Moving On to That Miserable Hack

"Pick a card, any card"

Eric Holder, aka "The Resurrector" was held in contempt by the House.  Final score 255-67, 1 "present", and 17 Democrats voting "aye".  So it was bipartisan.  Also noted was the childish trend of walking out  (100 Dems participating) when things aren't going your way.  Personally, I like my lawmakers to stand and fight.

Money quote: "Democratic leader Nancy Pelosi of California joined the boycott, saying Republicans had gone "over the edge" in their partisanship."

You got that Republicans?  How dare you try and find answers to the death of border agent Brian Terry and 300 Mexicans.  How dare you vote under such partisan grounds that multiple Dems actually joined in.  How dare you garner more Democrat votes for contempt than Obama received for all of his budgets put together.  How dare you pass bipartisan bill after bipartisan bill in the House only to have them await action in a Democrat dominated Senate.  How dare you vote Holder in contempt in a bipartisan fashion while a strictly partisan Democrat group goes fleebagger.

I think we all know who has gone "over the edge" in their partisanship.

BTW, a quick way to judge if something is racist: if the Rev. Al Sharpton sticks his fat head in any given issue, said issue is not racist.  At all.  The Rev. Al, on the other hand...

ed-I tried to make a donation on Wed. to the Romney campaign and it got buggerred.  Anyone else have this problem?  Re-donated yesterday and it went through.  Nervous, first time donating and all.

Roberts Stands Alone

First and foremost, from this point on nobody should ever refer to the ACA as "Obamacare".  It shall be called "Obamatax", or some permutation thereof so long as it includes "Obama" and "tax".

In evaluating the oral transcripts from March, bloggers (myself included) and many other legal experts made an oversight in assuming that the court would find the mandate as a breech of the Commerce Clause, and thus the mandate would be struck down.  These were the most detailed of arguments covering the minutiae of "uniqueness", "activity" vs. "nonactivity" and so forth.  Stuff worth arguing about.  Separate was the issue of tax vs. penalty.

We were right.  And we were very, very wrong.

The Supreme Court today upheld the mandate in Obamatax to be constitutional on the grounds of it being within the taxing powers of the federal government.  As expected, the court found the mandate outside of Congress' power with respect to the Commerce Clause.  Onto the highlights (warning: I might use profanity):

The Bad-Upheld as a Tax?

p3 of Roberts' Summary:
"In pressing its taxing power argument, the Government asks the Court to view the mandate as imposing a tax on those who do not buy that product. Because "every reasonable construction must be resorted to, in order to save a statute from unconstitutionality,"

Analysis: Roberts is saying that he is empowered to find a reason something is constitutional.  Note the word "reasonable" is used.  Blech.  I work in IP law (patents), and "reasonable" is incredibly subjective. I don't agree with Roberts' "reasonable" standard.

p4. of Roberts' Summary:
"In answering that constitutional question, this Court follows a functional approach,"[d]isregarding the designation of the exaction, and viewing its substance and application.""

Translation: Roberts purposely disregarded the word "penalty" and looked for a "tax" definition.

p4. of Roberts' Summary:

"Such an analysis suggests that the shared responsibility payment may for constitutional purposes be considered a tax. The payment is not so high that there is really no choice but to buy health insurance; the payment is not limited to willful violations, as penalties for unlawful acts often are; and the payment is collected solely by the IRS through the normal means of taxation. Cf. Bailey v. Drexel Furniture Co., 259 U. S. 20, 36–37."

Analysis: even though it's called a penalty, it can also be called a tax.

p12. of Roberts' Opinion:
"Congress, however, chose to describe the "[s]hared responsibility payment" imposed on those who forgo health insurance not as a "tax," but as a"penalty." §§5000A(b), (g)(2). There is no immediate reason to think that a statute applying to "any tax" would apply to a "penalty.  Congress’s decision to label this exaction a "penalty"rather than a "tax" is significant because the Affordable Care Act describes many other exactions it creates as "taxes." See Thomas More, 651 F. 3d, at 551. Where Congress uses certain language in one part of a statute and different language in another, it is generally presumed that Congress acts intentionally. See Russello v. United States, 464 U. S. 16, 23 (1983)."

