SCOTUS refused to hear a case (Kobach v. U.S. Election Assistance Commission) in which Kansas and Arizona were endeavoring to require proof of citizenship in federal elections.
A standard form known as the federal form is required in federal elections, although states can use their own forms for state elections. States are allowed to require proof of citizenship for state elections, but the federal form does not require it. When Arizona and Kansas requested that the U.S. Election Assistance Commission change the federal from to require citizen proof, the agency told them what they could do with that request (nothing), saying that swearing under penalty of perjury was enough. In other words, it’s the honor system, and of course no one is going to have the ability to separate out the liars and pursue them; that’s why requiring proof would act as a screen.
A refusal to hear a case leaves lower court decisions intact, but it doesn’t rule definitively on the legal issue itself.
Obviously, this is another victory for the left. As William Jacobson at Legal Insurrection points out, this is not a small issue:
In spite of substantial public controversy, very little reliable data exists concerning the frequency with which non-citizen immigrants participate in United States elections. Although such participation is a violation of election laws in most parts of the United States, enforcement depends principally on disclosure of citizenship status at the time of voter registration. This study examines participation rates by non-citizens using a nationally representative sample that includes non-citizen immigrants. We find that some non-citizens participate in U.S. elections, and that this participation has been large enough to change meaningful election outcomes including Electoral College votes, and Congressional elections. Non-citizen votes likely gave Senate Democrats the pivotal 60th vote needed to overcome filibusters in order to pass health care reform and other Obama administration priorities in the 111th Congress.
What’s going on? The decision was 7-2, which means that at least one of the three very reliably conservative justices (Scalia, Thomas, Alito) voted against hearing this case (against granting certiorari). I can’t discover who it was, but to me that aspect of the vote means that there might be something I’m missing about this. On what basis did that justice think that SCOTUS shouldn’t hear this case? I’d like to know, but I don’t think that information is out there anywhere. If you can find a link, please post it in the comments section.
Yesterday there were three terrorist attacks, the worst of which in terms of loss of life (38 people) occurred on a beach in Sousse, Tunisia that is popular with European tourists. You can read many chilling accounts in the British papers (including the one I linked), because the majority of the victims were British people relaxing on holiday.
The goal: to frighten the West and to harm the Tunisian tourist industry. Mission accomplished. The site was almost certainly chosen for its peaceful-seeming nature (the message being “you are not not safe anywhere”), and also for the extreme unlikelihood that anyone there would be armed, except the gunman, who had arrived in a small inflatable boat and acted like a fellow-tourist until he opened fire with an automatic weapon he’d hidden in or behind a beach umbrella.
The cinematic nature of the scene is evident, but would that it were only a film:
Eyewitnesses say the gunman was was seen laughing and joking among the midday bathers and sunseekers, looking like any other tourist.
But it was claimed he was carefully selecting the victims he would murder with a Kalashnikov hidden in his parasol…
In another chilling account, Ibrahim el-Ghoul revealed how the killer had been smiling.
The trainee mechanic, who works part-time at hotel nearby, said the gunman told him ‘I don’t want to kill you; I want to hit tourists,’ according to The Independent…
A hotel worker said a shoeless Rezgui, who arrived on the beach by inflatable boat, had tried to blend in with the crowd. He added: ‘He opened fire with a Kalashnikov. He was a young guy dressed in shorts – like he was a tourist himself.’
Rafik Chelli, Tunisia’s secretary of state for national security, said the gunman – named locally as Rezgui – entered the Marhaba complex through the pool area.
‘He entered by the beach, dressed like someone who was going to swim, and he had a beach umbrella with his gun in it. Then when he came to the beach he used his weapon,’ Mr Chelli said. Rezgui was shot dead by the security forces.
Because of the Ramadan religious period, there were few Tunisians on the beach and few children because most schools have yet to break up.
Houcine Jenayah, a businessman, said the gunman arrived at speed on an inflatable Zodiac boat.
‘He opened fire and had grenades with him,’ said Mr Jenayah. ‘He hid his Kalashnikov behind a parasol that he had in his hand.’
I’m old enough to remember a few things, and this incident reminds me very very much of the 1997 Luxor massacre in Egypt. In certain ways those were “better” days, because there were fewer terrorists (or seemed to have been, anyway), the internet wasn’t really yet a factor in helping them organize, and some of the strongmen leaders (such as in Egypt) seemed better able to crack down on them.
But the Luxor attack was even more barbaric and horrifying than yesterday’s on the Tunisian beach, if possible, and it took more victims as well. The intent was to depress tourism and the victims were almost all Europeans, as in Tunisia. Unlike in Tunisia, there were two armed guards there, but the guards were outnumbered and they were shot first:
In the mid-morning attack, six gunmen massacred 58 foreign nationals and four Egyptians. The six assailants were armed with automatic firearms and knives, and disguised as members of the security forces. They descended on the Temple of Hatshepsut at around 08:45. They killed two armed guards at the site. With the tourists trapped inside the temple, the killing went on systematically for 45 minutes, during which many bodies, especially of women, were mutilated with machetes. They used both guns and butcher knives. A note praising Islam was found inside a disemboweled body. The dead included a five-year-old British child and four Japanese couples on honeymoon.
