is just used as an example. One that can applied to any number of situations, including how you treat someone you know. 

And, in each case, little things can spend a message. Anyways, I also realized Buckler is a near beer. Tastes pretty good though and I'm in good company in drinking it. Also, when some place has a somewhat petty policy (spend over $30 and still cannot get the .75 left on a gift card), it isn't the fault of the cashier.  I'm sure they love hearing about the stupidity of the arraignment repeatedly though.  Human nature, but still. 

More Holidays

Besides being Boxing Day, today is the first day of Kwanzaa, a black cultural celebration with religious overtones that was inspired by other holidays such as lightening candles. It had a more negative beginning (see link), but now is in effect a positive humanistic event.

Sherlock Holmes: A Game of Shadows

An artificial one that has no real reason to care. Overblown special effects piece. Female leads tacked on. Clear homoerotic undertones. Jared Harris has some charm as Moriarty, but even he is pretty tired.

NFL Update

Bears are one of a few teams that had a span of games like a shooting star in the sky -- a bit of brightness before dying out. GB finished them off, clinching first seed and Falcons'' playoff spot. One of many decent teams there. Some spots and seeding left.

52 Little Lessons from It's a Wonderful Life

I received this book free from Book Sneeze in return for providing a review.

I am a movie buff.  For the longest time, I enjoyed movies, both in actual theaters and on the small screen.  All types, not just those with some sort of "point" or "message," and even those often are just fun to watch.  You know, like one of those films on Hallmark.  It's A Wonderful Life is such a movie.  It is fun to watch -- it is a bit over the top but still enjoyable, even if you watch it a lot of times.  There is also a type of imaginary world feel to it, like watching Andy Griffith.  But, it is also nice because of its values.

This makes it perfectly logical to use it as the basis of a set of "little lessons" and I actually remember my religion teacher once back in the day referencing that he played the movie sometimes for its lessons.  The movie has an angel in it and all, but like it isn't overly religious about things, so has a broad appeal.  Bob Welch here provides some scriptual references among his lessons, this being provided by a Christian themed book club and all, but "Christian" here is more of a generic thing though George's willingness to sacrifice his life for others does have a certain Christian symbolism of sorts.  Still, the book has a possible wide audience, the film facts and other details also of interest.

How does it handle its goals of discussing lessons of faith, humility, good works and so forth?  Fairly well.  I think the basic values, like the trilogy just cited, are as important as they are fairly briefly stated.  So, I don't think you really need "52" or anything and after a bit, that could get a bit boring.  Still, especially if you (seems logical) read one a week, or skim, it is a pretty good book.  Might work as a stocking stuffer.


Some vids from someone who liked the book more than I can be found here. 

NFL Update

Other than the Pats and Dallas, it's unclear what good team the NY teams beat this season and the NYG winning didn't change that. MN got a third win; the Rams did not. Tebow had a bad day. No real surprises. Jets need some help as do some other playoff hopefuls.

Wisdom Meets Passion When Generations Collide and Collaborate

Wisdom Meets Passion When Generations Collide and Collaborate By Dan Miller and Jared Angaza

This book is written by a father/son team.  Its purpose is to  explain the difference between Generation X & Y’s career goals and work ethics and how the wisdom of the older can be partnered with the passion of the younger to create change in the world while earning a profit.  It is helpful in that its down to earth style is understandable while using humor to advance its ends. 

It has been noted that the book is repetitive of past writings, but I have not read their other works, so cannot comment on that issue.  Another referenced that it was impracticable that "God will provide a job" was cited instead of education.  I think the book doesn't suggest it is a matter of either/or.  For instance, it states talents that are "God-given" and then discusses what we should do with them.  This suggests a certain religious sentiment but not merely so.

I did not find the book particularly amazing or anything but it is a perfectly good read and recommend people check it out.

Disclosure of Material Connection: I received this book free from the publisher through the BookSneeze®.com <(...)> book review bloggers program. I was not required to write a positive review. The opinions I have expressed are my own. I am disclosing this in accordance with the Federal Trade Commission's 16 CFR, Part 255 <(...)> : "Guides Concerning the Use of Endorsements and Testimonials in Advertising."

Merry Xmas Royko Style

Well, wrapping is done and the battle of the NY mediocrities is upcoming, so it's almost time for Christmas. A few have linked in because of my reference to St. Royko's Christmas columns. The post discusses a Royko biography and ends with a footnote:

The book reposts what appears to be most of a touching column, told through the eyes of alter ego Slats Grobnik, about a young married couple that clearly had very little money buying a Christmas tree. They bought two cheap trees ($3), both half crummy. SG later saw a tree in their window, and it looked wonderful. Turns out, they tied the two together, and "if you put them together just right, you can come up with something really beautiful." You know, "Like two people, I guess."

[Slats was introduced in the 1960s, when a major policy role in the poverty administration was given to a poor person. This seemed off to Slats. He was drunk for as long as he could remember, but was never offered the presidency of Seagrams.]

I also linked to "Mary and Joe, Chicago Style." There is a book entitled Jesus of Hollywood that discusses film portrayals of the birthday boy and notes the various typical tropes used. Dickens helped to provide our Victorian view of events. But, Royko provides perhaps a more appropriate vision in honor of a unmarried teenager who gets pregnant and whose son grows up to be a light for many, but favors hanging out with the usual enemies of Republicans and other respectable folks. Heck, he even hung out with a tax collector!

Well, that clinches his dirty hippie creds for sure.

More What Good Is Obama Stuff

The move was the first time since 1994 that the department has exercised its powers under the Voting Rights Act to block a voter identification law.

Toss in Holder's speech in support of voting rights and things like this, yes, Obama is a Democrat and not just a lame one.

More Bigotry

Rick Snyder Signs Domestic Partner Benefits Ban For Michigan Public Employees

Merry Christmas!  Meanwhile, a secularist's report card for 2012.

Pot v. Booze & Jury Nullification Either Way

ACS Blog had an interesting piece on jury nullification, touching upon a local prosecution (inane) of someone handing out pamphlets on the subject near a courthouse.  NYT has a game of "would you rather" regarding teens between pot and booze.  Cameron Douglas.

