This morning's Supreme Court oral argument in the Affordable Care Act litigation concerned the applicability of the Anti-Injunction Act?basically, if the penalty clause in the individual mandate in the ACA is deemed to be a "tax," then an 1867 law says that that courts can't assess its constitutionality until someone has been taxed. If the Court determines that the Anti-Injunction Act applies, then the Court gets to punt on the constitutionality of the individual mandate until 2015.
Having read this morning's argument transcript, I agree with the courtroom observers who believe that the Court will blow past this issue and resolve the constitutionality of the individual mandate on the merits. Justice Alito, and maybe the chief justice, do seem favorably inclined to the AIA argument, but I don't yet see five votes for it.
The AIA issue wasn't pressed by either side of the case; the Court brought in outside counsel Robert Long to argue this point. While the transcript gets wonky at times, I want to focus on the Court's discussion on whether the penalty constitutes a "tax."
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Rep. Paul Ryan and a bunch of indistinguishable white guy Republicans unveil the Medicare-busting budget. It's deja vu all over again. (Kevin Lamarque/Reuters)House Republicans, now that we're four months into the election year, have started figuring out how they're going to position themselves for November. (To cut them a little slack, they haven't been in Washington to work this stuff out all that much yet this year, or to work on anything, actually.) They've apparently decided to go all in on the Ryan budget, including gutting Medicare and repealing the Affordable Care Act.
In private meetings set to begin on Tuesday with restless Republican lawmakers, leaders will outline a ?strategic plan? to take the House GOP through Election Day, with items ranging from rewriting the corporate and individual Tax Code to overhauling federal regulations to changing U.S. energy policy.So it will be more drill, drill, drill and evil light bulbs; job-killing regulations; no new taxes for "job creators"; raise the retirement age; take away Medicare; repeal Obamacare; and have more inquisitions by Rep. Darrell Issa. They don't detail what new fronts on the war on women they'll be opening, but chances are they'll throw most of that in with health care repeal.
The briefings, including a presentation from House Ways and Means Committee Chairman Dave Camp (R-Mich.), will also outline the Republicans? plans to repeal Obama?s health care law, whether or not the Supreme Court keeps the law in place. Included in the agenda is entitlement reform, debt reduction and oversight hearings by House committees.
The road map is aimed partly at reassuring House Republicans anxious about the party?s legislative record and direction.
How anything in this agenda differs from the previous year is not readily apparent. Particularly when you throw in the fact that the budget breaks the existing budget deal and presents yet another government shutdown threat.
With the nihilist wing of the caucus essentially in charge, it seems there's little else leadership can or wants to do. But given how poorly this has worked out for them so far in the court or public opinion.
The great legal theorist Alexander Bickel advocated that courts use "passive virtues"?that is, using invented jurisdictional reasons to not hear politically contentious cases. The political scientist Mark Graber has tweaked this concept to describe passive-aggressive virtues?the tendency of the great Chief Justice John Marshall to expound on his theories of constitutional law while deciding cases on grounds that left opponents no means of opposing the Court (usually because they ended up with the policy they wanted.) In an intriguing article for Slate, David Franklin argues that the Roberts Court could duck the constitutional challenge to the Affordable Care Act using these methods. The Court, Franklin notes, could simply decide not to decide by holding that the legal challenge to the ACA is prohibited by the Tax Anti-Injunction Act. This would keep the court out of the political firestorm for the time bring while refusing to give Obama a political victory by clearly declaring the ACA constitutional.
Is this possible? Certainly. But I think Franklin's analogy overstates the political constraints facing the Roberts Court in this case, and therefore overstates the likelihood that the Roberts Court will deploy the passive-aggressive virtues. In this particular set of political circumstances, the Roberts Court can decide pretty much whatever it wants and make it stick without fear of serious political reprisal?which makes ducking the case less likely.
In Marbury v. Madison, for example, Marshall's maneuvering was a necessity borne of the fundamental weakness of the Court?Jefferson would have refused an order to give Marbury his commission and Marshall knew it. The Pledge of Allegiance case the Court ducked involved a case where upholding the First Amendment claim would have been both enormously unpopular with both legislators and the public and would have been very difficult to enforce (requiring the supervision of countless school districts where the court's decision would be held in contempt and could be enforced only with expensive litigation). The Affordable Care Act, while politically divisive, is nothing like these cases.
First of all, the courts are most likely to duck issues when they fear political reprisal or think that political actors will not enforce their decisions. This is not, however, such a case. While the ACA is the centerpiece of the Obama administration's agenda, the 2010 midterms have fundamentally changed the political context. The coalition that passed the ACA could not be reassembled today; indeed, one house of Congress would strongly support a decision striking down the ACA and a majority of the other house consists of legislators who opposed the ACA or are lukewarm about it. Obama would be strongly critical of an adverse decision but there's no reason to believe that he would refuse to abide by it. As for the public, the ACA has never been terribly popular and polls suggest that at least in the short term a ruling holding the ACA unconstitutional would be popular with the public, especially if it applied only to the mandate.