The attackers then hijacked a bus, but ran into a checkpoint of armed Egyptian tourist police and military forces. One of the terrorists was wounded in the shootout and the rest fled into the hills where their bodies were found in a cave, apparently having committed suicide together.
Four Egyptians were killed, including three police officers and a tour guide. Of the 58 foreign tourists killed, 36 were Swiss, ten were Japanese, six were from the United Kingdom, four from Germany, and two were from Colombia.
Back then ISIS didn’t exist—but there’s a strong resemblance, isn’t there? And if you’re old enough to remember this one but don’t, do you wonder why? Did it receive less coverage? Was our sensibility not attuned to it because it was over there, and we thought it wouldn’t happen here?
Tourism in Egypt was depressed for many years after that, but it also put the terrorists’ support within Egypt into decline. Realizing that the horrific massacre had not been a good PR move, the group tried to backtrack and, of course, blamed the Jews (among others):
Organizers and supporters of the attack quickly realised that the strike had been a massive miscalculation and reacted with denials of involvement. The day after the attack, al-Gama’a al-Islamiyya leader Refa’i Ahmed Taha claimed the attackers intended only to take the tourists hostage, despite the immediate and systematic nature of the slaughter. Others denied Islamist involvement completely. Sheikh Omar Abdel-Rahman blamed Israelis for the killings, and Ayman Zawahiri maintained the attack was the work of the Egyptian police.
This contemperaneous article in the NY Times mentions that the terrorists said their original goal was to take hostages in order to negotiate for the release of Abdel-Rahman, imprisoned in New York for the 1993 WTC bombing. And this article mentioned beheadings. So the connection is quite clear; not much has changed except the scope of the problem, and perhaps (perhaps) the extent of our awareness of it.
I actually didn’t think they’d ever find the pair, but I guess the search was massive and they got some tips. There is little question that these men were/are extremely dangerous psychopaths. Here is the way it went down at the end for Matt:
According to officials, dogs picked up a scent around 2 a.m. Sen. Chuck Schumer, who said he was briefed on the incident, said that law enforcement were contacted by a woman who got a knock at her door, he told ABC station WABC-TV.
She didn’t answer the door, but instead called police, Schumer said. That’s when dogs picked up the scent and began to close in from the north and west.
Some time before 2 p.m. Friday, a person pulling a camper near Duane, N.Y., heard a sound and later discovered after pulling into a campsite that there was a bullet hole in it, state police said.
After that, a tactical team was deployed to a nearby cabin.
Inside, they noticed the smell of gun powder. While searching the grounds, investigators noticed movement and heard coughing, state police said.
Customs and Border Protection agents “verbally challenged him [Matt] and told him to put up his hands,” but he “didn’t comply,” State Police Superintendent Joseph D’Amico said at a Friday evening news conference.
He was shot and a 20 gauge shotgun was recovered from him.
Reading that story, it’s a reflection on news events of the last year or so that one of my thoughts was good thing he wasn’t black, or they’d be arresting the border patrol guy who shot him. I’m not being facetious, either.
Posted by neo-neocon at 2:07 pm. Filed under: Law, Violence
One of the most distinctive things about yesterday’s same-sex marriage ruling was the rapidity with which such a huge change came about. It’s something Justice Scalia remarked upon in his scathing dissent:
The five Justices who compose today’s majority are entirely comfortable concluding that every State violated the Constitution for all of the 135 years between the Fourteenth Amendment’s ratification and Massachusetts’ permitting of same-sex marriages in 2003. They have discovered in the Fourteenth Amendment a “fundamental right” overlooked by every person alive at the time of ratification, and almost everyone else in the time since. They see what lesser legal minds— minds like Thomas Cooley, John Marshall Harlan, Oliver Wendell Holmes, Jr., Learned Hand, Louis Brandeis, William Howard Taft, Benjamin Cardozo, Hugo Black, Felix Frankfurter, Robert Jackson, and Henry Friendly— could not. They are certain that the People ratified the Fourteenth Amendment to bestow on them the power to remove questions from the democratic process when that is called for by their “reasoned judgment.” These Justices know that limiting marriage to one man and one woman is contrary to reason; they know that an institution as old as government itself, and accepted by every nation in history until 15 years ago, cannot possibly be supported by anything other than ignorance or bigotry. And they are willing to say that any citizen who does not agree with that, who adheres to what was, until 15 years ago, the unanimous judgment of all generations and all societies, stands against the Constitution.
Comparisons to slavery don’t work, not the least because slavery was never as widespread as the prohibition on same-sex marriages, and because even as far back as the Founding Fathers—who allowed slavery to be part of the republic—they did so with reluctance and for practical reasons, and most of them considered it wrong and fervently hoped it would die out over time of its own accord.