2-13

Even without Peyton Manning, the Colts shouldn't have been 0-12.  They beat a team last week with key injuries from QB on down.  The Texans have key injuries too but continued to win.  Having a bit of a hiccup now (0-2) though and (with penalties helping) blew it late.

Go NY! (Someone Has to Win!)

In the Giants v. Jets match-up, the NY (full stop) fan should root for the Giants.  A Jets loss gives them a much greater chance to still get to the playoffs.  A win might not even do it.  And, who would get in is more of a "who cares" than if Dallas or the Eagles (ha ha) benefit. 

True Grit

I started the year watching this great film and borrowed the DVD near its end.  It is mostly loyal to the book, which also was good.  The DVD has a few "making of" extras that were interesting.  No commentary.  The young actress and the writing etc., still very impressive.

Military Video

MSNBC has some good military related clips here including the "first kiss" picked up between a same sex military couple, an interview with Jessica Lynch (so peppy!) and others.  Fall ends in a bit.

Peculiar Institution: America’s Death Penalty in an Age of Abolition

I skimming this book now, after John Paul Stevens' positive review.  It is something of a social history and beneficial on that level but I cannot quite get into its specific style.  Still valuable.

More on "Religion"

The Supreme Court in a ruling that struck down a law that required a notary public to declare a belief in God noted:

Among religions in this country which do not teach what would generally be considered a belief in the existence of God are Buddhism, Taoism, Ethical Culture, Secular Humanism and others.

The breadth of the term "religion" was already dealt with by lower court rulings for decades at that point, addressing issues of conscientious objection and tax issues, including in cases involving ethical culture.  An aside. The "belief" is also not necessary to religion (if so, "religious belief" might be redundant), suggesting a state of mind and emotional attachment that might not be present in some religions, including those focused on action.  Anyways, does this mean that the state violates the Establishment Clause by promoting the principles of "secular humanism" as some suggest?  No, unless the state promotes the idea that one should not believe in God. As with promoting kindness the others, it's okay to further things some religions support.

The Supreme Court later tried to set a limit here by saying that "choice was philosophical and personal, rather than religious, and such belief does not rise to the demands of the Religion Clauses."  Thoreau was cited. Justice Douglas, accepting Seeger as stating a constitutional rule, argued that this was too limited -- "based upon a power or being, or upon a faith to which all else is subordinate or upon which all else is ultimately dependent" would overlap.  A look at various lower court opinions, as I have noted in the past, suggests there is not really too much space between these things, especially if the former is applied liberally.

Some worry about such an open-ended definition of religion.  The fact remains that it a complete account of what society recognizes as "religion" is not limited to belief in God and the afterlife,* even if that was how things were originally understood when the First Amendment was ratified (if not something even narrower). People have all types of religious beliefs and practices, the term at times used to explain a way of life as much as anything else. Thus, protection of freedom of religion, or more completely, freedom of conscience, should be understood and respected broadly.  The breadth also suggests that for purposes of the Establishment Clause, the test is not quite as broad, at least, if the state is not seen as endorsing or furthering a particular religion over another.  Or, inhibiting (such as favoring one view of abortion over another) the free exercise thereof. 

There is some "play in the joints" there.  Happy Hanukkah.

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* The mere belief that there is a God or some such being/force is not much of a religion, particularly if someone doesn't put any meaning to such a being's existence.  The same might be said about lack of such a belief.  "Atheism" is not a religion, unless it is expressed in such a way that it amounts to such. Some atheists are in effect evangelists and not accepting the existence of God is just part of an overall belief system though I realize the terminology might be deemed insulting to some. 

"Religion"

One thing the recently deceased Christopher Hitchens was famous for was his strident atheism. This was a subject of an interesting panel discussion on Chris Hayes' program last Sunday.

The basic thing I have to say about that is that there is little value in being an ass on the subject. Various aspects of religion can be an easy target and at times a valid one, but many who believe in God are not assholes or (to cite a clip shown) telling their kids a bunch of religious based lies. Likewise, those who think religion is "believing something higher than oneself" or something need not believe in God, an implication of one of the panel notwithstanding. And, unless "God" is truly a metaphor, someone using the "miracle" of childbirth to back the belief up is a bit lame. The woman knows biology, yes?  Something might be "sacred" as in having a special meaning with particular emotional significance and not be unable to be described by natural means. 

U.S. v. Seeger interpreted a statute that limited conscientious objector exemptions to those who believed in a "Supreme Being," in particular, "an individual's belief in a relation to a Supreme Being involving duties superior to those arising from any human relation, but [not including] essentially political, sociological, or philosophical views or a merely personal moral code." The ruling held that those with "a sincere and meaningful belief occupying in the life of its possessor a place parallel to that filled by the God of those admittedly qualified for the exemption" was covered too. Others used this basic definition to provide a meaning to "religion" in general.

A few excerpts:

Over 250 [religious] sects inhabit our land. Some believe in a purely personal God, some in a supernatural deity; others think of religion as a way of life envisioning as its ultimate goal the day when all men can live together in perfect understanding and peace. There are those who think of God as the depth of our being; others, such as the Buddhists, strive for a state of lasting rest through self-denial and inner purification; in Hindu philosophy, the Supreme Being is the transcendental reality which is truth, knowledge and bliss.

Protestant theologian, Dr. Paul Tillich: identifies God not as a projection "out there" or beyond the skies but as the ground of our very being.

"And if that word [God] has not much meaning for you, translate it, and speak of the depths of your life, of the source of your being, of your ultimate concern, of what you take seriously without any reservation. Perhaps, in order to do so, you must forget everything traditional that you have learned about God."

Ethical Culture: "Religion, for all the various definitions that have been given of it, must surely mean the devotion of man to the highest ideal that he can conceive."