The legal scholar Mark Tushnet has argued that during periods of divided government the courts have a very broad range of discretion because they can count on substantial political support. The ACA is a case in point; however it ruled the Court would enjoy enough political support to make a decision stick and would not have to fear meaningful retaliation. This doesn't make it impossible that the Court will duck a ruling on the ACA, but it does make it less likely. Fundamentally, the Court's ruling on the ACA will depend on what the median vote in the Supreme Court wants to do, and this week's oral arguments will shed the first light on that. My guess is that the final outcome will involve a ruling on the merits.
There are several folks in our society who are scratching their heads and asking themselves[...]
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The New Republic By Lionel Shriver, HarperCollins, 400 pages, $26.99
What if there were a war, and no journalists covered it? Alternately, what if there weren?t a war, and every journalist covered it? How might our lawmakers react? It?s worth remembering that in 1993, when Spy magazine prank-called U.S. congressmen, asking what the administration should do about ethnic cleansing in Freedonia, several of the officials demanded immediate action. Freedonia, as it happens, was not a warring Balkan land but the fictional setting of the Marx Brothers film Duck Soup. Spy soon exposed the trap it had laid, but are there not other fictions that go uncaught and unrevealed and end by affecting foreign policy? This is the provocative question that the writer and social observer Lionel Shriver sports with in The New Republic, her latest published novel and a satire about?of all things?terrorism.
?Provocative? is the right word for Lionel Shriver, a North Carolina?born writer who has lived chiefly in Belfast and London since the 1980s and who specializes in fearless novels, often set in foreign nations, that take on such sacred cows as marriage, civil war, philanthropy, family, and fidelity. Describing her fourth novel, Game Control (1994), about an American aid worker in Kenya under the spell of a demographer who believes that the best cure for poverty is death, Shriver wrote in an author?s addendum a decade later, ?I have a misanthropic streak a mile wide.? She mines this streak in her work to call attention to social hypocrisy, in the tradition of Jonathan Swift, William Thackeray, and Evelyn Waugh. After publishing for two decades, Shriver?s profile rose in 2005, when she won Britain?s Orange Prize for We Need to Talk about Kevin (2003), a thriller (recently made into a film starring Tilda Swinton) that shocked less for its subject?a bad-seed boy who goes on a Columbine-style killing spree?than for its subtext?the rejection of the inevitability of maternal love.
It?s no coincidence if Shriver?s literary influences reflect her time in Ireland and England. Yet it?s also no accident that the effort that belatedly won Shriver critical acclaim was set in New York City and its suburbs and is thoroughly American in sensibility. The reality and familiarity of the setting of We Need to Talk about Kevin couch her barbs so they can land more deeply. In 2007, she followed up with The Post-Birthday World, an entertainment set in London about a woman deciding whether to have an affair with a star player of the British game of snooker. But Shriver?s next significant novel, So Much for That (2010), feelingly portrays an American couple whose marriage is threatened first by staleness, then by cancer, and then by the inhuman U.S. health-care system. This author, one senses, sees this country as Kryptonite; yet paradoxically, when she returns here in her work, her force grows stronger.
The New Republic, though only now appearing in print, was completed by Shriver in 1998, near the end of a decade when the United States seemed fortunate and frivolous to observers overseas. The economy bobbed merrily on a high tide; credit was easy, unemployment was low, the dollar was high, and so was the American ego. Headlines at the time focused on the sexcapades of the president and even a bad omen like the botched World Trade Center bombing of 1993 had almost faded to a troubling memory. In a shirty author?s note, Shriver writes that, in 1998, she was unable to find a publisher for her satire because, three years prior to September 11, Americans ?dismissed terrorism as Foreigners? Boring Problem.? After the fall of the Twin Towers ended the national sense of detachment, she adds, her book risked being perceived to be ?in poor taste,? so she shelved it. Now, she suggests, ?sensibilities have grown more robust.? More to the point, so has Shriver?s literary reputation. Shriver writes that she is ?hopeful? that today the novel can ?see print without giving offense.? Of course, the hope she expresses here is disingenuous: The raison d?être of satire is to offend?wittily?so if the novel didn?t succeed in offending, its author would be out of luck. Not to worry.
