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“The Inactivity Room”: The Fruitless Search For The Supreme Court’s Rationale

Yesterday, Ben Smith quoted a conservative lawyer offering a way the Supreme Court’s conservative majority may think about striking down the Affordable Care Act. Essentially, this lawyer said, they think that the last 70 years of the Court’s interpretation of the Constitution’s commerce clause, which underlies much of what the modern American government does, is a giant fraud perpetrated by liberals. Even though they know they can’t toss out that last 70 years all at once, they have no problem finding some ridiculous justification for striking down the ACA, no matter whether they really believe it or not. “You have built a fantasy mansion on the Commerce Clause,” the lawyer tells Smith. “You can hardly blame us if, in one wing of this mansion, down a dusty corridor, we build a fantasy room called ‘inactivity,’ lock the door, and don’t let you in.” None of us have any way of knowing if this is what the justices are actually thinking, persuasive as it sounds. But there’s something going on among liberal commentators, both those who think the Court will strike down the ACA and those who think they might uphold it, to try to look through the oral arguments in the case and in recent decisions to determine, not necessarily the outcome of the decision, but the reasoning that might accompany it. This, I fear, is fruitless.

I’ll get to why in a second, but here are a couple of good examples just from yesterday. At TPM, Sahil Kapur looks at Justice Roberts’ concurrence in a recent case to suggest that he may be particularly sensitive to preserving the Court’s integrity and reputation, which could lead him to be reluctant to take such a partisan action as overturning the signature legislation of a president from the other party. Jonathan Bernstein, in a post not far from the position I’m taking, says, “The core problem here is that those who want a pre-New Deal reading of the Commerce Clause and the rest of the Constitution want to impose something that, in practical terms, would be highly unpopular, affecting laws such as the minimum wage. There’s really no easy way to do what conservative judicial activists want to do. And that leaves them with options that are going to look, to most people, very arbitrary.” But I really don’t think they care.

If the Court’s conservatives do strike down the ACA, the reasoning they’ll use to do so is irrelevant. That’s the whole point of having a Court like this one: it’s all about the outcome. Let’s recall the most revealing line in the Bush v. Gore decision: “Our consideration is limited to the present circumstances, for the problem of equal protection in election processes generally presents many complexities.” In other words, don’t even think about ever trying to use this case as precedent for anything, because we don’t even believe what we’re saying. And the Roberts Court is even more conservative and partisan than the Court that decided Bush v. Gore was. William Rehnquist was replaced by Roberts (not much difference there), and the centrist Sandra Day O’Connor was replaced by the hard-right Samuel Alito. They would be more than happy to hang their invalidation of the ACA on the novel “inactivity” justification, then never consider the rationale again. Imagine there was some future piece of conservative legislation passed by a Republican president and Congress that regulated “inactivity” in some similar way, and liberals sued to overturn it. Is there anyone of any ideology who actually believes the conservatives on this Court would say, “Well, we’ll have to be consistent about this”? Of course they wouldn’t. The outcome is the only thing that matters.

So it isn’t that they’ll build a room called “inactivity” down that dusty corridor and lock the door. It would be more accurate to say that they’ll grab the nearest unlabeled closet and cram the ACA inside, leaving no room for anything else before they shove the door closed and break off the key in the lock. Then they’ll never look at the closet again, unless it serves the purpose of striking down more progressive legislation.


By: Paul Waldman, The American Prospect, April 9, 2012

April 10, 2012 Posted by | Health Reform, Supreme Court | , , , , , | Leave a comment

“The Paul Ryan Cult” And The Gullible Center

So, can we talk about the Paul Ryan phenomenon?

And yes, I mean the phenomenon, not the man. Mr. Ryan, the chairman of the House Budget Committee and the principal author of the last two Congressional Republican budget proposals, isn’t especially interesting. He’s a garden-variety modern G.O.P. extremist, an Ayn Rand devotee who believes that the answer to all problems is to cut taxes on the rich and slash benefits for the poor and middle class.

No, what’s interesting is the cult that has grown up around Mr. Ryan — and in particular the way self-proclaimed centrists elevated him into an icon of fiscal responsibility, and even now can’t seem to let go of their fantasy.

The Ryan cult was very much on display last week, after President Obama said the obvious: the latest Republican budget proposal, a proposal that Mitt Romney has avidly embraced, is a “Trojan horse” — that is, it is essentially a fraud. “Disguised as deficit reduction plans, it is really an attempt to impose a radical vision on our country.”

The reaction from many commentators was a howl of outrage. The president was being rude; he was being partisan; he was being a big meanie. Yet what he said about the Ryan proposal was completely accurate.

Actually, there are many problems with that proposal. But you can get the gist if you understand two numbers: $4.6 trillion and 14 million.