The "ultimate concern" reference is often a favored starting point mixed with other things such as rituals, doctrine and so forth. This is seen by the NY Society of Ethical Culture (which is also under state law allowed to officiate marriages along with traditionally recognized religious personnel). Some people say they are "spiritual"* and not "religious," the latter term apparently implying some sort of institutional arraignment or dogma with which they are not comfortable. But, one need not believe in God (even putting aside Buddhists or Taoists) to belong to one. Jewish atheists still can be practicing Jews. The Society of Ethical Culture at times speaks of themselves as a "religion." Unitarian Universalists include atheists. "Religion" has a broad meaning, including a sense of community that lapsed evangelist Bart Ehrman counsels those who don't believe in God to respect as often a basic human need and desire.

People like Hitchens need to be a bit careful. After all, even a hero of Hitchens, Tom Paine, believed in God. For many, this is a religious time of year, even without Christmas mass. The Christmas Carol has both secular and religious qualities.  "Religion" has a broad meaning and in practice it is so used, just like being a "Christian" often means "a good person."**

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* "Spiritual" according to Wikipedia concerns "deepest values and meanings by which people live." It is usually seen in a positive light, suggesting the person has some inner force that is guiding them with some overlap with one's "conscience." And, some who see themselves as "religious" have such an "inner light" without a firm connection to any organized religion.

** Dictionary.com defines "religion" thusly: "a set of beliefs concerning the cause, nature, and purpose of the universe, especially when considered as the creation of a superhuman agency or agencies, usually involving devotional and ritual observances, and often containing a moral code governing the conduct of human affairs."

The "superhuman agency" part isn't mandatory. The word appears to have come from a word meaning "to tie or fasten" as in something that binds a person, an obligation to another.  It also was understood as "conscientiousness, piety."

Even "born again" experiences are not always of a deistic character.  Many activists, e.g., have what amounts to a religious moment when something seems crystal clear to them about their "ultimate concern" or purpose in life etc.  They also can have changes of hearts and so forth.

The Nativity

This small book does a good job discussing the various aspects of the Nativity accounts in Matthew and Luke. Last year, I discussed Joseph here. Striking to think of Mary as being like twelve here.

TV Update

The Closer was workmanlike with a personal touch regarding a drunk driving victim with overall plot-line implications. SF, when power failures were dealt with, handled a beat up Steelers team (the QB toughing it out, ill-advisedly). SF v. Green Bay in January?

"Marriage"

VC last week discussed marriage recognition.  The comments had an ongoing debate regarding the "core" meaning of marriage with one insisting it inherently involves man/female unions.  Marriage like the ancient view of an atom, set and unchanging.  A fictional reality.

R.I.P. Mr. Havel

At their meeting in March 2009, Mr. Havel warned of the perils of limitless hope being projected onto a leader. Disappointment, he noted, could boil over into anger and resentment. Mr. Obama replied that he was becoming acutely aware of the possibility.

 Dear Leader also died in North Korea.

NFL Update

Jets lost bad but got help, still on top in WC race.  Upcoming NY battle matters to both. Cards win again to gain a bit of respectability.  Pats went ahead too much even for Tebow.  Chargers trying for another late year push.  Detroit has a bit of room with a late win.

NFL Update: Upsets etc.

KC ended GB's perfection and a battle of back-ups ended the Colts total imperfection.  The Redskins knocked the NYG out of first place and made them look silly.  Houston finally lost, but they have a playoff berth.  Seattle beat the reeling Bears. Other stuff happened.

Sports Saturday

Pre-season basketball, bowl games (thirty-three to go!) and Dallas Cowboys (up 14-0, Tampa turnover the first possession).

Quote

The spirit of rational inquiry, of skepticism about dogma, and of religious toleration that animated Deism continues to influence religious views of many persons who occupy pews in churches and synagogues. 

-- The Faiths of the Founding Fathers by David L. Holmes

A refreshingly balanced look at religious history

Last year, I talked about a book about religion's place in the American Revolution. The Faiths of the Founding Fathers is more well-rounded, providing an epilogue about modern Presidents.  [A pending book covers this specifically.]  Recommended for a general audience.

Federal "spousal" benefits

Last December, a civil rights milestone was reached with the end of DADT and I said "next up DOMA!" A guest blogger at Volokh Conspiracy has been talking about conflict of laws, that is, what marriage is recognized by the government. I found the discussion somewhat unhelpful, but it did give us another shot in comments to debate "marriage" with the usual suspects. So easy to get back into that morass, even though hitting your head against the wall is at times more productive.*

It also is on some level missing the point. The alleged concern is that "marriage" means different sex couples and in particular those that unite for procreative purposes. The fact marriage is repeatedly not for such purposes and same sex couples fit all criteria of what "marriage" is usually thought to include doesn't matter to them. The fact that "that's how it always was done" applies to unequal sex roles we now reject doesn't either. Invidious discrimination is aided and abetted by selective argument and tuning out complications. And, it often is a lie -- the real concern is that same sex couples are bad. Even without "marriage."

But, many do honestly or otherwise accept (or say they do) protecting same sex couples in other ways. Hawaii just passed [rather, it will soon go into effect] a civil union law, e.g., that requires the state to treat those in the union the same way as they would treat marriages. This doesn't mean the people will get full faith and credit that "married" couples would, federal benefits by "marriage" (if DOMA was simply repealed tomorrow) or fit in a union that society has a wide recognition of as compared to something many do not know much about. "A civil union? sorry, we only let in married couples here."

Section 3. Definition of marriage

In determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the word 'marriage' means only a legal union between one man and one woman as husband and wife, and the word 'spouse' refers only to a person of the opposite sex who is a husband or a wife.

The so-called "defense of marriage" entails blocking federal benefits to "spouses" of the same sex, even if they are not labeled (by state law) as married. This underlines, even under the Orwellian philosophy of DOMA, the overreaching involved here. The second section also speaks of a relationship "treated as a marriage," which very well might be considered a civil union situation like Hawaii, where civil unions are so treated. The section also covers "judicial proceedings," which unlike marriages alone, is in other cases treated more strictly.

I support full equality but basic equality often is a big step. And, if Hawaii recognizes civil unions are treated the same way as marriages (other than the significant fact of calling it them) under state laws, why can't the federal government? "Spouse" comes from the word "pledge" such as two people who pledge to each other in a special ceremony. Civil unions and domestic partnerships at times are weaker than marriage, including easier to alienate. But, if it is of the same level for state purposes,  or strong enough to merit protection, the word "spouse" should fit in each. Surely, for federal purposes.