Analysis:...the f%^k is he talking about?  Congress and Napoleon himself explicitly promised the mandate was a penalty, and not a tax.  It was passed deliberately as a penalty.  The word "tax" was intentionally not used.  Then why is he calling this a "tax"?  He is arguing the intent, and deliberately changing the definition of a penalty.  It's at this point I noticed that I was sweating.

p13. of Roberts' Opinion:
"Congress can, of course, describe something as a penalty but direct that it nonetheless be treated as a tax for purposes of the Anti-Injunction Act."

Analysis: Congress is allowed doublespeak.  Got it. 

But it's still a penalty, Roberts, because that's the way it was written.  And what's wrong with forcing Congress to live up to the standard of using a word's actual definition?

Summary of Roberts' Opinion: the mandate fails "uniqueness", it's necessary but not proper, and the federal government cannot create activity by compelling individuals to enter into commerce against their will.  Furthermore, if the mandate were to stand under the Commerce Clause the power retained by Congress would be virtually limitless, so the line must be drawn here.

But call it a tax and everything's cool.

Other Notes:

• Double Standard Industries pays Dean over at Beers With Demo 375 (100 investment + 275 payout) internet dollars.  Congratulations.
• Hey I correctly interpreted Kennedy's vote (who cares).
• Ginsberg, like all liberal judges argues that the mandate is necessary so it's proper in her separate concurring opinion.  Her opinion is garbage based on the line that the mandate "solves an economic and social problem" (see Ginsber's opinion at p.12).  Bullshit, it solves an economic problem.
• Another promise made by Napoleon regarding of Obamatax has been broken.
• Know who loves having their taxes raised?  Young adults, small businesses, the middle class.  And I hope they reward Napoleon by voting in November.
• Ann Althouse's opinion of the verdict "President Romney".
• Snark aside, this is a huge loss.  The opportunity to reign in federal power was there, and now it's gone.
• Roberts drew a clear line for Congressional power under the Commerce Clause.  Then gave them a loophole to get around it.
• Where do we go from here?  Well, I'd say the Tea Party hornet nest was just stirred.  My hope is that others wake up and realize what exactly just happened.

I'm spent.  Let down.  Angry. 

I think I'll take the dog for a walk, take a shower, and cook a steak.  And I leave you all with the closing dissent from Kennedy et. al:

 

The Court today decides to save a statute Congress did not write. It rules that what the statute declares to be a requirement with a penalty is instead an option subject to a tax. And it changes the intentionally coercive sanction of a total cut-off of Medicaid funds to a supposedly noncoercive cut-off of only the incremental funds that the Act makes available.

The Court regards its strained statutory interpretation as judicial modesty. It is not. It amounts instead to a vast judicial overreaching. It creates a debilitated, inoperable version of health-care regulation that Congress did not enact and the public does not expect. It makes enactment of sensible health-care regulation more difficult, since Congress cannot start afresh but must take as its point of departure a jumble of now senseless provisions, provisions that certain interests favored under the Court’s new design will struggle to retain. And it leaves the public and the States to expend vast sums of money on requirements that may or may not survive the necessary congressional revision.

The Court’s disposition, invented and atextual as it is, does not even have the merit of avoiding constitutional difficulties. It creates them. The holding that the Individual Mandate is a tax raises a difficult constitutional question (what is a direct tax?) that the Court resolves with inadequate deliberation. And the judgment on the Medicaid Expansion issue ushers in new federalism con

The values that should have determined our course today are caution, minimalism, and the understanding that the Federal Government is one of limited powers. But the Court’s ruling undermines those values at every turn. In the name of restraint, it overreaches. In the name of constitutional avoidance, it creates new constitutional questions. In the name of cooperative federalism, it undermines state sovereignty.

The Constitution, though it dates from the founding of the Republic, has powerful meaning and vital relevance to our own times. The constitutional protections that this case involves are protections of structure. Structural protections—notably, the restraints imposed by federalism and separation of powers—are less romantic and have less obvious a connection to personal freedom than the provisions of the Bill of Rights or the Civil War Amendments. Hence they tend to be undervalued or even forgotten by our citizens. It should be the responsibility of the Court to teach otherwise, to remind our people that the Framers considered structural protections of freedom the most important ones, for which reason they alone were embodied in the original Constitution and not left to later amendment. The fragmentation of power produced by the structure of our Government is central to liberty, and when we destroy it, we place liberty at peril. Today’s decision should have vindicated, should have taught, this truth; instead, our judgment today has disregarded it.