The action in The New Republic takes place on the bleak southern tip of Portugal known as Barba (barba means ?beard? in Portuguese, and the region derives its name from the pointed, goatee shape of its borders). Known for its profusion of Moroccan immigrants and for its plentiful crop, the pera peluda?an acrid-tasting purplish fruit covered with kiwi-like hair?Barba is a wind-blasted ?dung-heap? of a place where nothing ever happens and where the only decent bar in the capital city, Cinziero, is called the Barking Rat (O Rato que Late). Unprepossessing though it may be, Barba luxuriates in international media attention, because it?s the home of a xenophobic separatist organization called the SOB (Os Soldades Ousados de Barba??the Daring Soldiers of Barba?). The SOB sponsors terrorist atrocities around the world, downing a British passenger plane, bombing a New York tourist attraction, and blowing up a crowded Delhi bus to gain attention for the cause of Barban independence. The SOB?s political arm, a legal party called O Creme de Barbear, refuses either to accept responsibility for the SOB or to denounce it but applauds its goal of independence. If, having read this far, you?re wondering why you haven?t heard of any of this before, that?s because the place and the nefarious group do not exist.
Like Ishmaelia, the war-torn backdrop of Evelyn Waugh?s dark comedy Scoop (to which Shriver pays homage), Barba is real enough for the purposes of this novel. As a putative hotbed of terrorism, it serves as a launching pad for the careers of a motley flock of foreign correspondents who have parachuted into Cinziero to pursue their self-serving dreams. There?s only one problem for these would-be Edward R. Murrows: The SOB doesn?t bomb at home, and at the novel?s outset, their global terrorist operation seems to have fizzled. The only reporter who (maybe) ever managed to make contact with a living, breathing SOB bandido is the swaggering Barrington Saddler (?Bear? for short), of New York?s National Record, and he has gone missing. The Record sends in a surly greenhorn named Edgar Kellogg?a midcareer lawyer who wants to reinvent himself as a newsman?to fill in as a stringer. But what stories can Eddie file with the SOB lying low?
Sulking and often pie-eyed on gin, whiskey, and choque?acrid beer made from the pera peluda?Edgar whiles away his Barba days praying for career-boosting carnage, envying Bear?s mythic reputation among the expat media, and lusting after Bear?s exquisite inamorata. Before long, he begins to wonder: Would it be an altogether bad thing if he gave the news a little nudge? Sure, it would play havoc with journalistic ethics ? but Edgar considers ?journalistic ethics? an oxymoron. ?Journalists need news,? he can hear Bear say: ?Deprive them of news long enough, and they?ll make their own?much the way the starving will eventually turn to cannibalism.? The ensuing chaos recalls the newsmen to life and invigorates the Barban independence push.
Shriver, who frequently defends her fondness for unlikable characters, probably doesn?t care if her readers dislike a man who sees terrorism as a stepping-stone to his brilliant career. In the aftermath of the Cold War, Edgar tells himself, his ?contemporaries were hungry for another all-purpose enemy.? Seen in that light, ?the SOB filled a psychological, even religious void.? If its destruction also fleshes out a cub reporter?s sparse résumé, so much the better. Nonetheless, Edgar feels like a caricature, and so do his cronies. This means that despite Shriver?s cleverness, the satire here is only effective, as Waugh might put it, up to a point.
In the aftermath of 9/11, a book like The New Republic doesn?t strike the reader as offensive so much as out of date?sometimes amusingly so, sometimes irritatingly so. One of the sacred cows Shriver pummels is the media, which she portrays as cynical and lazy. Fair enough?the media is always a safe whipping boy. But in the current age of downsized newsrooms and shuttered papers, it?s poignant to see the print media resurrected in Shriver?s pages with the blustering profile it enjoyed decades ago?reporters posturing with brusque brio, as sure of their own importance as Cary Grant in His Girl Friday. The journalists in this novel are self-absorbed, preening nonentities or soulless Machiavels, jousting for dominance whether competent or not. But Shriver?s other target is the whole terrorist enterprise itself, which she sends up as a band of goofily unserious amateurs. It?s hard to laugh at such a portrait, now that the protracted silly season of the deep-pocketed, complacent 1990s is over, and terrorists from regions more benighted than Barba have done significant harm.
History repeats first as tragedy, then as farce: With The New Republic Shriver takes a gamble, upending the famous formulation by making farce come before tragedy. It doesn?t pay off here. But in another decade?s time, the book may get a third chance to be appreciated, when it can be read as a time capsule unto itself and not as a tardy wake-up call to a country already on alert. In the meantime, here?s hoping that Shriver resumes her recent path and brings her social criticism back home.
In last week’s column, I talked about the tax treatment of various types of dividend payments … and toward the end, I said you could avoid most of the issues by investing in a tax shelter.
I realize that when a phrase like “tax shelter” comes up, most people think of shady businesses … secret bank accounts on tropical islands … or other sophisticated schemes. But the reality is that plenty of tax shelters are available to all of us — and there is simply nothing suspicious or illegal about them.