I don't see how denying such benefits is necessary to "defend marriage."  Unless it is about screwing over gays.

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* Let me add, that I realize that at some level it is unproductive, but this doesn't stop me and others from being pissed off by the whole thing.  And, upset, since distasteful as some of these people are, their basic sentiments are reaffirmed by denial of equality in this area.  The aggravation in part comes from the widespread ignorance involved.

One person, for instance, in full ex cathreda fashion, favors extended citations of legal precedents and so forth (including from the 19th Century or earlier) that shows "clearly" (some are wrong, others are quite firm in their wrongness) that the same sex marriage argument put forth in the Prop 8 case etc. is so weak.  A favored device is citing Baker v. Nelson, which was dismissed by the Supreme Court for lack of a significant federal question, which basically tells us nothing.  It does not tell us that the reasoning of state ruling, including its outdated limited reading of Griswold, was accepted by the USSC even then, surely not binding now. 

Anyway, the analysis tends to be a selective reading of the precedents, at times (as others with more legal study as I sometimes note) rather mistaken, and in no way compelling the promotion of the invidious discrimination desired.  And, when the patina of respectability is removed, that is made clear, such as remarks about "sodomites." 

Not Quite Canonical ...

[Click photo.] Talking about public displays for the season, here's last year's post on the First Amendment connotations of a different kind.

National Defense Authorization Act of 2012

Bill of Rights Day? Heck, habeas corpus was protected before that, this bill problematic under it. The House bill was worse, but it still would have been so easy to protect citizens, principle upheld, few citizens likely to be covered in practice anyways. Who loses?

Human Rights

A good month for Obama Cabinet officials, even with the Plan B issue.  After Sec. Clinton's speech on gay rights as human rights (but remember, Obama did nothing of note), Sec. Holder gave a speech respecting threats to the right to vote in this country.

Plan B

Good bit in this Chris Hayes coverage of the Obama Administration overturning FDA decision to provide Plan B over the counter to those under seventeen comparing it to the complications of a typical (much cheaper) over the counter medication.

Quickies

Note to Self is much more concerned with the author's personal life than the first book and I don't find said life overly interesting. Jaguars finally showed life via special teams. 41-7. Ah, TNF.

57 Degrees

It's in the 50s today -- we had snow already, but no consistently cold weather. And, I am tired of all those plastic bags though some stores "recycle." I repeatedly say "no thanks." I have started to take a bag to the supermarket; one big bag covers a week fairly well.

A dollar

A dollar (or 1.02 -- those pennies are useful) still gets me various things from a local fruit store. Lemons are a quarter, limes half that, big rolls .43, small ones .33 (either one, bit for pigeons?), an orange .25, a grapefruit .33 etc. Oh, no big bag ... I have my carry-on.

Note to Self

I'm about a third the way through the sequel to the letter writing book, this one about journal writing. It also includes advice and historical excerpts but the personal examples seem a bit immature to me. Her promotional video at Amazon is well done though.

SC Gets More Busy

The court announced Monday that it would decide whether Arizona was entitled to impose tough anti-immigration measures over the Obama administration’s objections. The case joined a crowded docket that already included challenges to Mr. Obama’s signature legislative achievement, the 2010 health care overhaul law, and a momentous case on how Texas will conduct its elections.

The Supreme Court already had a few relatively important cases, including one involving the contours of the "ministerial exemption" to federal civil rights laws, the contours of confrontation rights in cases involving forensic experts and a search and seizure case involving GPS devices. Basically the only thing else for them to do now, it appears, is to announce sometime early '12 that they will hear the Prop 8 case. No wonder the '10 Term seemed boring.

The flags here can be seen in the orders alone (aside from -- a first to my knowledge -- having a special page for the PPACA litigation), including one released early Friday evening (notable) spelling out the rules for the accelerated briefing in the Texas case, one which the article notes concerns a ruling below that favored Democrats and they did not really have to take. That they did basically puts the covered elections in limbo until they decide matters. The Arizona case did not fully run its course below, other comparable laws are in the pipeline and Kagan won't take part (a 4-4 tie, somewhat likely on at least part of the challenge, would uphold the ruling below, which struck down parts of the law).

And, the PPACA challenge is a two day marathon that took on even a portion that the 11th Cir. upheld (Medicaid funding). The betting man is left with wondering what is better, what is worse, doubting things will all go the right way.

Next up: Journals!

Nothing profound here but it's a charming book that some might find a nice Xmas present. The author talks about holiday cards here.

Remember the Pats over the Rams?

Heck, I remember 2000, when the Pats stunk, and MNF jokingly said their battle vs. KC would decide the election (12/12/00, the Day that will live in infamy). Now, it takes the Rams nine plays (six at one time, helped by a penalty) to score from the 1. Seattle wins.

Supreme Court Watch

A unanimous ruling by Kagan furthered her down to earth bona fides, including a reference to a "headscratching oddity," while she recused herself from the "papers please" lawsuit accepted for review.

Fifth Time's The Charm

After losing to three playoff teams and a wannabe, the NYG won, but not easily.  It took another 4th Quarter comeback and a missed field goal (the infamous timeout worked!), they AGAIN letting a team in field goal range with less than a minute left after scoring eight.

Classical Spam?

I keep on getting an email from "none," which to the optimistically minded is from a classically minded soul.  I reach, I know.

NFL Update

Arizona helped the NYG survive by beating Dallas; now they beat SF, who needed the game much less.  SD is sorta alive, Buffalo not.  GB won again as did Denver with a 59 yd field goal tying it and then another win in OT. Chicago the latest victim of the Tebow miracle.

NFL Update

NYJ finally had a laugher and Houston (anyone want to QB?) and the Saints helped them out.  Viks and Redskins lost a chance to win/tie late.  Colts lost.  Carolina blew another one late.  Eagles might not be a pushover for the Jets.  Tampa lost again.