For the reasons here stated, we would find the Act invalid in its entirety. We respectfully dissent.

Radio Silence

I will not be able to bear online witness the unveiling of the opinion on Obamacare tomorrow.  Radio silence will be engaged at 10 AM, EDT.  Why do I have to find out on delay?  Because my supervisor (who's actually a great guy) decided to call a unit meeting at 10 AM.

These were my selfish reactions:

and

Anyway, clicky for my previous posts surrounding Day 1(mandate a tax or a penalty), Day 2(mandate part of the Commerce Clause) and Day 3 (severability of the mandate).  Final thoughts and prediction can be found nyaw.

Supreme Court website is nyaw.  Opinions are listed on the right hand side of the home page.

Any bets are to be placed in the comments and based on a 100 internet dollar wager.  Listed next to the choice is the payout.  Please choose the line, and internet dollar amount waged.  Max bet is 10k internet dollars.  Certain people have credit with Double Standard Industries and will be permitted to wager more than the max bet.  You are most likely not one of them. 

The current lines:

1.  Tax 100

2.  Penalty 100

3.  Neither 900

4.  Mandate upheld (is constitutional) pays 275 internet dollars.

5.  Mandate struck down (is unconstitutional) pays 65 internet dollars.

6.  Neither 1500

7.  Mandate is severable 50

8.  Mandate is unseverable 250

Prop Bets:

9.  Justice reading the majority opinion is interrupted while reading said opinion 100

10.  Justice (any) swears 1000

11.  Justice Kagan sent to corner to play with something shiny 500

12.  RAYCISM 1.00

13.  Breyer picks own nose 265

14.  Mandate struck down 6-3 600

15.  Mandate upheld 6-3 600

16.  Mandate struck down, Napoleon regime does some backhanded, nasty, thoroughly dickish action that disrespects the Supreme Court and the law 50

17.  Mandate struck down, on-air reporter cries.

O/U

Democrats voting Holder in contempt 28.5, pays EVEN.

Good luck, and I'll see you all tomorrow. 

The Fallout

So section 2(b) of Arizona SB 1070 stands.  See yesterday's post for the recap.

If I were Napoleon, the smart move would be at this point offering an olive branch to Governor Brewer.  Suggest working together.  Here are the reasons why:

1. Napoleon can claim he is enforcing federal law.
2. Napoleon can claim he is taking Arizona's cry for help seriously.
3. Bipartisanship.  Fo' reals.
4. He can show respect for the Supreme Court.
5. Both sides can walk away claiming victory.

But no, the regime is so obsessed with the perception of being sympathetic to Latinos (and not actually helping them).  Or fundraising.  Or screaming racism.  Or blaming Bush.  Or golfing.  Or waging its war on women.  Or vote pandering.  Ad infinitum.

And this is the route they have decided to take.  In effect, the regime just chose illegal immigrants over it's own citizens and laws.

What a spiteful, vindictive, malicious, and downright nasty move.  This literally made me sick.

I tweeted one time "If Obama loses in November, will he just sign an executive order saying he didn't?  Sadly, I am half joking."  I'm about 30% joking now.

ed-friend of Double Standard Industries KT has a blog entitled "The Scratching Post".  Good times, and as your attorney I advise every one to head over for a visit.  Link is on the blogroll.

I'm Back, Arizona SB 1070

One heck of a week off.  Back surgery was successful, and have taken my first steps in two years that haven't been associated with pain.  The downside is that my spine still hasn't straightened, but I think time will cure that.

I also don't toss and turn at night now due to the pain.  This is awesome, as I am finally getting some sleep.  Now back to the fray.

Arizona S.B. 1070

In a broad sense, the situation was that illegal immigration in Arizona was out of control.  The feds weren't doing their jobs as immigration enforcers, and crime was rampant along the border.  Governor Brewer stepped in and said that they were going to do the job the feds weren't.  Napoleon was like "NUH-UH RAYCISM".  The Arizona legislature said differently, and passed SB 1070 (linky-linky), signed by Gov. Brewer 23 April 2010.

Four sections were struck down by the ninth circuit, otherwise known as the "Department of Judicial Activism".  The sections were 2(b), 3, 5(c), and 6.

Arizona v USA

Split decision.  Noted that Kagan recused.  Let's get to the highlights.

