Steve Pearlstein: Why we should tell Corporate America to drop dead...

From Eat your broccoli, Justice Scalia, published on March 31st:

My first thought on perusing the briefs filed in the combined cases was to notice what wasn’t there: any involvement on the part of Corporate America.

For the past 20 years, big business has complained endlessly about escalating health-care premiums, which they correctly blamed on “cost-shifting,” including paying indirectly for the free care provided to the workers at firms that did not provide health benefits. They wanted an end to fee-for-service medicine that rewarded doctors for providing more care than necessary. Some even talked of reforms that would begin to move the country away from an employer-based insurance system.

Yet despite the fact that “Obamacare” did all of those things and more, there was not a single brief in support of the law from an organization representing big business.

Small businesses have spent the past two decades complaining that the reason they don’t offer coverage is that it’s too expensive because they don’t get the large-group and community rating advantage. So how did the National Federation of Independent Businesses respond to a law that assured small businesses the benefits of large-group purchasing and community rating and threw in billions of dollars in subsidies to boot? It signed up as one of the named plaintiffs challenging the constitutionality of the new law.

It’s hard to know what the business community will demand if the Supreme Court overturns the health-care law. At that point, however, it will hardly matter, since they will have lost all political credibility on the issue, particularly with the Obama White House and anyone who happens to be a Democrat.

If you want to watch the star-studded Prop. 8 play, you can watch it here (VIDEO)

All two hours of it.

Jonathan Cohn talks about a warning from the Courts to Obamacare opponents...

From today's piece:

At the moment, the case against the law in the hands of the appellate courts. Three sets of cases are pending, each one before a different Circuit Court. Last week judges from the Fourth Circuit, which sits in Virginia, heard the first of these cases. Early next month, judges from the Sixth Circuit, in Cincinnati, are supposed to hear the next one.

The Fourth Circuit judges, all of them Democratic appointees, seemed openly skeptical of arguments that the Affordable Care Act is unconstitutional. But the Sixth Circuit panel will include two judges appointed by Republicans and just one appointed by a Democrat. Most experts figure they will be more sympathetic to the lawsuit challenging the law's constitutionality or, at least, to the parties bringing it.

And maybe they will be. But, on Thursday, the judges sent a letter to lawyers from both parties. In it, they asked the lawyers to write briefs on three procedural questions. Two of them are about "standing" and "ripeness." (Or at least what I understand those concepts to be.)

The first question asks whether the plaintiffs can show they have suffered an injury or face an "imminent injury," even though the law doesn't take effect until 2014. The other asks for details on the penalties for violating the individual mandate and the extent to which they would actually cause "injury and hardship." As legal expert Timothy Jost and journalist Timothy Noah have pointed out, the law specifically prohibits the federal government from using criminal penalties to enforce the insurance requirement.

These questions are critical because, if the plaintiffs can't demonstrate that the Affordable Care Act has caused or will "imminently" cause them hardship, then they arguably have no right to challenge the law. And the Sixth Circuit judges don't seem to be the only ones pondering these issues. The Fourth Circuit judges, in Richmond, made a big deal about this in last week's oral arguments.

If you don't mention Congress in your pushback of the President, @Maddow, then you are lying to us

Per yesterday:

Visit msnbc.com for breaking news, world news, and news about the economy

If you have piece about Obama's retreat on GITMO, you are of course free to blast the President.  That is your right.

However, if you don't mention Congress's responsibility in this, you are lying to us, and wasting our time.

A little perspective on GITMO always helps...as Democrats allow us to cower in fear in the face of Terrorism

Well, we got the announcement that shocked absolutely no one:

Khalid Sheik Mohammed and four co-defendants accused of planning the Sept. 11, 2001, attacks will be prosecuted in a military commission, a decision that reverses the Obama administration’s long-held goal of bringing the men to trial in federal court as part of its overall strategy of closing the military detention center at Guantanamo Bay, Cuba.

Attorney General Eric H. Holder Jr. announced the decision during an afternoon news conference. He blamed barriers thrown up by Congress for the administration’s abandonment of one of its signature goals.