Of these, $4.6 trillion is the revenue cost over the next decade of the tax cuts embodied in the plan, as estimated by the nonpartisan Tax Policy Center. These cuts — which are, by the way, cuts over and above those involved in making the Bush tax cuts permanent — would disproportionately benefit the wealthy, with the average member of the top 1 percent receiving a tax break of $238,000 a year.

Mr. Ryan insists that despite these tax cuts his proposal is “revenue neutral,” that he would make up for the lost revenue by closing loopholes. But he has refused to specify a single loophole he would close. And if we assess the proposal without his secret (and probably nonexistent) plan to raise revenue, it turns out to involve running bigger deficits than we would run under the Obama administration’s proposals.

Meanwhile, 14 million is a minimum estimate of the number of Americans who would lose health insurance under Mr. Ryan’s proposed cuts in Medicaid; estimates by the Urban Institute actually put the number at between 14 million and 27 million.

So the proposal is exactly as President Obama described it: a proposal to deny health care (and many other essentials) to millions of Americans, while lavishing tax cuts on corporations and the wealthy — all while failing to reduce the budget deficit, unless you believe in Mr. Ryan’s secret revenue sauce. So why are centrists rising to Mr. Ryan’s defense?

Well, ask yourself the following: What does it mean to be a centrist, anyway?

It could mean supporting politicians who actually are relatively nonideological, who are willing, for example, to seek Democratic support for health reforms originally devised by Republicans, to support deficit-reduction plans that rely on both spending cuts and revenue increases. And by that standard, centrists should be lavishing praise on the leading politician who best fits that description — a fellow named Barack Obama.

But the “centrists” who weigh in on policy debates are playing a different game. Their self-image, and to a large extent their professional selling point, depends on posing as high-minded types standing between the partisan extremes, bringing together reasonable people from both parties — even if these reasonable people don’t actually exist. And this leaves them unable either to admit how moderate Mr. Obama is or to acknowledge the more or less universal extremism of his opponents on the right.

Enter Mr. Ryan, an ordinary G.O.P. extremist, but a mild-mannered one. The “centrists” needed to pretend that there are reasonable Republicans, so they nominated him for the role, crediting him with virtues he has never shown any sign of possessing. Indeed, back in 2010 Mr. Ryan, who has never once produced a credible deficit-reduction plan, received an award for fiscal responsibility from a committee representing several prominent centrist organizations.

So you can see the problem these commentators face. To admit that the president’s critique is right would be to admit that they were snookered by Mr. Ryan, who is the same as he ever was. More than that, it would call into question their whole centrist shtick — for the moral of my story is that Mr. Ryan isn’t the only emperor who turns out, on closer examination, to be naked.

Hence the howls of outrage, and the attacks on the president for being “partisan.” For that is what people in Washington say when they want to shout down someone who is telling the truth.


By: Paul Krugman, Op-Ed Columnist, The New York Times, April 8, 2012

April 10, 2012 Posted by | Budget, Election 2012 | , , , , , , , | Leave a comment

“Promiscuous Fabrication”: Mitt Romney’s Lying is the Real Voter Fraud

Forget ACORN. If you really want to know who’s defrauding millions of Americans out of their right to vote it’s Mitt Romney and the Republican Party. And they’ve got lots of ways to do it.

One of the most popular is obvious enough. In those states where Republicans control both the governor’s office and state legislature a systematic effort has been underway in earnest over the past two years to erect barriers to voting by those traditional Democratic Party constituencies such as the elderly, the poor and the young who might stand in the way of the Conservative Movement’s drive for a monopoly of power.

But another form of voter fraud is less obvious. It involves stealing people’s votes by – and let us not flinch from the word – lying to them.

In a glorious eight-minute dissection (what Fox News would surely call a shrill and unhinged screed) Rachel Maddow cites chapter and verse to prove her case that “the degree to which Mr. Romney lies, about all sorts of stuff, and doesn’t care when he gets caught, may be the single most notable thing about his campaign.”

Maddow Blog editor Steve Benen has been filing regular updates to what he calls his “Chronicles of Mitt’s Mendacity.” And Benen is now up to Volume XII.

For example, campaigning in Wisconsin, Romney complained “The President put an ad out yesterday talking about gasoline prices and how high they are. And guess who he blamed? Me!”

Not true, says Benen.

Another Romney campaign ad argues that Obama “has managed to pile on nearly as much debt as all the previous presidents combined.”

Not even close, says Benen.

In the same ad, Romney claimed “President Barack Obama named himself one of the country’s four best presidents.”

That’s blatantly untrue, says Benen. And on and on and on it goes.

The Washington Post’s Dana Milbank was equally gob-smacked by the audacity of Romney’s dishonesty.