Section 3: Arizona tried to regulate alien registration.  Justice Kennedy: "Section 3 intrudes on the field of alien registration, a field in which Congress has left no room for States to regulate...The federal registration framework remains comprehensive. Because Congress has occupied the field, even complementary state regulation is impermissible. Pp. 8–11."

Analysis: State tried to take away some federal power.  That's a no-no.  Justice Kennedy ruled on prior precedent, wagged his finger at Arizona.  I have no problem with this.

Section 5(c): Arizona legislated that it's a misdemeanor for an illegal alien to seek employment in this country.  Justice Kennedy: "Section 5(C)’s criminal penalty stands as an obstacle to the federal regulatory system...The correct instruction to draw from the text, structure, and history of IRCA is that Congress decided it would be inappropriate to impose criminal penalties on unauthorized employees. It follows that a state law to the contrary is an obstacle to the regulatory system Congress chose. Pp. 12–15."

Analysis: Federal trumps state.  Congress said no penalty, and no penalty shall be assessed.  Personally, I don't agree with this one.  If an illegal breaks the law (like trying to get a job in this country), shouldn't there be penalties?  In other words, an illegal gets deported, comes back illegally, applies for a job.  Gets discovered, cycle repeats.  Wouldn't a penalty in theory discourage them from coming back?  Don't ask what penalty I would come up with, because I have no idea.  For use of example, branding.  Moving on. (ed-in rereading this, i might have missed the simple rule: federal trumps state; i think my point is how can you break a law and not be penalized?).

Section 6: Allows state/local officials in Arizona to arrest suspected illegals without a warrant at any time (this is important), i.e. without federal supervision.  Justice Kennedy: "By authorizing state and local officers to make warrantless arrests of certain aliens suspected of being removable...Section 6 attempts to provide state officers with even greater arrest authority, which they could exercise with no instruction from the Federal Government. This is not the system Congress created. Federal law specifies limited circumstances in which state officers may perform an immigration officer’s functions. This includes instances where the Attorney General has granted that authority in a formal agreement with a state or local government. See, e.g., §1357(g)(1). Although federal law permits state officers to "cooperate with the Attorney General in the identification, apprehension, detention, or removal of aliens not lawfully present in the United States," §1357(g)(10)(B), this does not encompass the unilateral decision to detain authorized by §6. Pp. 15–19.

Analysis: In effect, the state of Arizona again tried to take federal power away and give state/local PD entirely too much power.  Federal trumps state.  I agree with the opinion, basically because we all know Barney Fife would put an entire town on lockdown at gunpoint based on a hunch.  No thanks.

Section 2(b): Officers who stop, detain, or arrest may in some circumstances verify immigration status.  Justice Kennedy: It was improper to enjoin §2(B) before the state courts had an opportunity to construe it and without some showing that §2(B)’s enforcement in fact conflicts with federal immigration law and its objectives. Pp. 19–24.(a) The state provision has three limitations: A detainee is presumed not to be an illegal alien if he or she provides a valid Arizonadriver’s license or similar identification; officers may not consider race, color, or national origin "except to the extent permitted by the and §2(B) must be "implemented in a manner consistent with federal law regulating immigration, protecting the civil rights of all persons and respecting the privileges and immunities of United States citizens."

Analysis: Check with ICE if they don't have a valid ID.  Don't profile (wink-wink).  This section merely affirms Federal law, and is allowed to stand.  And I concur.

Notes:

• Three of four sections struck down.  All four ruled upon the same way in the majority opinion.
• Justice Sotomayer concurred to uphold section 2(b) (as did the other 7; Kagan recused).  Guess she's now a wise white person, because that was the most racist-y racist law to every racist a racism.  Or something.
• Justice Kennedy relied heavily on past precedent to draw a clear line in state vs. federal powers.  His logic was clear and sound in this opinion.  The ACA decision will be handed down this week.  As we saw in the oral arguments of said case, Justice Kennedy could not provide, and was not given, any prior precedent regarding the use of federal power in the manner the Federal Government stated it could.  In fact, toward the end of arguments he got rather flustered that the AG/SG clownshow couldn't answer any of his questions.  While he did favor the federal side of the equation in this opinion, it's his technique which should be noted.  This bodes well for Thursday.
• Just a thought, but will the ID check of section 2(b) be tied into whole "disenfranchising minorities" blather? 