Holder called Congress’s intervention “unwise and unwarranted” and said he continues to believe that the case could have been tried in federal court in Manhattan or, as an alternative he proposed, in upstate New York. He said the Obama administration would continue to work for repeal of the restrictions Congress imposed and would prosecute other terrorism cases in federal courts.

But he said he decided that prosecution should go ahead in a military tribunal because the restrictions were unlikely to be repealed any time soon and because the families of the nearly 3,000 people killed in the Sept. 11 attacks have already waited too long for justice, which he said is “long overdue.”

You thought I was talking something else, weren't you?

Reverses. Really?

The Post makes it sound like the Administration up and changed its mind. Steve Benen speaks about what really happened:

The Attorney General "changed his mind" after Congress "imposed a series of restrictions"? That's a bit like saying I changed my mind about getting up after I was tied to my chair.

Holder told reporters this afternoon that his original decision was still the right one, but blamed Congress for "tying our hands."

He happens to be right. Even today, Holder wants to do the right thing, and so does President Obama. And yet, Gitmo is open today, and KSM will be subjected to a military commission in the near future, not because of an administration that backed down in the face of far-right whining, but because congressional Republicans orchestrated a massive, choreographed freak-out, and scared the bejesus out of congressional Democrats. Together, they limited the White House's options to, in effect, not having any choice at all.

There's plenty of room for criticism of the administration, but those slamming Obama for "breaking his word" on this are blaming the wrong end of Pennsylvania Avenue.

And Andrew Sullivan (gasp!):

The decision to try KSM in a military tribunal is as sad as keeping Gitmo open. He has, of course, been hemmed in by an irrational, panicked Congress. Maybe a civil trial would be impossible because of the torture inflicted on KSM by the last administration.

Of course, Chuck Schumer disappointed the hell out of me:

Chuck Schumer, New York’s senior Democratic senator, expressed relief that the trial would not take place in his home state. He said the move to put the 9/11 plotter through a military commission at Guantanamo Bay will allow him to get the “ultimate penalty,” and he said the decision is the “final nail in the coffin” of the “wrong-headed idea” to try Mohammed in New York.

“I have always said that the perpetrators of this horrible crime should get the ultimate penalty, and I believe this proposal by the administration can make that happen,” Schumer said in a statement.

Granted, Chuck is just out there representing his State, but I'll never call him a statesman. He's pandering to the baseless fears of New Yorkers. We have prosecuted Terrorists in this country, and jailed them int his country. 9/11 is no different.

Let me say that again: 9/11 is no different.

We could handle it then, we can handle it now.

Instead of standing up to Terrorism, like we imagine we do, we've caved to it, and a lot of Senators (like Charles Schumer) have enabled that cave.

The Story of the Citizens United Case, now with animation! (VIDEO)

I've never heard of "The Story of Stuff" before this, but...you can bet I'll be paying attention to them from now on. This was good stuff.

Okay, now a D.C. Court has upheld HCR. You know what that means?

...absolutely nothing.

Still goin' to the Supreme Court, where Anthony Kennedy (and probably Anthony Kennedy alone will decide its fate).

Still the decision by Gladys Kessler was welcome news.

The Affordable Care Act represents the last time Liberals will compromise on Health Care Reform

Conservatives...be damn careful what you wish for.  Because this ruling, also makes unconstitutional one of your preferred fantasies.

Ummm, what other thing would you like the Government to make us all go out and buy?

Would it be Stocks and Bonds...with your Social Security money, a scheme known as Privatization?

If you can't stomach the idea of being made to buy Health Insurance, how can you then justify making us all go out and buy stocks and bocks with our Social Security Insurance?

And you do realize that the Affordable Care Act represents something else, don't you?

It's the last compromise.

Yeah, because if you trash this, if you make this law invalid, we Democrats will be left with only one choice when it comes to reforming Health Care...that'd would be something we love, and you hate called: Medicare for all.

Yeah, Single...payer.

Not the Public Option.  Not Medicare at 55, Medicare...for...all.

Game on, fellas.

