Score one on one of my predictions

Back in February, I predicted that opposition research into Romney would find its best treasure trove in Bain Capital. However, the fruits of the research wouldn't come out until the general election.

Now, political ads on Bain Capital are hurting Romney. There are also other question on how he amassed huge amounts in his IRA account. Technically, we aren't yet in the general election, but yes we are in a way. We know Romney will be the GOP nominee, so now's the time for that juicy op-research to be revealed. What will we learn? I'm not usually a gossip, but I'm hoping for something truer and more interesting than Obama introducing the non-radical Derek Bell.

Image: newyorker.com

The obscure motives of John Roberts

Conservatives can't understand why Roberts deserted them when deciding that the Obamacare mandate was constitutional. Only a few take his opinion at face value as "a fully plausible case." Here's a list of the some of the reasons conservatives suggest for Roberts' betrayal:

1. Roberts was prone to political pressure, but other justices aren't
2. The liberal media was pushing the idea that the court was political and that it was a political choice to overturn this liberal legislation, and Roberts folded under the pressure
3. The president humiliated the justices at the State of the Union address, and Roberts caved under this pressure.
4. Roberts saved the court from charges of political division and helped salvage the reputation of the court, but at the cost of deciding the issue on constitutional grounds.
5. Roberts saved the court from charge of political division so the court can be even more conservative in its next term.
6. Roberts was bribed or blackmailed, and there really should be an investigation of this most foul crime.
7. The jinxed theory - Several supposedly conservative justices have turned moderate or even liberal, but not the other way.
8. Here's an even longer list, if you aren't tired already.

Critiques of (some of) the theories

#2. The belief that he was intimidated by the liberal media is laughable. There are enough conservatives around so he wouldn't feel outnumbered. He's shown no signs before of being intimidated before, even on a big case like Citizens United. No, this speculation smacks of "blame the media" overreach. The idea that a lifetime appointee to the highest court in the country will be meek and wishy-washy, and base a ruling on gabbing bloggers, reporters, and anchors is crazy. The justice may be beholden to the president who nominated him or a particularly strong senate supporter, but to the media in our fragmented news age?  Come on.

#4. People who generally like John Roberts want to ascribe a noble motive, and the favorite choice is that  he wanted to salvage the reputation of the court by not striking down this highly political program. The supporters of this theory are at least moderate in their criticism, instead of being in the "string him up" camp. They are also realistic in acknowledging the specter of Bush v. Gore.

#6. This a black helicopters/jackboots/demonic-Democratic party conspiracy theory that will be impossible to disprove even when there's absolutely no evidence. So it must be true.

#7. The 'jinx' theory is more a superstition than a logical theory. However, it's a particular favorite of mine. It seems odd that only the good ones (conservatives) become possessed, never the bad ones being possessed by good spirits.  However, back in reality, there's a different explanation: Souter was always moderate; O'Connor was always a woman, and women will see some things differently; Kennedy reportedly has a libertarian streak; Earl Warren--I don't know.

Slippery Logic

All the theories ignore the opinion itself, which lays out the logical reasons for his choices, including precedents on which he relied. As I've said before, these positions are logical, both pro and con. It's not as though one is clearly logical and the other illogical. Instead, it's a matter of how much value you put on this argument versus that one, this outcome vs. that one.

I'm Guilty too

I offered my own theory--that Roberts wanted to salvage some of the Obamacare law, and only the liberals would then talk with him. Who knows, and would they tell us? Probably not, but I'm used to unsolved mysteries and truth that remains hidden. Speculation is OK as long as it's treated as such. I wonder in six months whether there will be any buzz at all about this issue. I hope so, because I believe the Supreme Court is too political, and I'd like to see the dynamic change even more. Oops, now I've really set myself up for disappointment... again. It's the bane of the optimist.

They forgot to look here for the reasons.

Image:columbianacountylawlibrary.com

 

 PS. I haven't exhausted my thoughts on the ACA ruling yet. I hope others share my fascination with this twist in American politics and jurisprudence.

Judicial activism (or not) in the Obamacare ruling

Most people don't want to wade through the Supreme Court ruling on Obamacare, and I don't blame them. I couldn't read the whole thing (193 pages) either. However, here is my attempt, based on what I did read, to lay out the arguments the justices found compelling.

Both arguments have very strong points. The dissent skewers the devices the majority used to maintain the legislation (starting at p.142), specifically turning the mandate/penalty into a tax, despite the fact that the legislation wasn't written as a tax.

Chief Justice Roberts, writing only for himself, points out that the Court doesn't overturn legislation lightly and that the precedent is that "every reasonable construction must be resorted to, in order to save a statute from unconstitutionality" (p. 3). He found that the power to tax was a reasonable argument. The liberal justices didn't agree with his reasoning, but agreed with the upshot, which was that the mandate could stay.

The minority doesn't actually refute the argument that Court should try to find a any to uphold Congress's laws. Instead, they hammer away at how the law created what looks and acts like a penalty, so it not should be interpreted as a tax. They also cite precedents for why the law must be judged as is rather than 'adjusted' to squeak by on the constitutionality question.

As in so many contentious issues, there isn't a single argument that blows away the rest of them. I support the argument that the law goes too far for justification under the Commerce Clause. But my support isn't based on knowledge the Commerce Clause precedents--it's more like me saying "Sounds reasonable to me."

Beyond the legal logic in the opinion, I'm fascinated that Chief Justice Roberts would square the circle rather than throw out this law. He hasn't been as respectful of other laws. This opinion could easily have gone the other way, and I don't see a strong reason why it didn't.

For all the speculation on why Roberts ruled as he did, see my next post.

