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?