The next big and dangerous lie about Health Care Reform...

You watch it. What's going to happen is that the 26 Attorneys General who sued the Adminstration over Health Care Reform are going to seize upon Judge Vinson's ruling that the Law is unconstitutional, and start saying: "How dare the President enforce his unconstitutional law."

One problem.

Judge Vinson called the Law unconstitutional...sure.

He neglected...for some reason...to put a stay on it.

That's right, for all the hubbub and hoopla over this ruling, the Judge in the matter neglected stop it from being enforced. Mostly likely because he knew it wouldn't stand up in Court for more than a nanosecond.

Still, that won't stop a lot of Conservative douchebags and liars out there from proclaiming that the Law is unconstitutional. (Uhh, you've got two Judges saying it is, I got two Judges saying it is -- meet you at Anthony Kennedy's desk in a little over a year).

Once again, the Rhetoric around Health Care Repeal will escalate to dangerous proportions, because in their zeal to make their argument (which will be that the President is doing dangerous and unconstitutional things), we continue down the road that led to Congresswoman's shooting, only this time the the consequences might be far, far more tragic.

Greg Sargent: Looks like Judge Hudson decided to re-write the Commerce Clause...

Wasn't that nice of him?

Tim Jost, a professor of law at the Washington and Lee University Law School, dismissed this argument, deriding it as a fundamental misreadling of the Constitution and claiming that the judge has "rewritten the Commerce Clause."

Jost, who spoke to reporters on a conference call organized by the pro-health reform Center of American Progress, accused Hudson of an overly narrow reading of the Commerce Clause. He said the judge's reading turned on the idea that the Commerce Clause only focuses on regulating economic activity, when in fact it also empowers Congress to regulate economic decisions that are "not immediately classifable as activity."

The Commerce Clause, Jost said, "really turns on economic decisions." By this Jost means that the Commerce Clause empowers Congress to step in and regulate when Americans fail to participate in economic activity in a way that impacts interstate commerce. In other words, failing to purchase health insurance does not constitute economic activity -- in a sense it's the absence of economic activity -- but Congress can step in anyway.

Jost argued that the Supreme Court has already upheld the right of Congress to regulate such economic decision-making. For instance, Jost noted, in the 1942 case Wickard v Filburn, the Supreme Court ruled that the Commerce Clause gives Congress the authority to prohibit wheat farmers from growing wheat for their own use. This forced them to participate in interstate commerce to get wheat.

The Constitution, by the way, empowers Congress "to regulate Commerce with foreign Nations, and among the several States."

Jost noted that with Wickard v Filburn, the Supreme Court affirmed Congress' authority, under certain circumstances, to step in and force participation in interstate commerce when individuals declare: "I'm not in the stream of commerce. I'm just out here on my own." This is directly comparable to the debate over the individual mandate, Jost pointed out.

"This decision is very defective," Jost concluded, "and will be reversed by the appellate court or the Supreme Court."

How to separate the Lazy from the non-Lazy among the Media when it comes to the Health Care Reform ruling.

Do they say something like Jonathan Chait or Ezra Klein does?

Second, even given the above, Hudson conceded that striking down the individual mandate would not invalidate the whole Patient Protection and Affordable Care Act. If you strike the individual mandate but leave the rest, you have a system that could easily be patched up with a better mechanism to avoid free-riding. The real loser here is the health insurance lobby. Health insurers would have preferred to avoid any health care reform at all. But the health insurance lobby's second-highest priority would be a working system with an individual mandate. A world in which they cannot discriminate against sick people but in which healthy people can avoid buying insurance until they're sick is a nightmare.

The health insurance lobby spent tens of millions of dollars to defeat health care reform. They have a lot of pull among Republicans. A system that gouges the health insurers but keeps in place the subsidies and regulations liberals want is not a status quo I see lasting very long.

Or are they Huffington Post?

Anyone...and I mean anyone who wrote today that the Health Care Reform was ruled unconstitutional either is lazy, stupid or both...and let's just say there are a lot of lazy and/or stupid folks among media of all classes.