Japanese Internment Remembered

On the way to the bagel shop, I repeatedly pass a cat that has a little area to stay in outside, attached by a leash.  I eventually found out the name of this chubby looking cat is "Newton" for "Isaac Newton." As with a dog I passed some years back every day, it is a nice little thing to glance over and see the cat in his little cat house or today actually eating some food.  Better, I would say, than having the putative leader of the Republican Party now being Newt Gingrich, who any serious person realizes is a sick joke.  But, are serious people running the show?

Last night, there was a few interesting things on one of the C-SPAN stations (other than Melissa Harris-Perry talking about her new book and Justice Breyer again talking about his) about the Japanese Internment.  Weekends on C-SPAN is the time for Book TV, but for those who have C-SPAN 3, it also is the time for American History, including various lectures.  This time it was a class discussion* involving something my mom (alive if a young child) was surprised to learn about years later about, that is, internment of the Japanese.  There is something shocking about that, but I have learned over time that the shocking becomes the mundane fairly easily, or at least, quite possibly.

After that, Norman Mineta and Alan Simpson (a mismatched pair, the latter now looking like one of those grumpy old Muppets who make cranky comments from the balcony) came on. Mineta as a child was interned in Wyoming, where he met fellow boy scout Simpson, starting a lifelong friendship and in Mineta's words "man love."  No, they are each married (to women and all), so not in that way.  Still, it was a pretty striking thing to say.  As was when Mineta referenced 9/11 and the talk of some wishing to intern certain people then too, but Bush (of all people) saying -- referencing Mineta's experience -- that we can't do that.  Yes, even given what happened, we should remember the difference between it and mass internment of over a hundred thousand citizens and non-citizens.  


And, after that, Sen. Inouye came on to talk about his experience as a teenager in Hawaii at the time of Pearl Harbor (I didn't watch it, but at 11 last night, there was some sort of news reel footage of the events on)  and then being allowed to volunteer to fight (first being declared an enemy alien, which among other things, he said was insulting ... he was born in Hawaii, thus a U.S. citizen from birth).  He later was severely injured while fighting in Italy.  He referenced passing an internment camp and said that he simply does not know if he would have volunteered if in one, not blaming those ("no no" boys, referenced in the above lecture) who did not.  Also, he had to get a lot of blood, most apparently coming from black soldiers in his unit.  The blood in bottles, not plastic vials. 


Striking stuff and it's great that C-SPAN allows the public to watch and remember this along with the "day of infamy" stuff that happened 70 years ago. 

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* I will say as an aside the professor is pretty cute and one student in particular kept on asking a lot of questions, someone who looks like he came out of special casting as some smart, slightly ironic college student. 

Holiday TV

Victorious Xmas episode has some nice touches, if not that funny as such, while the Good Luck Charlie movie as is usual for such things was too long.  And, pregnant again? Really?  A.N.T. Farm was decent with a few good moments from the supporting cast.  The Closer, blah.

Second time is not the charm

Choke Hold is the sequel to Money Shot, but unfortunately, like many sequels, it is disappointing from the very beginning (hard to beat the original left to die in a trunk opening).  I cared less for the characters and found the ending unsatisfying.  Angel Dare deserved better.

TNF: One Team Manages Some Offense

We again managed to see a bad team (Browns, last time KC) hold the Steelers offense (penalties helped) in check but be hurt by lack of offense -- their goal line stand (impressive) balanced by two failed attempts to score from five yards away.  A second score late iced it.

Not the Best Person For A Review

I enjoyed Valentine's Day as a cotton candy light confection, so maybe New Year's Day will be do it for me, but maybe someone a bit less cynical (the place to be is watching it on t.v.) should review it?

HHS Blocks Move To Make Plan B Over the Counter For All

But focusing on the age of the women who might use the drug is “completely missing the point of what the FDA was trying to do, which is to make it accessible” to all women, said Dr. Cora Collette Breuner, a member of the Division of Adolescent Medicine at Seattle Children’s Hospital and a representative of the American Academy of Pediatrics.

The problem with this statement is that the "women" involved here are teenage girls under seventeen.  Now, the lawyer in the book I just mentioned might be a "young woman" (lady) and so forth, but calling her simply a "woman" at age fourteen is a bit off.  It also is true that any number of over the counter drugs "potentially, if not used properly, could end up having an adverse effect." 

So, blocking such use of Plan B (as the FDA advised, before the HHS Secretary overruled them) for those that age does not tell me much. The question is if there is something special to that drug, as compared to let's say something that can be misused as an appetite suppressant or whatever, to make it a bad idea to allow it for young adults under seventeen.  Perhaps, another lawsuit will be in the works, like the one that led to a decision overruling blocking such use for those between sixteen and eighteen.   As noted there:

a decision whether Plan B, a systemic hormonal contraceptive drug, may be used safely without a prescription by children as young as 11 or 12, is best left to the expertise of the FDA, to which Congress has entrusted this responsibility.

These drugs are time sensitive though there should be time -- if the reproductive health resources are available -- to obtain a prescription in many cases.  Still, I would imagine (especially given sex on weekends) the delays caused could be problematic and generally trust the experts here who deem it the right decision.  The move here was defended on the merits though the article cited above sees it as a political move.  I can see it either way -- potential thirteen year olds are involved here.  Is there not a way to split the difference somehow?  There already was a move to draw the line at seventeen.  Why not sixteen or fifteen? 

Noting the pioneer nature of this move, Amanda Marcotte noted:

Since you need to take the pills within 72 hours of unprotected intercourse, the clock will run out on young women who have to work up the courage to tell a parent, then go to a doctor for a prescription, and then go to the pharmacy. For those who’ve been sexually assaulted, it could be even worse, because a fairly standard response, especially amongst minors, to rape is to bunch up in denial and refuse to talk to anyone about it for a long time. The only reason to keep these restrictions in place is to force pregnancy on unwilling minors as punishment for having sex, and just accept the impregnated rape victims as collateral damage. 