One can observe the enormous rapidity of the change of attitude towards same-sex marriage by contemplating that Congress passed DOMA, the Defense of Marriage Act, in 1996, and President Clinton signed it. Not only did it pass, but the margin was a whole lot greater than the ratio of 5-4 by which SCOTUS ruled on the issue yesterday:
Passed the House on July 12, 1996 (Yeas: 342; Nays: 67)
Passed the Senate on September 10, 1996 (Yeas: 85; Nays: 14)
You can also amuse yourself, if you care to, by watching videos of prominent liberals intoning their support for traditional marriage only a few very short years ago. One of them, of course, was President Obama. Another was Hillary Clinton, whose failure to “evolve” lasted until 2013.
One thing that strikes me is not only the rapidity of the change, but the lack of acknowledgement of the flip-flop on the part of the liberal politicians. I would ask whether they were lying then or whether they are lying now, or whether they really suddenly Saw the Light, but I’m pretty sure of the answer, and it’s that they were lying then in order to get votes. Now they don’t have to lie anymore, at least about that (they lie about plenty else, of course).
I don’t see that a lot of people care, either. What I see on the liberal side is applause for their newly evolved state and/or approval of the cleverness with which they lied in order to get votes and gain power.
I read somewhere (don’t remember where, or I’d cite it) that now opponents of same-sex marriage can all relax and go on to other things because the fight is over—the left has gotten what it wants. Would that it were so! As I’ve written several times before, the left does not relax, and it never has gotten what it wants, which is total control and total capitulation from the other side. The persecution of the religious opponents to gay marriage is continuing apace and will pick up speed.
But more importantly, it’s not about same-sex marriage. As I’ve written several times, I don’t have a problem with a states’ citizens voting to legalize same-sex marriage if they so desire. I do have a problem with finding a right in the Constitution that doesn’t exist there, because that gives activists the green light for almost anything they desire, as long as they can get five liberal justices in there to bypass the Constitution and the will of the people.
[NOTE: For those of you who don’t know who FredHJr was, please see this and this, as well as these. The following is a slightly-edited post that appeared previously on this blog.]
Unbelievable that it’s been six years since commenter FredHJr died suddenly and tragically.
It was extremely tragic for his family. But it was tragic for this blog, too, because he was an invaluable and irreplaceable member of our community, a “changer” who knew a lot about the Left and a keen observer of politics, history, religion, culture—of life itself. I still think about him often, wondering what he’d have to say about everything that’s happened in these last six years.
One thing I don’t think he’d say, though, is that he was surprised by any of it. In light of this, I offer the following excerpts from some of Fred’s comments here. Note the dates, which show how early he caught on. Fred had a succinct and distinctive way of putting things, didn’t he?
This comment is from October 18, 2008, just a few weeks before Obama was elected president for the first time:
It’s the Marxist/Leninist ethics of expediency. No regrets. Whatever it takes to discredit anything the other side does and excuse the sins of your own side.
Part of Neo’s original point was that this reveals a lot about who is about to take power and how they will wield it against the rest of us. They get away with it and many will not at all be troubled by it because they are shaped by the post-modernism, cultural Marxism that they imbibed during their formative and educational experience. If we as a people cannot name this accurately and expunge its corrosive influence over our lives, then down into the wages of perdition and disaster we go.
I will tell you from personal experience of the depths of deceitfulness of the Marxists. From about 1977 until 1987 I was an academic Marxist and only rubbed elbows with the activist kind on an occasional demonstration. I was into books and theory, debating within my own mind the various critiques that the respective positions would level at each other. The few times I was gathered on those very social of occasions that demonstrations are, when I would try to strike up a conversation with others, the activist leaders would INSTRUCT ME to never identify myself as a Marxist. I was never to use the word “socialism” and never to have conversations about socialist theory. I was instructed to refer to myself and the others as “Progressives.” I was admonished a few times when I more or less did whatever the hell I wanted and said whatever I wanted to say.
I had violated a speech code. And did so flagrantly. I was a headstrong, stubborn young man who also was not fond of being deceptive. I am still that way, although I am now 53 and more inclined to keep my mouth shut when in the company of people who would take a dim view of my being a traitor to the Left…
I wish I could scream into these kids’ brains that they are being lured on by enormously evil liars.
I am not afraid of the Obamabots for calling Obama a socialist. I know the provenance of his ideas thoroughly and I know exactly who the formative influences were in his settled thinking. They were Socialists and they espouse socialism.
About a week later, on October 28, 2008. The election is getting closer:
Barack Obama is not a natural leader. Community organizers are facilitators and manipulators. Manipulators may try to be leaders, but they lack a core of courage and integrity and enables them to make difficult choices and sacrifices of a high moral nature.
Obama is part of a nexus of interests. What the American dopes who will put him in office are getting is a NETWORK of alliances and interests, running the gamut from Finance (Soros) to academia to media to law. Thus far, in order to appeal to the Middle Muddle he has been packaged as a moderate or centrist. But once in office the venomous swarm of this network will burst out of the nest and devour the host. You wait and see. And I’m not eager for the moment to say “I told you so.” I really would it be the case that it never happens at all. Why? Because the lives of tens of millions of human beings hang in the balance of this and mushroom clouds on the horizon. I put the value of human life far above my own frustrated rantings.