Because people who write what Jonathan and Ezra did, took a little time, and...you know...read the decision.

Ezra Klein: The Virgina Judge's ruling is good news for Health Care Reform?

Really?

Hudson's ruling is the third from a district court so far. Previously, Judge Norman Moon found the mandate constitutional, and so too did Judge George Steeh. Both Steeh and Norman were Clinton appointees, which is to say that so far, the rulings are proceeding along predictably partisan lines.

Hudson ruled against the government, but he didn't stop it. He refused the plaintiff's request for an injunction against the legislation's continued implementation. The construction of the bill's infrastructure will continue. And second, he refused to overrule anything but the individual mandate itself.

The real danger to health-care reform is not that the individual mandate will be struck down by the courts. That'd be a problem, but there are a variety of ways to restructure the individual mandate such that it doesn't penalize anyone for deciding not to do something (which is the core of the conservative's legal argument against the provision). Here's one suggestion from Paul Starr, for instance. The danger is that, in striking down the individual mandate, the court would also strike down the rest of the bill. In fact, that's exactly what the plaintiff has asked Hudson to do.

Hudson pointedly refused. "The Court will sever only Section 1501 [the individual mandate] and directly-dependent provisions which make specific reference to 1501." That last clause has made a lot of pro-reform legal analysts very happy.

Breaking: A Judge in ole Virginny strikes down a court challenger to Health Care Reform!

I'll take what I can get!:

A federal judge in Virginia on Tuesday dismissed a lawsuit challenging the landmark healthcare law championed by President Barack Obama, upholding key provisions that require health insurance coverage.

The challenge, one of several attempting to strike down the law, was brought by the conservative Christian Liberty University and individuals who said the law would violate several parts of the U.S. Constitution.

However, U.S. District Judge Norman Moon ruled that the law requiring individuals to buy health insurance coverage as well as requiring employers to buy coverage for their employees was legal under the Commerce Clause of the U.S. Constitution.

Moon found that without the coverage requirements in the law, the cost of health insurance would increase because the number of insured individuals would decline, "precisely the harms that Congress sought to address with the Act's regulatory measures."

Further, interstate commerce would be hurt by large employers failing to offer adequate healthcare coverage, thus "the employer coverage provision is a lawful exercise of Congress' Commerce Clause power," said Moon, who was appointed by then-Democratic President Bill Clinton.

Former Alaska Judge Joe Miller is going to get someone Court-Martialed...

You'd figure that a former Judge would've known better that...I don't know...arresting a Journalist with your own private Security force, yet...here he is doing just that.

But I had to have private Security force. The School I hired out made me.

Well...

Was Joe Miller required to bring a security detail to his town hall meeting Sunday at Central Middle School in Alaska?

That's what Miller, the Republican Senate candidate, told two national cable news networks Monday in the wake of the arrest by his security squad of an online journalist at his public event.

But the school district said there was no such requirement made of Miller -- he only had to provide a hall and parking lot monitor, and advise participants of school district courtesy and food rules.

So that's one bald-faced lie.  He needed a teenager with maybe a flashlight.  Instead, he used a bunch of Active-Duty Soldiers to rough up a journalist.

And there's even a major problem with that:

Meanwhile, the Army says that two of the guards who assisted in the arrest of the journalist and who tried to prevent two other reporters from filming the detention were active-duty soldiers moonlighting for Miller's security contractor, the Drop Zone, a Spenard surplus store and protection service.

The soldiers, Spc. Tyler Ellingboe, 22, and Sgt. Alexander Valdez, 31, are assigned to the 3rd Maneuver Enhancement Brigade at Fort Richardson. Maj. Bill Coppernoll, the public affairs officer for the Army in Alaska, said the two soldiers did not have permission from their current chain of command to work for the Drop Zone, but the Army was still researching whether previous company or brigade commanders authorized their employment.

The Army allows off-duty soldiers to take outside employment if the job doesn't interfere with their readiness, doesn't risk their own injury and doesn't negatively affect the "good order" and discipline of their unit, Coppernoll said.