Gov. Brewer is correct when she states that today's decision was "A win for the rule of law".  It was also a pimp slap to Napoleon who for some reason doesn't want people to enforce federal law.

Can't wait to hear the "RACISM" snarl this afternoon.

Tweet of the Year

Belongs to one David Burge (@iowahawkblog), and his succinct response to Napoleon's recent blatherings:

"This speech is doing just fine"

Seriously though, that speech was an embarrassment.

ALL HAIL IOWAHAWK

I'll be underground for the next week or so.  Wedding, back surgery, and drugs.  Going to try to work on the ACA project given I'll be spending Monday thru Thursday in bed.  In the meantime, everyone have a good weekend and I'll see you all whenever.  Now the enjoy the best U2 ever:

Here's Your Rope

"The private sector is doing fine."
The thing is, I honestly believe that Napoleon had no doubt in his mind when he said it. 

When you are shuttled between campaign events where donors are willing to shell out tens of thousands of dollars per plate, why wouldn't that be your observation? 

OR

Economies always look fine at 30,000 feet.

Please feel free to add your snark in the comments.

For the Weekend

Today blogs were supposed to go silent in solidarity for those who are being lawfared by #Brettkimberlin.  I understand the point, I just don't agree that going silent helps raise awareness.

Still, I stand with Ali, Aaron, LibertyChick, Stacy McCain, Ace of Spades, Patterico et al.  Big props to Volokh for joining in the legal defense. 

Please, if you have a chance help these folks out with any donation you can spare.  It's a worthy cause.

For all those joining in the fight, especially those listed above, this next one's for you.

Drink once for Don Corenelius' necktie.  A second time for the 'fro.

Enjoy your weekends.  Go Phills!

update: Somtime last night we got our 1000th pageview!  Thanks to all who helped out - The Management

...and We're Back!

San Diego was incredible.  More on that below.

First and foremost, today marks the anniversary of D-Day.  As a rather unique perspective, check out Ike: Countdown to D-Day.  Amazing to think one man shouldered all that burden.

Also important to note that today Dick Winters (of Band of Brothers fame) was enshrined in a memorial over in Normandy.  That PA boy done good.

Lessee what else happened...oh yeah there was some needless recall election last night in Wisconsin.  Here's a quick outline of what transpired:

The Incumbent



Scott "Little Mac" Walker

The Challenger

"Union Stuffing" Tom Barrett

ROUND 1

So now it's all over.  Tom Barrett, still reeling from last night's loss couldn't be reached for comment.  However, Double Standard Industries(TM) is happy to announce we obtained a picture of Tom this morning.  He's still in the same position.  Here it is:



At least someone had the decency to cover him up.  His shoes are gone, tho'.

The last (and only serious) comment I have on this whole situation is this: the left is learning nothing from their losses.  As previously mentioned in this post, my smile just keeps broadening. 

Moving on...

Twitter Update

I got my twitter account back on Sunday.  I just kept pestering them for 5 days or so.  No official explanation was given for my suspension other than "you must have violated some rule".  Whatever, I'm back (@psudrozz).

San Diego

Unbeknownst to my wife and I, there is a time when the sun isn't out in San Diego.  It's called "June Gloom", or "May Grey" depending on when it happens.  Let's just say I ran face-first into this weather pattern.

San Diego, and its surrounding are very beautiful indeed.  Reminds me of southern Spain.  However, when the sun comes out...the beauty and magnificence of the city changes by an order of magnitude.  The city positively radiates, and it's ocean views (especially from Point Loma) are unsurpassed.

As I tweeted earlier, I was on the front porch of the Hotel del Coronado having drinks with friends.  Great time, spectacular beach.  The sun came out for thirty seconds; it was then I understood why people, despite the governmental hardships, live out there.

Other positives:

• The beer and Mexican cuisine were sublime.
• Most homes are unique, and are unattached. 
• San Juan Capistrano mission was a great trip.  Personally, I liked touring the missions more than I liked the cathedrals in Spain.
• It just seemed that everyone was outside.
• Very dog friendly.
• The Nobu at Gaslamp was expensive, but worth it.
• Could easily travel to any part of the city.

Negatives

• Nobody has a yard.
• In-n-Out Burger is overrated.

Weirdness

• People hit the beaches when it's 65 degrees and overcast.  Then go into the water which is frightfully cold without a wetsuit.  Must have anti-freeze in their veins, or something.

Still, I'll be going back.