Roberts' decision process

Image: wikipedia.org

Update 7/9/12. Here's an interesting critique of Roberts' mistakes. This critique inadvertently supplied me with another point in favor of Roberts' ruling: that capitation taxes (a per-head tax) are constitutional, and that this kind of tax is constitutional a "shared responsibility."

My interpretation: we all have healthcare expenses in this country, so carry insurance, get one of the limited waivers, or pay a tax. I can believe that would be constitutional.

 

Short: The Wall Street Journal on Romney

There's a fair amount of buzz about a WSJ editorial criticizing Romney as a campaigner. It levels several charges against him:

• His campaign is disorganized.
• He's clinging to the Massachusetts mandate as OK.
• He isn't clearly explaining what his policies would be and why they'd be better.
• He isn't being a good spokesman for the GOP vision of better government.

Liberal critics of Romney are naturally enjoying the opportunity to repeat the WSJ criticism of Romney. However, they invariably leave out the best advice to Romney, even those who quote the article at length. This is the clincher advice that liberals prefer to ignore:

Mr. Romney should use the Supreme Court opinion as an opening to ... show voters that Mr. Obama's spending ambitions are so vast that they can't be financed solely by the wealthy but will inevitably hit the middle class. 

To me that sounds like a good, solid point. What is keeping journalists from repeating that part of the editorial? It couldn't be partisanship or media bias, could it?

Image: rulesofthetrifecta.com

Roberts sided with flexibility

Everyone was thrown for a loop last Thursday when Chief Justice John Roberts was the swing vote in the 5-4 decision upholding most of Obamacare, and changing just the penalty if a state opts out of expanding Medicaid.

Since then, John Roberts has been massively reviled by conservatives, who immediately started calling him a RINO, traitor, wimp, etc. However, I noticed that Roberts worked with the justices who were willing to show flexibility. The four dissenters (Scalia, Thomas, Alito, and Stevens) wanted to throw out the entire law--every single part. It seems that Roberts saw parts of it that were within constitutional bounds and he wanted to allow those parts to continue, which is reasonable because the law was passed by duly elected officials.

Since the conservatives weren't willing to let any of the law survive, Roberts was driven into the arms of the liberals, who didn't take an all-or-nothing stand. They didn't force Roberts to except the mandate as within the rights of Congress under the Commerce Clause. Instead, they joined in allowing it on taxing authority. This argument had been made in court, so it wasn't an invention of the justices. The liberal justices also gave in to severing the Medicaid expansion from the penalty for not expanding (loss of all Medicaid money).

This is a rare win for flexibility, but a terrific one. Conservatives and the GOP should take a lesson.

Image: freerepublic.com

Extras: Most cited insider article; a bit long but fascinating throughout. Many legal opinions from a law site. The text (193 pages) of the ruling.

What is slowing the economy: Low demand, not Dems

First the apology and the explanation. This is the first post that I totally lost, despite some effort to save it. I'm sorry, but I'm not going to try to reconstruct the whole thing. Instead I'll give just an outline. Sorry about that, but I'll keep all the highlights. (Unless my prose was the highlight for you, which I don't think is likely.) Here goes. The post roughly said:

• The GOP blames regulation, current poor Dem policies, and uncertainty over healthcare and taxes for lack of higher growth in private enterprise.
• However, this GOP talking point wasn't based on this survey, which showed that lack of demand is the biggest problem for businesses.
• It's not surprising if investors aren't spending or investing that much after the rollercoaster of 2007-2008. They're holding on the cash that they have.
• This situation won't last forever as long as the economy doesn't tank again. Eventually physical needs will push people and investors to spend more, and the uptick in spending will nudge the business cycle into an upward trend.
• Please don't try to goose demand with low interest rates from the Fed forever, a big stimulus, more tax cuts, etc. Those haven't worked to build demand, and they'll just make the deficit worse or have other negative consequences.

More about Fast and Furious than you ever heard from Congress

I've been slightly interested in the Fast and Furious newstory, but not very much.  Here's my quick assessment: it looked like an ill-conceived program conducted at a low level of government, but is being exploited  to smear higher-level officials. It might be more interesting as a sign of the divide in news reporting, where conservative media are running the story 10 times as much as MSM.

Now, based on a tip from a plain blog comment, I started reading some of the details about the people involved in the operation. It's interesting to read about the gun situation in Arizona, the difficulty in getting charges against gun runners, and infighting in the ATF office that made this blow up in the national media.

Also interesting are the facts that different players emphasize and what is left out. Compare and contrast the facts in Fortune's The Truth about the Fast and Furious Scandal and the facts in a conservative blog post Fast and Furious: 22 Shocking Facts about the Scandal That Could Bring Down the Obama Administration.

I'm not going to try to meticulously sort truth from spin in these articles, because my quick assessment seems accurate in the light of additional research. If there is a scandal here, it's how easy it is to purchase guns and hand them over to unsavory people. That seems to be the root of the problem and the reason for the ATF operations, but I'm not going to start a vain campaign for tighter gun control.

However, I will point out when the facts are skewed. Truth is something I'll fight for anytime.

Arizona gun store: Bulk sales are our right

Photo:roselawgroup.com

Extras:

• Conservative news blog implicates a prosecutor who contributed to Obama. Lots of detail.
• This conservative blog points out what might be the most egregious action in the F+F operation--agents asking gun dealers to sell to customers they'd otherwise turn away.  Also supported by the LA Times.
• This post attacks an author, and points out some interesting numbers. Makes me wonder--how many guns did the operation allow into Mexico, and how many guns end up there without the ATF knowing? Is anyone interested in both numbers, or only the number that supports their established viewpoint?
• The only (legal) Mexican gun store.