Take Individual Retirement Accounts, or IRAs. Nearly everyone has heard of them, loads of Americans use them to save and invest, and yet they ARE, technically speaking, . . . → Read More: Some of My Favorite Tax Shelters
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We've been keeping an eye on the 2 delegates from New Hampshire that became uncommitted when Jon Huntsman dropped out. Although there are three actual delegates, only 2 actual votes will be tallied at the convention.
The Granite Status has learned that Paul Collins, a senior strategist in former Utah Gov. Jon Huntsman's third-place New Hampshire finish and a Huntsman delegate, will be announced later today as moving to Mitt Romney.
Also supporting Romney will be Huntsman alternate delegate Brad Blais.
Collins says it's time for Republicans to united behind Romney as “the one candidate who can win in November.
Huntsman dropped out of the race on Jan. 16. He had earned three New Hampshire GOP delegates by finishing with nearly 17 percent of the vote in the Jan. 10 first-in-the-nation primary, according to data on the Secretary of State's web site.
His delegates were released when he dropped out.
Huntsman's other two New Hampshire delegates, consultant Sarah Crawford Stewart and business executive Renee Plummer, told the Status this morning they remain uncommitted. Plummer said she intends to remain uncommitted until the Republican National Convention in late summer. - Granite Status
For a full list of delegate allocations and primary information check out our Ultimate Republican Nomination Info Chart
Ben Bernanke gave a speech today about the economy and the labor market that I've seen variously described as too pessimistic and too optimistic. I think both sides are right. The main problem is weak demand, not a mismatch of available jobs vs skills,[...]
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Andrew Kaczynski reminds us of another great Mitt Romney moment, this one featuring the Mitt Romney of 2007 speaking a town hall about his views on energy policy. (I'm not yet sure exactly where the town hall was.)
So the bottom line is Mitt Romney was once willing to share sane thoughts with the world ... but now that he's a 2012er and Barack Obama is president, Romney wouldn't be caught dead saying any of the same things. Obviously, Romney wants people to believe that the Mitt Romney with whom they agree is the real Romney. The problem is that when you have his campaign admitting they see his positions as an Etch-A-Sketch, it becomes clear the Real Romney is a cynical opportunist who is more interested in obtaining power than doing what he believes is the right thing.
An ongoing investigation into payments made to high-profile figures speaking on behalf of an Iranian opposition group the U.S. considers a terrorist organization hasn't scared them away from advocating on its behalf.
Republican and Democratic politicians alike showed their support for the Mujahedin-e Khalq, or MEK, at two events last week: one in a Congress and one in France. The MEK and its supporters are campaigning to have the group removed from the U.S. State Department's list of officially designated terrorist organizations.
The events come at the same time the U.S. Treasury department is looking into speaking fees paid to supporters by MEK affiliates in the United States.
In Paris, former New York Mayor Rudy Giuliani, former U.S. Attorney General Michael Mukasey, former Homeland Security Secretary Tom Ridge, former U.S. ambassador to the United Nations John Bolton and former Rep. Patrick Kennedy appeared at a conference on Saturday sponsored by the French Committee for a Democratic Iran (CFID), a group formed in support of the MEK, according to a press release.
In D.C., Reps. Ileana Ros-Lehtinen (R-FL), Mike Coffman (R-CO), Ted Poe (R-TX) and Sheila Jackson Lee (D-TX) gathered at a Persian new year event held by MEK supporters in a Congressional committee room which was also attended by Tom Ridge.
The Houston Chronicle reports that Rep. Poe said that the State Department needed to give him more information about why MEK was still a threat to the U.S. "That information either doesn't either exist or they haven't provided it for me," he told the paper.
In Paris, Giuliani suggested he should go the former U.S. military base in Iraq where the U.N. and U.S. are working to move members of the group, to see if the conditions were okay for the group. "Let me see it with my own eyes," Giuliani said, according to a press release.
"In other words, let's see if my country that I love, the United States of America, is living up to the promise that it made to the people of Ashraf to protect them and to treat them decently or it's breaking that promise," he continued. "And if you don't want to send me, you can send Judge Mukasey or Tom Ridge or Patrick Kennedy or four or five of us and then you can put us before Congress and put us under oath and I assure you, we'll tell the truth about it and we'll get this resolved. Are we being misled or is the State Department breaking its promise to the people of Ashraf? Let's get an answer to it once and for all."
A press release from the California Society for Democracy in Iran related to the U.S. event quotes Rep. Dana Rohrabacher (R-CA), chair of the House Foreign Affairs Oversight and Investigations subcommittee, as calling the investigation into speaking payments "a travesty" and calling it a "sin" for the government to go "after these people trying to support the people of Iran."
The continued demonstrations of support for getting the MEK off the terrorist list come even as individuals who have spoken at MEK events are coordinating to hire lawyers to defend them in the investigation.