[XX Factor blog linked by above url.]  I don't think so.  Forced pregnancy is not the only reason (misguided or not) to not provide such things OTC to young teens. She notes at one point that the pill here uses "roughly the same principle as traditional contraception," but Planned Parenthood here says that birth control pills are given by prescription.  If the "clock" is three days, there IS time in many cases to get a prescription.  If they are going to go into denial when raped, would they go to the pharmacy?  Also, would they have to ask a parent first?  Would not there be places that provide reproductive services to minors?  Is this a consent issue? 

Of course, in conservative and/or isolated areas plus certain times of the month, it will be harder to obtain than in NYC or mid-week sometime.  And, the alternatives underline the special nature of reproductive health care in general.  There simply is not the same dynamics and complications when a teen has to get eye care or deal with a stomach virus.  With the pills already complicated to obtain in some cases even as an adult,  any further complication is also upsetting.  Still, it simply is not fascist to be wary about giving birth control pills to those under seventeen OTC. 

I think the decision is wrong but understandable.

Republicans Act Like Spoiled Children Update

Congressional Republicans, hoping to prevent the president from filling key government posts with qualified officials, decided earlier this year to simply end recesses, mandating pro-forma sessions every third day that would prevent vacancies from being filled.

Senate Republicans are assholes who block such officials because they don't like the democratically passed agencies involved or the person in power. The already undemocratic Senate not undemocratic enough, this is the favored approach, even when tax cuts are involved.

"Everyone" isn't the same here.* The problem is not simply "the government" and the fact (in part since the other side actually cares about governing so can't simply play chicken) not enough is done in response is not a sign that the Democrats are just not worth supporting. Yes, Democrats are enablers, either Blue Dogs or simply loving the power obtained by not putting in even mild checks on filibusters that work when used as a limited device to promote collegiality and show how much a certain matter is important to some faction, leading to compromise. But, enough is enough. And, one side is worse. A blue dog type and a conservative said as much in The Broken Branch right before the Dems gained control of Congress back. 

Some simply won't admit it, no more will some sane seeming sorts on the left will stop saying "nothing" was done worth talking about when Obama and the Dems were in power over the last three years. This, the specter of being forced to eat broccoli and the evil sorts running the Mets (nothing they do is right, everything is wrong, the team sucks etc. etc. etc.) is the type of thing that makes me want to scream. We need new over the top stereotypes. The old ones are getting old.

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*  Facts are facts, even if you don't like the players:

Consider this tidbit: cloture was invoked 63 times in 2009 and 2010, which isn’t just the most ever, it’s more than the sum total of instances from 1919 through 1982. That’s not a typo.

 If you like this sort of thing, fine, but cut the b.s. that nothing novel is going on, citing some favored example.  It is getting old.

14 Year Old Lawyer

Kate's story involves danger and intrigue, good detective work and fast-thinking. It covers immigration issues, gender roles and age-ism, each with just enough coverage to get a caring person thinking.

A well written book for young adults that can be enjoyed by all.

Next up: Hoverboards?

Unlike some, I accept the Mets as now drawn up were unlikely to get Reyes, so am less upset that they didn't "try" as some sort of CYA move doomed to fail. The recent moves to me seem helpful. And, are we closer to a Cubs over Miami World Series win in '15?

Betty & Veronica

This is a title of a short story that I downloaded for free on my Kindle. You can get some good stuff that way. It's a touching and well written story of friendship and dealing with breast cancer.

Day That Shall Live In Infamy

You know, military attack on a military base after allegedly neutral country embargoes necessary resources, an act of war under international law. Was a bit sneaky about it, but the U.S. isn't quite one to talk historically speaking. Revisionist or more accurate?

Once Upon a Time

Catching it on IMDB, Sunday's episode was pretty good. The current day stuff at times isn't as good (some characters are a bit boring), but as a whole, this show is nicely put together. Sense of place especially. Pretty good to keep up 2x the locations.

Dahlia Strikes Again

No fray, no regular Slate reading, but SCOTUSblog flagged a very good Dahlia Lithwick article on the hypocrisy of Republicans, connecting filibustering Caitlin Halligan (part of their "slowdown" approach) and their weak arguments on televising SC orals.

Body of Proof

Better episode than last week, even with some character stuff -- the young assistant having trouble dealing with parents of the deceased felt true, providing commentary on an aspect of the job. The Mets made some serious bullpen moves. Pagan gone. Signs of life.

Pan Am

The Haiti adventure episode impressed some IMDB board members, but I found it roughly done. Sunday's episode was much better, a mini-cliffhanger until January. I also don't have the dislike of the spy subplot of some, in part since I like the actress involved.

The Closer

Christmas episode, not really taking itself seriously. The fact "Santa" just wouldn't die after repeated attempts sort of underlined it. This is okay. But, was a bit lazy on the drama, including the conversation with the lawyer. Brenda thinking him "mean" was a bit lame.

PPACA and Taxes

Lyle Denniston talks about the "tax penalty" aspects of the PPACA in his latest in the series on the case. I continue to read the senior Supreme Court journalist's posts with some um dissenting thoughts.

We first read:

The Administration actually considers that tax liability not to be a tax, after all. It persuaded Congress to refer to it, most of the time, as “a penalty” and that label has stuck — except in the legal debate, when the provision again is sometimes called a tax. After all, for those who will owe it, they will pay it to the Internal Revenue Service, along with their federal tax return. What is going on here?

Yes, what is going on? Well, later on, we do read that at first the Administration argued that a law addressing "tax" suits barred litigation on the "mandate" (yesterday, I linked to an essay that reasonably argues otherwise, but not on the ground that it isn't a tax) but changed its mind after repeatedly losing on the point. Also, there are pragmatic and political reasons for them to want the issue to be decided now. Again, the cited essay provides a way to do that and not pretend a tax is not at issue here.