Writing about Romney’s most recent speech in Washington, Milbank judged as “incorrect, wrong, false and fictitious” Romney’s serial falsehoods that: 1.) President Obama: was responsible for the “weakest economic recovery since the Great Depression;” that 2.) eliminating Obamacare would save “about $100 billion a year;” that 3.) Obama was “taking a series of steps that end Medicare as we know it;” and that 4.) the President had created an “unaccountable panel, with the power to prevent Medicare from providing certain treatments.”

Milbank noted that Romney’s speech earned no fewer than three “Pants on Fire” ratings from PolitiFact for his bald faced lies – just some of the more than 32 times PolitiFact has flagged Romney for similar fibs, falsehoods and fabrications.

Not only does Romney’s lying seem gratuitous it’s also epidemic on the right. In his New York Times column on Saturday, for example, Joe Nocera marvels at conservative efforts to pull the plug on the growing popularity of Chevrolet’s electric hybrid Volt by flat out lying about the vehicle, which was recently named European Car of the Year and is coming off its best month yet with 2,200 cars sold.

Yet for months, the conservative propaganda machine has been mocking the Volt as “roller skates with a plug,” says Nocera.

Nocera quotes the Volt’s inventor, legendary auto executive Bob Lutz (“who is about as liberal as the Koch Brothers,” says Nocera) as dismissing as “nuts” conservative criticisms of a car that he says makes “a significant achievement in the auto industry.”

In his Forbes blog, Lutz counters what he called the “rabid, sadly misinformed right.” Nocera also says Lutz “has largely given up” on conservatives after even his conservative intellectual hero, Charles Krauthammer, described the electric car as “flammable.”

Although Lutz remains deeply conservative, Nocera said he’s “become disenchanted with the right’s willingness to spread lies to aid the cause.”

With the nation now celebrating the 50th anniversary re-release of the classic movie To Kill a Mockingbird, Mitt Romney reminds me of that loathsome pair, Bob and Mayella Ewell, the father-daughter tandem who Gregory Peck’s Atticus Finch described as “victims of cruel poverty and ignorance” who brought false charges of rape against the Negro tenant farmer Tom Robinson in “the cynical confidence that their testimony would not be doubted.”

Like Atticus’s all-white, Southern male jury, Romney seems to assume that American voters will merely “go along” with his assumption – the “evil assumption” – that all Democrats lie, that all Democrats are immoral beings, that all Democrats are not to be trusted.

It should be noted that Atticus Finch lost his case before a jury that was more receptive to its own prejudices than to the truth. And if Mitt Romney also exhibits that “cynical confidence” his falsehoods won’t be doubted, the reception he got from the Newspaper Association of America last week may explain why.

There was Mitt Romney standing before a gathering of journalists, making a series of “incorrect and dishonest accusations,” writes David Corn, and not once was Romney “hooted out of the room” by the nation’s assembled press corps. Indeed, says Corn, “he faced no penalty” at all.

The nation’s press, like Attitus’ backward Alabama jury, has its own rigid and time-honored codes which prevent it from seeing the truth, the whole truth and nothing but the truth. And among them, says Atlantic magazine’s James Fallows, is the “false equivalence syndrome” – that “objective-seeming” method of covering the news that unwittingly and inexcusably awards Republicans a license to lie because it compels the media to give equal credence to “both sides” in every dispute even when one of those sides just makes stuff up.

It has never been enough for a people to merely have the formal right to vote. That vote must also count for something when cast by an “informed” voter whose choice is an accurate reflection of the voter’s genuine wants and beliefs.

While it may not be possible to plant democracy at the end of a bayonet it has always been possible to create the appearance of democracy using physical threats or force. We are all familiar, for example, with the cynical charade of right wing dictators and left wing revolutionaries whose legitimacy derives from their having been “elected” in a campaign when they were the only candidates allowed on the ballot, or chosen by voters who were manipulated and coerced.

It is also possible for partisans to manufacture an artificial legitimacy through lies and distortions of the critical information voters need to make an informed judgment on the important issues of the day – the bare minimum that’s required in a democratic political system that claims to be founded on “consent of the governed.”

And a party or a candidate that seeks political power by depriving voters of their rightful connection with reality is engaged in a coup d’etat every bit as real as if the overthrow had been carried out with guns.

But let’s be clear. Lying is not merely a moral failing. In a democratic republic like ours whose legitimacy is rooted in popular sovereignty and consent of the governed the routine, almost promiscuous fabrication of basic facts by Republicans and Republican candidates like Mitt Romney is as much a theft of a citizen’s right to vote as if that citizen was prevented from ever voting at all.


By: Ted Frier, Open Salon, April 9, 2012

April 10, 2012 Posted by | Election 2012 | , , , , , , | Leave a comment


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