Those who think that the media does not have any ideological agenda invested in Obama’s candidacy, save their own pecuniary interests, is not familiar with the academic culture in the universities out of which the journalists come to the real world.
They won’t savage Obama’s failures or the crises that will attend. They will try to spin it so as to minimize the damage.
The real Obama will stand up starting in January. I find that to be rather depressing, given what I know him to be and what Pelosi wants.
I did the due diligence that my vote requires. It isn’t my fault that over half the nation was stuck on stupid. I am especially disappointed in two demographics: the college age crowd and single, white females. They want socialism, and get it they shall.
This one is from a couple of weeks after the 2008 election:
The Big Epistemological Flaw in Socialist Thought:
Look up the technical term from philosophy called “telos.” It means the logical endpoint of the cosmology inherent in any body of thought. The telos of socialism is Utopia. And that’s the flaw. Originally, when I was a Marxist and Liberation Theology adherent, it was the Pelagian vision which attracted me. But Michael Novak saw it right away back in the Seventies and published many articles wherein he critiqued socialism as incompatible with human nature. His critiques were the ones that I always kept in the back of my mind, because I was always striving to see if there was a way in which human nature could be malleable enough to change and be compatible with collectivist goals. It could not be done, and I tried investigating every conceivable angle. The coup de grace came AFTER I broke with the Left in 1987, which break happened because I came to realize that the socialist experiments before my eyes did not create the New Moral Man. What I later did was some intensive reading into human psychology, genetics, and neuroscience and discovered that evil will always be there. Selfishness will always be there. There will always be sociopaths, messing up the tidy plans to make Heaven come down to Earth. Evil has an organic basis. There is a titanic cosmic battle between the Creator and The Evil One. This thing is way bigger than we are and what our minds can comprehend.
Right around the time of Obama’s first inauguration (Fred sometimes referred to Obama as “Obonga” in a reference to his pot-smoking youth):
Sometimes I think that with Obonga’s ascendancy we are reaping divine retribution, being given over to our worst impulses, for the eight years we savaged this good and decent man [Bush]. We were lucky to have him at that moment in history.
I must admit that I am rather pessimistic these days. In my Leftist days, years ago, I was anthropologically an optimist. When I left the Left I was realist. And now I am pessimistic about humanity and about the long term endurance of our civilization when I look at what most of humanity has done to [Bush]. It shows most people have very bad judgment and even worse morals.
The only kind of enemy that Obama is capable of waging war against are us capitalist pig dog conservatives. Otherwise, he’s a pussy. And with his internal enemies, even there he uses proxies to do the dirty work.
This is a guy who does not like to get his hands dirty. He is not a leader in any way that I can discern. Which is why I think he will be even more unpopular with the military than he was during the election campaign.
If you were a foreign enemy you would think that manna from heaven just dropped into your lap, complete with honey coating.
Posted the next day, this one refers to Obama’s Cairo speech:
There are overtones of appeasement in Obonga’s speech. You can almost picture him as the dog that gets on its back and shows its belly in submission.
I’ll stop there. These are chosen somewhat randomly, as you can see, because they cluster in time. Almost everything I looked at that Fred had written was on target, but I thought these in particular showed how early and how well he understood what was happening.
RIP Fred, and may your family be comforted in their grief. We miss you.
[NOTE: There are other commenters here who may have died, and I would like to mention them too, but for no one else did I actually get official word of the person's death. One commenter who comes to mind is "strcpy," who announced that he was very ill and then disappeared shortly thereafter, about four years ago. I wrote him an email but never heard back, and I fear he's gone. But I don't know for sure. Another who disappeared was Occam's Beard.
There may be others, as well. I wouldn't necessarily find out; sometimes people just stop commenting, but it stands to reason some of them will have died. So I'll take this opportunity to say RIP for all of them, whoever they may be.]
…the FHA [Fair Housing Act] reaches otherwise lawful activities which, while free of discriminatory intent, are nonetheless found to have a “disparate impact” on minority groups. In so holding, the Court agreed with decades of unanimous federal appeals-court precedents that arrived at the same conclusion.
Three things stand out here. The first is that Justice Kennedy, an unelected official, has become one of the most powerful people in the US. The second is that disparate impact, of extremely dubious scientific value, has now become enshrined. The third is that the Court has no trouble ruling that statutes don’t mean what they say, both in the Obamacare case and now in the case of the Fair Housing Act, and that with Obamacare we can look at generalized legislative intent and go with that instead of the wording of the law, and that in the disparate impact case we must ignore the intent of the Fair Housing Act in order to get the progressive result we want.