It is curious that a provision regarding money a "taxpayer" (to cite the article) to be "paid with a federal tax return" is not really a tax. But, the article notes the 11th Cir. held that the federal courts so far "have spoken with clarion uniformity" on the point, so it is "doubtful" that the measure would survive if the Commerce Clause grounds are rejected. For some reason, the Fourth Circuit ruling that struck down the suit on standing grounds via the Anti-Injunction Act (regarding taxpayer suits) was not mentioned. Nor the judges who thought it a 'tax' or the chance that the USSC might disagree (as they sometimes do) with the holdings of a few courts on a certain point. But, Judge Sutton wrote:

It is easy to envision a system of national health care, including one with a minimum-essential-coverage provision, permissibly premised on the taxing power. Congress might have raised taxes on everyone in an amount equal to the current penalty, then offered credits to those with minimum essential insurance. Or it might have imposed a lower tax rate on people with health insurance than those without it. But Congress did neither of these things, and that makes a difference.” Congress adopted the mandate and penalty in their present form, the judge concluded, “to change individual behavior,” not to raise money for the Treasury’s coffers.

If we are going to cite a non-binding concurring opinion, why not cite another that argued that the provision on the ground it is a tax? The opinion in part referenced precedent that held that: "To determine whether an exaction constitutes a tax, the Supreme Court has instructed us to look not at what an exaction is called but instead at what it does." This belies the insistence that we must take politicians at their word -- if they say they aren't raising "taxes," well darn, they aren't! If a bird looking animal quacks, it is a rabbit -- after all Congress and the President said so. Well, sometimes. When not talking about "taxpayers" and "tax penalties" and requiring money from people on April 15th.

But, what about the fact the money is intended to pressure people to change behavior? As the article notes:

Congress did not adopt the ACA penalty to raise money, even though it might bring in an estimated $4 billion a year, according to the Congressional Budget Office, and could ultimately be paid by as many as 4 million Americans.

A nice bunch of change. Not a tax though! Well. The money does in fact raise revenue. Let's say the revenue has a primary purpose to influence behavior. So what? The Constitution is pretty clear on the point:

The Congress shall have power to lay and collect taxes, duties, imposts and excises, to pay the debts and provide for the common defense and general welfare of the United States; but all duties, imposts and excises shall be uniform throughout the United States;

Let's say a "tax" is something that raises revenue in a tax-like way (to my knowledge, the Supreme Court, particularly in recent years, has not defined the term narrowly, though some might want to try). This provision seems to meet this colloquial test. A plain vanilla "fine" is not something that is collected in this fashion, down to relying on income as a test on determining the amount. So, we are left to see what it does. And, the Constitution underlines taxes are not just to serve as revenue. The article itself suggests as much by saying that is a primary purpose of taxation. But, lots of taxes are for other reasons. For better or worse, the tax code is used to encourage and discourage various behaviors.

A major end of the legislation is to promote the "general welfare" by expanding those with health insurance. It also does so by protecting a national industry (health insurance and health in general) pursuant to the Commerce Clause. Taxes is one way to advance the various powers enumerated by Congress. As with rights (e.g., religious liberty including religious speech), powers often are interlocked, no need to rely on one or the other to uphold certain regulations. The Commerce Clause (or CC + Necessary and Proper Clause) argument might be stronger as a whole, though I think that might be debated, but quite honestly, I think the means used here includes a "tax." Words do matter. So do the meanings of acts. There is a way to get around the taxpayer anti-injunction statute and not add fuel to this sophistry. If the Court wants to be vague about it or leave the question, fine, and ultimately it is about upholding the law. But, not calling this a "tax" to me is dumb.

I readily admit that the "tax" aspect of the legislation, helped by the Administration itself begging off on it lately, has not received much love by the federal courts. There is some support there, as noted above (one judge specifically relied on it, the 4th Circuit at least relied on it being enough of a "tax" for the injunction law to kick in and a third in dissent also agreed with the 4th Cir. while providing some help to those making a full fledged tax argument). Not quite seeing the "clarion uniformity."

Bridge to Terabithia

A recent hit on the blog on the film leads me to say, yes, good film. It was mostly loyal to the book (excellent) though the child actors were a bit too "polished" for the low income and tomboy characters respectively. They have continued to act, including in Soul Surfer.

PPACA Litigation: Decide it now?

I have doubted if it was prudent to decide the tax penalty issue now, and there is a statutory hook being examined by the USSC that might require the courts to wait, but this article is pretty convincing. 

Reyes Gone, Road to AAAA ball?

Last winter might have been a good idea to extend his contract, but now, the Mets weren't (with justification) going to match this sort of deal.  The Mets are closer (who is going to be their closer?) to being the Baltimore of the NL East.  The theme for '12: low expectations.

No Moral Victory

Arizona beat Dallas, but the NYG tied (with a two pt play) with so much time left (:58), the Packers yawned, winning it with an easy field goal (an earlier harder one missed).  49ers clinched their division.  Ravens finally beat a sucky team.  Lions v. Saints next.

NFL Update

NYJ finally went ahead with breathing room but oh look Denver (current division leader) came back again and won it late.  Bengals did lose to tighten WC race.  NYG already scored.  Colts lost.  Houston (QB 3) eked out a win. That MNF game (SD/JAG) looks lame.

TiMER

I briefly spoke about this charming film about a particular type of relationship device here (saw it via Netflix) and the DVD is good too with a couple short "making of" extras and a good commentary. The deleted scenes and bloopers also had some nice moments.

NFL Update

Theme: mediocre QBs -- newbies, back-ups (if not back-ups of back-ups) and underachieving QBs. Meanwhile, NY Jets are again struggling against a mediocre team. Shall I put "another" in there? 

Who the **** Cares?

Wow! Herman Cain "suspended" his campaign because of the mean things being said about his past relationships with women. His campaign was due to end at some point and now we can worry about other joke candidates, like Newt, no less so if he is a poll leader.

2001

This is one of those classics (see also, Gone With The Wind) which I never saw.  I started to watch it and ... yawn.  I'll stay with the Airplane! parody of Hal.  I know, I'm culturally deprived.  Don't worry. I read the whole Jane Austen collection.  I'm covered.

Inside Hitler's Bunker

This book on "The Last Days of the Third Reich" by Joachim Fest is a short account that is a major source of the movie Downfall.  It sort of rambles on near the end, but overall, it is a very good account and analysis, including of the Nazi regime/Hitler as a whole.