"They've got to be up front with the chain of command," Coppernoll said. "The chain of command needs to agree they can do that without affecting the readiness and the whole slew of things that are part of being a soldier that they need to do first."

Miller's chief guard at the Middle School event, Drop Zone owner William Fulton, said it wasn't his job to ensure soldiers complied with the regulations, though he said he informs them of their duty.

"They're adults -- they are responsible for themselves," Fulton said.

The fact that they were employed isn't the only problem, the fact that their employment involved them in a Political campaign, is what's going to get them into real trouble.

What was that phone call from Ginny Thomas to Antia Hill REALLY about?

There was a New York Times article that appeared just a day before Ginny Thomas placed that ridiculous phone call.  The article's author, Jackie Calmes, is interviewed in the video below, along with Fort McHenry fave, Dahlia Lithwick.



The ethical questions are really starting to mount up, between this and the Koch Party Thomas and Scalia attended.

The New York Times article can be found right here.

Why is the Justice Department defending a DADT Policy President Obama opposes.

Huffington Post (actually reposting an article from AP) commits an actual act of...gasp...journalism. I actually learned something I did not know (but certainly suspected) in this article.  (Too bad they didn't write it.)

President Barack Obama opposes the Pentagon's "don't ask, don't tell" policy on gays in the military, so why are Obama administration lawyers in court fighting to save it?

The answer is one that perhaps only a lawyer could love: There is a long tradition that the Justice Department defends laws adopted by Congress and signed by a president, regardless of whether the president in office likes them.

This practice cuts across party lines. And it has caused serious heartburn for more than one attorney general.

The tradition flows directly from the president's constitutional duty to take care that the laws are faithfully executed, says Paul Clement, who served four years in President George W. Bush's administration as solicitor general, the executive branch's top lawyer at the Supreme Court.

Otherwise, Clement says, the nation would be subjected to "the spectacle of the executive branch defending only laws it likes, with Congress intervening to defend others."

That is why solicitors general not only serve the president who nominated them but also have a special duty to Congress, "most notably, the vigorous defense of the statutes of this country against constitutional attack," Justice Elena Kagan testified to Congress in 2009 after Obama nominated her to be solicitor general. She joined the Supreme Court a year later.

UPDATE: 2:57pm: Steve Benen has more:

Do the Thomases just have no shame whatsoever?

In case you were under the impression that Clarence Thomas was the most brazen, most shameless member of his family.

In case you missed the message that Virginia Thomas left for Anita Hill, it went something like this:

Good morning, Anita Hill, it's Ginny Thomas. I just wanted to reach across the airwaves and the years and ask you to consider something. I would love you to consider an apology sometime and some full explanation of why you did what you did with my husband. So give it some thought and certainly pray about this and come to understand why you did what you did. Okay have a good day.

More stories that are not getting enough coverage: The U.S. District Courts ruling on Health Care.

First, the overall picture from Jonathan Cohn:

The future of health care reform just became a little more secure, thanks to a federal judge in Detroit.

On Thursday, U.S. District Judge George Caram Steeh issued a ruling in Thomas More Law Center v. Barack Obama. It's one of a dozen lawsuits the opponents of health care reform have filed in federal courts, in an effort to roll back the Affordable Care Act. But it is the first case in which a judge has issued a verdict. And the verdict is pretty much a wholesale win for reform.

The plaintiffs in this case are the Law Center, a conservative public interest law firm based in Ann Arbor, Michigan, along with some Michigan residents. The focus of their lawsuit is the individual mandate--the requirement, which becomes effective in 2014, that all Americans obtain a "creditable" health insurance policy. ("Creditable" is wonkspeak for a policy that includes basic benefits, as defined by the government.) According to the plaintiffs, the federal government has no right to impose that requirement, since it would compel people to spend money on health insurance instead of some other good.

In response, the Obama Administration has argued the authority to impose the mandate lies in two separate constitutional provisions--one that gives the federal government power to regulate interstate commerce and one that gives the federal government power to tax for the sake of promoting the general welfare. Steeh basically agreed with both propositions.