There is a tiny sliver of a caveat in the case, but I doubt it will matter, because it’s hard not to notice that these things tend to get expanded and expanded and expanded rather than contracted:
At the same time, the high court cabined disparate impact liability to those policies that pose “artificial, arbitrary, and unnecessary barriers.” That important qualifier may ultimately determine the outcome of this case on remand. And the Court further reminded the government and lower federal courts that important constitutional considerations limit the remedies available for disparate impact liability under the FHA.
The Fair Housing Act had an intent to ban intentional discrimination:
…[T]he [Texas] case hinged on the meaning of Title VIII of the Civil Rights Act of 1968, commonly known as the Fair Housing Act. The FHA makes it unlawful to “refuse to sell or rent after the making of a bona fide offer, or to refuse to negotiate for the sale or rental of, or otherwise make unavailable or deny, a dwelling to any person because of race, color, religion, sex, familial status, or national origin.” 42 U.S.C. § 3604(a). The FHA further prohibits discrimination “against any person in the terms, conditions, or privileges of sale or rental of a dwelling, or in the provision of services or facilities in connection therewith,” on account of those same protected characteristics. Id. § 3604(b). While the FHA clearly prohibits intentional discrimination, whether or not the statute encompasses disparate-impact liability had never been squarely considered by the Court…
Undoubtedly the weakest part of the majority’s rationale is its reliance on Congress’s 1988 amendments to the FHA as a basis to conclude that Congress somehow “ratified” disparate impact liability. Because Congress knew at the time that nine courts of appeals had held the FHA encompasses disparate-impact liability, the Court reasons, three exemptions from liability included in the 1988 amendments would have been “superfluous” had Congress assumed that disparate impact liability was unavailable. But Justice Alito gets the better part of the argument in his dissent, pointing out that the official view of the United States in 1988, manifest by its formal position in the Supreme Court and many lower courts, was that the FHA prohibits only intentional discrimination. As Justice Alito concludes: “It is implausible that the 1988 Congress was aware of certain lower court decisions [allowing for disparate impact] but oblivious to the United States’ considered and public view that those decisions were wrong.” And the Court has consistently rejected identical arguments about “implicit ratification” in other cases. It is a testament to the force of Justice Alito’s argument on this point that the majority offers nothing in response but silence.
Silence is adequate, though, at least in practical terms. When you have the numbers and therefore the power, you don’t need the arguments.
[NOTE: I'm writing something quite long on the subject, but I may end up sending it out to another publication, and I'm still in the middle of writing it. Meanwhile, I thought I'd provide this shorter thread for you to discuss the subject of today's same-sex marriage ruling.]
In a move that probably came as no surprise to anyone, the Supreme Court made same sex marriage the law of the land. Legal Insurrection is always a good place to go to read about legal matters, so I’d recommend this post there as well as this one.
To me, this case is less about gay marriage and more about extending the Constitution in a way never intended by the Framers and detrimental to liberty because it extends further the power of the federal government. At PJ Media, Michael van der Galien writes that federalism is now dead in America:
The “right” of gays to marry has never existed. It isn’t protected by the U.S. Constitution and the Bill of Rights. In fact, because of the 10th Amendment this issue (marriage) is completely left to the individual states. In other words, marriage is none of the federal government’s business; it’s up to individual states to decide whether to legalize it or not.
Combined with yesterday’s ruling on ObamaCare…we can only conclude that federalism is no more. America is now a centralized country, comparable to individual European states.
I believe that is the real significance of today’s ruling. Its predecessor (not in content but in process) was Roe v. Wade, in which abortion, another trend that was already gaining ground in the states and probably would have more slowly become legal in most if not all states, was forced on the American people as a whole by finding a right in the federal Constitution that previously had never been thought to exist. Both cases (today’s and Roe) also share the fact that they are a particular affront to many religious Americans and have the potential to violate their right to freedom of religion.
A dissent has no power except the power of its words and its logic—that is, it has no legal power. So Scalia’s dissent in King v. Burwell (joined by Alito and Thomas) is satisfying only in the rhetorical and intellectual sense. But it is so good that I’m highlighting it anyway.
Here are some excerpts:
[T]he plain, obvious, and rational meaning of a statute is always to be preferred to any curious, narrow, hidden sense that nothing but the exigency of a hard case and the ingenuity and study of an acute and powerful intellect would discover.” Lynch v. Alworth-Stephens Co., 267 U. S. 364, 370 (1925) (internal quotation marks omitted). Under all the usual rules of interpretation, in short, the Government should lose this case. But normal rules of interpretation seem always to yield to the overriding principle of the present Court: The Affordable Care Act must be saved…
Perhaps the Patient Protection and Affordable Care Act will attain the enduring status of the Social Security Act or the Taft-Hartley Act; perhaps not. But this Court’s two decisions on the Act will surely be remembered through the years. The somersaults of statutory interpretation they have performed (“penalty” means tax, “further [Medicaid] payments to the State” means only incremental Medicaid payments to the State, “established by the State” means not established by the State) will be cited by litigants endlessly, to the confusion of honest jurisprudence. And the cases will publish forever the discouraging truth that the Supreme Court of the United States favors some laws over others, and is prepared to do whatever it takes to uphold and assist its favorites.