Repeat TV Watch

A hit on my Life on Top discussion lets me note a good S1 episode was on.  I like the opening cast and find S2 less fresh and personal.  S5 of The Closer had some good episodes, including the ones with the lead actress' daughter; DVD talked about the location set-up of each.

Eagles Play To Form

The 5-7 Seahawks show how it's done ... then again, they did beat the NYG, who would be tied for first if they beat either of these two subpar teams, both with back-up QBs at the time.

The Continual Complications in PPACA Coverage

SCOTUSBlog continues informative coverage of the PPACA litigation with questionable framing mixed in.

Congress — for the first time ever — has opted to command Americans to buy health insurance, or pay a penalty if they don’t.

I was not under the impression that the money taken out of one's paycheck for Medicaid (if needed; it might not be, but the same applies to other types of insurance [here government provided, but other places, maybe privately so] -- you pay money into the system that you might never use) and Medicare was voluntary, or does this "health insurance" not count?

The scary use of "command" here is notable (among other things). The person isn't put in jail or anything. They "pay a penalty" which is collected by the tax system. Why this is much different from "commanding" someone to have an energy saving device or paying higher taxes is unclear. And, "Americans" or "citizens" who merely "live" in the U.S. (see discussion, without comment, of the 11th Cir. ruling) are not the people required to do this either. Without providing numbers, but as a whole it must be something like 1/5 of the population (low income families would be the chunk here, a few percentage points coming from inmates, members of tribes and so forth ... the less than three month rule also seems potentially notable), he lists those not covered:

The mandate does not apply to people who have religious objections to it, to undocumented immigrants living in the U.S., to prison or jail inmates, to members of Indian tribes, to low-income individuals or families, to those who go without health insurance for less than three months, and to a catch-all category for individuals whom the government concludes suffer a “hardship” in getting covered by a health plan.

Maybe, we are supposed to conclude for ourselves the 11th Cir. quotations on the point are blatantly misleading, but since so many do not, it would have been helpful to not simply quote them but put forth a query how it stands up next to the fact so many who merely live here are immune from any penalty for not having insurance. And, we have this dubious statement:

The majority of the Eleventh Circuit Court, based in Atlanta — the only federal appeals court so far to strike down the mandate — spoke for most observers on all sides of the constitutional dispute when it said the requirement was totally without precedent in the Nation’s history.

No. "Most" observers do not accept that the requirement "was totally without precedent." The 1792 Militia Act was an "economic mandate" that required members of the militia to purchase various militia supplies. As here, states were intended to do much of the heavy lifting, including (with no federal Medicaid like funding involved) dealing with those too poor to purchase the supplies themselves. The cost was one reason some opposed the approach. No reference to this repeatedly cited precedent.

Citing the 11th Cir. ruling, again without comment, the previous "mandates" (which include some "economic" component, I would add) all were "duties of citizenship, each with a foundation in the Constitution itself." Since many opposed the federal draft, here argue the law has such "foundation" and protecting the national health system and helping protect the health and well being of Americans can also be a "duty of citizenship," the PPACA again need not be deemed "without precedent." Past laws that taxed those who didn't do things that burdened interstate commerce also reaffirms the point.

We are also told that the 11th Cir.

majority foresaw the prospect of a “command economy,” dictating much of how American families live their private lives. The mandate, it concluded, “is breathtaking in its expansive scope.” The “mere fact of an individual’s existence,” it commented, is not enough to make one an economic player subject to congressional control.

If a "command economy" regulation does not violate the Constitution, particularly in certain contexts such as during a war, it might be bad policy, but it is allowed. The law here (for those who are covered) says you have insurance or pay under $800 more a year in taxes. It is not "breathtaking" in scope.  It doesn't tell you what procedures to use or that you will go to prison if you don't have insurance. After listing many people not covered (not the only problem with the statement, but a big part), why, WHY, does the author blandly quote the "mere fact of an individual's existence" trope?  It is patently false.

Finally, this too is misleading:

The entire basis of Congress’s action in creating this requirement was that no one was outside the stream of commerce that constitutes the health insurance market: no matter how firmly individuals may insist that they do not need insurance, they will, at some time, need health care, according to the government’s judgment. It is only a question of who pays for it, and when, Congress believed.

We should not merely focus on this aspect. The article itself addressed the "spread the risk" concept of insurance. And, without that, the insurance market will have problems, including medical bankruptcies that burden us all. The health insurance market does not merely involve those who directly are purchasing insurance or in need of it to pay for health care. It involves everyone who is in various ways affected by such things. A business loses a worker since s/he has no health care to deal with an illness or accident to a family member and cannot work any more at that firm. Is the business truly "outside" the stream of commerce here? Do medical bankruptcies not affect those without insurance? How about if it involves unsecured debt that is owed to such individuals, perhaps one who runs a small business who has little margin of error? Something that amounts to about 1/5 of the economy is going to affect the stream of commerce in diverse ways.

The article ends:

It is apparent, from this one decision by an appellate court against the mandate, that the federal government’s primary task before the Supreme Court will be to put the individual back into the health care market, as an inevitable consumer who should not be allowed a free financial ride when, as a near certainty, he falls ill. The secondary task, it seems, will be to convince the Justices that the power at issue would go no further than health insurance regulation, so it need not be feared as a means to create a “command economy” run from Washington.

The "inevitable consumer" and "free financial ride" aspects are involved, and have bite, but is only part of the equation. The basic point is that the health insurance market (and the health care it pays for) has octopi like reach in our national economy and this legislation, including the infamous provision, is a proper regulation. This makes health insurance regulation somewhat unique, but it would be fictional that some other sort of requirement of this type (with similar mild penalties attached) might not arise at some point. The federal draft once upon a time seemed to many as unlikely too. Still, the mild nature of the requirement can be explained to show we don't have a "command economy," though curiously some seem to suggest that if we had more of one (e.g., a universal health care system paid by the government), it might be more likely to be constitutional.

Of course, it is hard to take many of them seriously. I take senior Supreme Court reporters much more seriously, particularly when (perhaps for "space restraints") they mislead in the process.  Do we really need this sort of thing to get useful (and it does have much beneficial use) analysis of this sort?