From the ruling itself (courtesy Andrew Sullivan):

The health care market is unlike other markets. No one can guarantee his or her health, or ensure that he or she will never participate in the health care market. Indeed, the opposite is nearly always true. The question is how participants in the health care market pay for medical expenses — through insurance, or through an attempt to pay out of pocket with a backstop of uncompensated care funded by third parties.

This phenomenon of cost-shifting is what makes the health care market unique. Far from “inactivity,” by choosing to forgo insurance, plaintiffs are making an economic decision to try to pay for health care services later, out of pocket, rather than now through the purchase of insurance, collectively shifting billions of dollars, $43 billion in 2008, onto other market participants.

Back to Jonathan Cohn:

But the premise of Steeh's legal argument seems to be a notion about policy--that it's not possible to regulate the insurance industry, in a way that would make coverage available to all people, without compelling every person to get coverage. On that count, I would argue, Steeh is correct.

So what does this mean for the repeal movement? My limited understanding, informed by a few casual conversations with some law professors, is that Steeh's decision is consistent with the traditional understanding of the Commerce Clause--that the only way to throw out the mandate would be to reexamine conventional assumptions about the Commerce Clause. That would be a fairly radical move.

And finally, Ezra Klein:

There's no "right" argument here. No one doubts that health-care reform would be constitutional if Antonin Scalia decided to pursue his passion for beekeeping and allowed President Obama to appoint his replacement. The only reason there's any question about the law's constitutionality is that conservatives appointed five of the nine sitting justices, and conservatives have organized against the constitutionality of a proposal they once considered not just constitutional, but desirable as a matter of public policy.

And so it goes. Politics is politics, and the Supreme Court is, at this point, deeply and unquestionably political. I continue to think it unlikely that they will want the sort of direct confrontation with the political system, and with the Democratic Party, that overturning health-care reform would entail. But only time will tell.

D.W.M. (There and back again, Edition)

Maybe cab-attacker Michael Enright was who we thought he was all along.

According to the New York Daily News (via TPM):

When he was arrested Tuesday in midtown, Enright had a personal diary filled with pages of "pretty strong anti-Muslim comments," a police source said.

The source said Enright's journal equated Muslims with "killers, ungrateful for the help they were being offered, filthy murderers without a conscience."

And check out the picture of himself he posted on Facebook.

Yeah, I wanna be his friend...and I take back what I said yesterday.

Let's be honest, posing with a pump-action shotgun, rockin' it like you're playing Guitar Hero doesn't make you're crazy.  But couple this photo after you've tried to throat slash a New York Cabbie???

D.W.M., continued (More weirdness)

According to TPM, the Driving While Muslim story keeps getting weirder and weirder...

Michael Enright is a film student at the School of Visual Arts in Manhattan and has been working with the Intersection International, an interfaith and multicultural effort which seeks to promote justice and peace. The project's website is strongly supportive of the Cordoba House project in lower Manhattan and videos of its leader, Imam Faisel Rauf, are posted on their website.

The 21-year-old aspiring filmmaker had been to Afghanistan recently, working on a documentary on a Marine unit his high school buddy served with. His earlier efforts to embed with his friend were the subject of a profile in the local paper.

The documentary he was working on was "completely nonpolitical," Enright told the newspaper. "It's just showing the young people who are spearheading our foreign policy. They're doing what I don't have to do."

Enright told police he had been working with an Internet media company and had recently spent time with a combat unit in Afghanistan filming military exercises according to The New York Post.

A former high school classmate of Enright's, speaking to TPMMuckraker on background, expressed shock about the crime and spent the morning eliminating electronic footprints that connected the two. "It's just disgusting, sad, horrific," he said, adding that, like the group Enright was working with, he supports the Cordoba Project.

You gotta figure that something about Enright was chemically amiss. If he really had truck against Muslims (like say an Cordoba House basher), he had ample opportunity to get stabby in Afghanistan (or maybe he was worried about being outnumbered).

Still, at the very least, this is a person skilled in dealing with Muslims on a daily basis on their home turf. What sets him off her? Either strong drink or a chemical inbalance of another kind, which is going to require a Doctor's help.