One of the strange things about the conservative reaction to this decision (and I count myself in that group) is that the SCOTUS ruling in King vs. Burwell doesn’t have all that much immediate practical effect on Obamacare. The Republican majority Congress was not going to let the state subsidies lapse, certainly not right away, even if the decision had gone the other way. Their proposed fixes involved a temporary preservation of the state subsidies, with various plans to change things to a more choice- and market-based system in the future if a Republican president were to be elected, plans that might or might not have come to fruition depending on how conservative the president would have been and how conservative the new Congress might be. So in practical terms nothing much has changed: the subsidies stand, and a new (and more conservative) Congress and president could still change things if they so desire.
The greater damage done by this decision is to the rule of law and our faith in the Supreme Court’s ability to abide by basic legal rules and exhibit sound legal reasoning. That faith had already been sorely shaken; now the thread by which it had been hanging has been cut. You can see this in Scalia’s complaint that “words no longer have meaning” and “the [Obamacare] cases will publish forever the discouraging truth that the Supreme Court of the United States favors some laws over others, and is prepared to do whatever it takes to uphold and assist its favorites.”
To put it in legal terms, this case sets a terrible precedent.
Scalia wrote that we could rename Obamacare “SCOTUScare” now. I will add that we should rename the current Supreme Court, as well. It’s not “the Roberts Court” anymore, it’s “the Humpty Dumpty Court” instead:
“When I use a word,’ Humpty Dumpty said in rather a scornful tone, ‘it means just what I choose it to mean — neither more nor less.’
’The question is,’ said Alice, ‘whether you can make words mean so many different things.’
’The question is,’ said Humpty Dumpty, ‘which is to be master — that’s all.”
We were expecting the ruling in King v. Burwell any day now, and here it is. The vote was 6-3, with swing justice Kennedy and new swing justice Roberts joining in interpreting the statute in a manner that preserves the status quo. So although Roberts continues his pattern from Sebelius, it was not determinative because even without him the result would have been the same, at 5-4.
When I emphasize preserving the status quo, I do so because I am firmly convinced that was the motivation (and I mean the sole motivation) for this ruling. Professor William Jacobson at Legal Insurrection agrees:
As he did in upholding an Obamacare constitutional challenge in 2012, Roberts found a way to read the law so as to save the law…
The Court found Obamacare so “inartfully drafted” that the Court essentially wrote the law for Congress through “statutory interpretation.”…
Roberts and the majority did not want to be the ones to take down Obamacare, and that drove everything:
“Congress passed the Affordable Care Act to improve health insurance markets, not to destroy them. If at all possible, we must interpret the Act in a way that is consistent with the former, and avoids the latter. Section 36B can fairly be read consistent with what we see as Congress’s plan, and that is the reading we adopt.” [at 21]
Scalia’s dissent, joined by Thomas and Alito, was stinging, and in my opinion correct as to the absurdity of the Court contorting itself to save the law (as Roberts did in the original Obamacare challenge):
“The Court holds that when the Patient Protection and Affordable Care Act says “Exchange established by the State” it means “Exchange established by the State or the Federal Government.” That is of course quite absurd, and the Court’s 21 pages of explanation make it no less so.” [at 1]
From Scalia’s dissent: “We should start calling this law SCOTUScare.”
I believe Professor Jacobson is quite correct (as is Justice Scalia). The Supreme Court turned the law, if not upside down and inside out to find for Obamacare, then at least sideways. The same was true, if not more so, of Roberts’ opinion in Sebelius.
That latter fact is why I predicted exactly this outcome, as I did the outcome in Sebelius. This isn’t about caring whether I’m right; I would absolutely have preferred to have been wrong.
One consolation, however (if you can call it that), is that I don’t think the GOP was ready to deal with it if the decision had gone the other way. They might have risen to the occasion, but somehow I doubt it. We won’t get a chance to find out, however. At least this way the Republicans are spared the constant, incessant parade of sad stories of people whose subsidies were threatened—which is why the Republicans weren’t going to do away with subsidies for states in the first place. The hardship would have been too great; they were going to have a temporary fix while waiting till after Obama’s presidency was over (and his veto power as well), and hope for a Republican president to approve a more permanent and market-oriented solution.
Instead, the Obamacare system will become even more entrenched. That’s why Sebelius, which might have overturned Obamacare before it had really gotten going, was far more important (as well as a closer decision). None of this would stop a determined (read, “more conservative than at present”) Republican majority from changing things in 2016, if they manage to get a conservative Republican president in office. That’s quite an “if,” however.
[NOTE: Here’s what I wrote on the subject in March of 2015 during the SCOTUS hearings on the case:
But I’ll stick to my previous prediction, based on my general hunches about such things. I was right about the way the previous Obamacare decision (mandate) would go, although I failed to predict the details of Roberts’ reasoning. I make essentially the same prediction now that I made then, for a related reason: the Court’s reluctance to change things and fear of the major consequences of doing so. In the previous case, the issues were constitutional, and it would have been easier to rule against the Obamacare mandate because for the most part the law hadn’t yet gone into effect. In the present case, the issues are statutory, but the law has been in operation for over a year and a significant number of people have come to rely on it.
Should that matter? Isn’t the law the law? And wouldn’t that be all the more reason to stop it now, anyway, before it becomes more and more irrevocable? Well, that’s not the way people—even SCOTUS justices—usually think. If a ruling has enormous potential consequences that seem negative to the justices, it enters into their decision-making process and increases the burden on those who would argue for that change to occur. If in this case the justices fail to overturn the state subsidies as I am predicting they will, it will most likely be based on emotional/political reasoning on their part regarding consequences for real people in the real world, although they will most assuredly find legal cover for it by coming up with other reasons to justify the decision…
I will add that I hate to be gloomy here, and I hope I’m wrong, but I have to be truthful about what I see at this point. In order to change things (and minus a black swan event), it would be necessary for conservatives to control House, Senate, and presidency, and to do so for long enough to nominate more SCOTUS justices of the conservative persuasion. That’s a tall order. And to consolidate those gains, conservatives have to mount their own Gramscian march through the institutions of education, press, and entertainment.
I recalled that I had predicted a 5-4 vote back then. However, looking at that March post, I find that I actually wrote this:
Hey, if I’ve gone this far with predictions, I’ll go even further in throwing caution to the winds and saying that it will either be 5-4 with Kennedy joining the liberals, or 6-3 with both Kennedy and Roberts doing so but for different reasons.
Well, it was 6-3, but Kennedy and Roberts agreed on their reasons.]
[ADDENDUM: Further thoughts on the ruling and its significance here.]
I certainly hope he’s correct, although I deeply doubt it.
We have seen an extraordinary outburst of genuine extremism — and genuine authoritarianism — in the past several months, and it will no doubt grow more intense as we approach the constitutional dethroning of the mock messiah to whom our progressive friends literally sang hymns of praise and swore oaths of allegiance…There is an unmistakable stink of desperation about this, as though the Left intuits what the Right dares not hope: that the coming few months may in fact see progressivism’s cultural high-water mark for this generation. If there is desperation, it probably is because the Left is starting to suspect that the permanent Democratic majority it keeps promising itself may yet fail to materialize. The Democrats won two resounding White House victories but can hardly win a majority in a state legislature (seven out of ten today are Republican-controlled) or a governorship (the Democrats are down to 18) to save their lives, while Republicans are holding their strongest position in Congress since the days of Herbert Hoover. The Democrats have calculated that their best bet in 2016 is Hillary Rodham Clinton, that tragic bag of appetites who couldn’t close the deal in the primary last time around. “Vote for me, I’m a lady” isn’t what they thought it was…
He is correct that the idea that the left has already peaked is something the right “dare not hope.” He is also correct that on the state level the left is doing remarkably poorly.
But the strong position of the Republicans in Congress right now doesn’t amount to much because (a) the president is a leftist Democrat with veto power, and the Republicans cannot override his veto without significant Democratic help, which is only forthcoming in rare and extraordinary circumstances; and (b) the Republicans in Congress contain among their ranks too many RINOs to pass the sort of legislation (even assuming it would be vetoed) that conservatives would like to see.
In other words, the presidency itself is more powerful than Williamson credits. And the reality that Hillary Clinton, with her myriad flaws, is a very serious contender and current frontrunner to win the presidency in 2016 says a great deal about the sort of near-lock the Democrats and especially the left now have on the presidency of the United States.
That is not encouraging. Presidents appoint SCOTUS and other federal justices, and that has an enormous effect, too.
In his article, Williamson is also ignoring the fact that the war the left has been waging is not even primarily in the political arena: it is generational, and is fought culturally in the media, the educational system, and entertainment. I see no evidence that the left is losing that war, and I see no “desperation” about it. I see the thrill of victory powering them on.
Williamson also appears to be minimizing the remarkable and ferocious intensity and patience the left has displayed over time. That is the main reason the right “dare not hope” that we’ve reached peak leftism. The left has only just begun, despite the fact that they’ve been fighting this war for well over a hundred years.
Well, they say you learn something new every day, and yesterday was no exception.
Yesterday I learned that “Asian” means something quite different in Britain than it does in the US. Several commenters to this post of mine revealed that in Brit-speak the word “Asian” commonly refers to people from South Asia (India and Pakistan, as well as Bangladesh), whereas I already knew that in the US it ordinarily means people from the Far East.
Just another example of the fact that the English language on both sides of the pond differs in subtle ways that are not immediately apparent to a native speaker on one side (in this case, me).
The context of that post was the PC response in Britain to the discovery of widespread sex abuse in Rotherham, a case in which authorities allowed the abuse to go on for a long time in part so as not to offend the tender sensibilities of the community there from which the many perpetrators had come. And what was that community? Hint: it wasn’t the “Asian” one, even if you use the word as the British do, although it was a part of that group. It was the Pakistani community in Rotherham.
So it seems that the use of the word “Asian” itself, in reference to this story, is a way of at least partially hiding the origins of the criminals, because it lumps all South Asian Britons together, and they are most definitely not a unitary group. By doing so it not only hides the actual country from which these people came, but it hides the religion they practice, which is predominantly the Muslim religion.
This is not a meaningless or arbitrary distinction. People who live in Britain and whose origins are Indian differ significantly from those who are from Pakistan or Bangladesh. Pakistan and Bangladesh (originally known as East Pakistan) were created during the partition of India after the British left there in 1947. Countries are not partitioned for fun, they are partitioned because of differences and strife, and in this case the main difference was between an Islamic majority in both Pakistans and a Hindu majority in India. The partition was both preceded and followed by an enormous amount of bloodshed (estimated as involving the killing of up to a million people), and involved “14 million [people who] were displaced during the partition; it was the largest mass migration in human history.”
When people from the regions emigrated to Britain these differences remained, although they can become tempered as a function of how long people have been away from the homelands and as assimilation occurs. But assimilation does not occur at the same rates in both groups, nor does economic success, and this difference persists even for the small percentage who happen to hail from the same region and yet differ in religion:
The term ‘British Asian’ fails to recognise the diversity of British-born, second-generation Asians according to policymakers and researchers who took part in a roundtable discussion at LSE on cohesion, integration and social mobility among these communities.
A pilot study presented at the roundtable suggests that even Hindu Bengalis and Muslim Bengalis that live side by side in the East London Borough of Tower Hamlets have different experiences. This is in spite of the fact that the two communities come from the same ethnic group, speak the same language, migrated at approximately the same time, have the same socio-economic origins, emigrated from the same region – Sylhet in Bangladesh – and settled in the same places…
Hindu Bengalis from Tower Hamlets show relatively high levels of social mobility when compared to the findings of research on other Asian communities in East London. Although the first-generation had largely come without professional qualifications and took up ‘blue collar’ jobs in East London, most of the second-generation respondents worked in ‘white collar’ professions, such as jobs in the financial sector or as medical doctors.
They felt high levels of self-identification with the term ‘British’ relative to other options. They felt least affinity with the term ‘Asian’ when choosing between ‘Asian’, ‘Bengali’, ‘British’, ‘Hindu’ and ‘Indian’ because they felt it had negative connotations, particularly in the media. Hindu Bengalis, and British-born Asians in general, in London were found to prefer more nuanced identities instead of umbrella terms such as ‘British Asian’.
You can bet they do.
This Wiki article indicates that the immigrants from Pakistan to Britain are almost entirely of Muslim origin and culture: 92%. In contrast, those from India are predominantly of Hindu or Sikh origin: 55% for the former and 29% for the latter, with the remaining percentage Muslim.
So if we go back to the original story that engendered the discussion of “Asian,” it seems that in Rotherham the use of the word to describe the perpetrators reflects a very common practice that obscures the large differences within the “Asian” population in Britain, a difference based on national origin/religion. What’s more, in terms of the Rotherham story, there was either very specific pressure by the Muslim community to coverup the crimes and/or a very specific desire on the part of government to cover them up in order to soothe that community and not reflect poorly on it:
The extent to which the former Labour government tried to play down criminality and extremism among British Muslims for fear of undermining community cohesion is revealed today, as the fallout from the Rotherham sex abuse scandal continued…
Sources revealed that the July 2001 race riots in Bradford, Burnley and Rochdale marked a “turning point” in the way that Mr Blair’s government responded to Britain’s Muslim communities, and that there were efforts – more in “good faith” than in an attempted cover-up – to play down examples of disunity…
At the same time, it is now known that a Home Office researcher was conducting an investigation into trafficking and underage prostitution by mainly Muslim gangs in Rotherham, but it was never published, and the files were seized in 2002 by the Labour-run council when she tried to blow the whistle. The researcher faced intimidation by the police and council officials, the report by Professor Jay revealed last week…
Local council officials are to be called before the Commons Home Affairs committee about the suppressed 2002 report and the wider issue of the abuse of girls.
While there is no suggestion that Mr Blunkett or his close advisers knew about the 2002 Rotherham report, sources said the Government was obsessed with keeping the Muslim community onside – even if it meant sidestepping serious criminality and extremism.
Hope that clears up the confusion from the previous Rotherham post.
[NOTE: And what of the people in Britain who are of “Asian” origin in the way the word is commonly used in the US—in other words (literally), from China, Japan, Vietnam, or other countries in the Far East? What are they called in Britain? The best I could tell from Googling it is that the word “Oriental” (which in the US is now considered racist or colonialist, and verboten) is used, or they are designated by their specific country of origin.]
Previously a lifelong Democrat, born in New York and living in New England, surrounded by liberals on all sides, I've found myself slowly but surely leaving the fold and becoming that dread thing: a neocon. Read More >>