Posted by Rojas @ 6:38 pm on June 28th 2012

Justice Roberts’ long game?

I don’t want to descend into Sullivanesque wishful thinking about the brilliant strategies of political figures, but there have been a couple of observations regarding the SCOTUS health care decision that are worth mentioning here.

First: there is very compelling evidence that the initial SCOTUS vote was 5-4 to repeal the PPACA and that Roberts changed his vote after conference:

After a preliminary read of the opinions in the Health Care Cases (National Federation of Independent Business v. Sibelius), there seems to be substantial evidence that the initial vote in conference was to strike down the mandate as unconstitutional. The opinion of Justice Scalia, Kennedy, Thomas, and Alito looks like parts of it were once a majority opinion. And there are passages that still read as a majority opinion responding to a dissent by Justice Ginsburg.

Did he do this, as progressives would have it, to preserve the court’s credibility? That seems unlikely given that public opinion runs 60-40 against the PPACA. Ezra Klein suggests that Roberts was pulling a Marbury v. Madison strategy: give the other side what it wants at a superficial level, but hide the important precedent for future application inside the decision. Specifically, Klein suggests that the court has established a precedentially relevant 5-4 majority that will prevent future use of the commerce clause for most purposes:

By voting with the liberals to uphold the Affordable Care Act, Roberts has put himself above partisan reproach. No one can accuse Roberts of ruling as a movement conservative. He’s made himself bulletproof against insinuations that he’s animated by party allegiances.

But by voting with the conservatives on every major legal question before the court, he nevertheless furthered the major conservative projects before the court — namely, imposing limits on federal power. And by securing his own reputation for impartiality, he made his own advocacy in those areas much more effective. If, in the future, Roberts leads the court in cases that more radically constrain the federal government’s power to regulate interstate commerce, today’s decision will help insulate him from criticism. And he did it while rendering a decision that Democrats are applauding.

The counter-argument is that the expansion of apparent “taxation” authority makes the commerce clause restriction meaningless; Congress will simply choose to economically penalize any behavior which would cut against the government’s new authority. Yet Roberts put some very specific language into the decision regarding the limits of this new taxation authority (see pages 41-44 of the decision proper).

There is at least a case to be made that this was an instance of surrendering the battle in order to win the larger war. And, moreover, there is the matter of Obamacare still being on the table as a political rallying issue for conservatives, with “squishy justices” as a new angle to be played. We shall see.

Posted by Brad @ 3:21 pm on June 28th 2012

Meme of the Day

People who have tweeted that they are moving to Canada because of this decision. The irony, it burns.

Posted by Brad @ 10:12 am on June 28th 2012

The Mandate Survives

Roberts joins the left in the decision, and law watchers everywhere are furiously parsing trying to figure it all out. Go here to follow.

Posted by Brad @ 8:18 pm on June 27th 2012

The One Line of Analysis I’ve Yet to Hear In SCOTUS Predications Regarding ObamaCare

The narrative in the Supreme Court decision on Obamacare, imminent tomorrow, is that there is one side that is just itching for a ruling against the individual mandate on the grounds that it’s bad for freedom (in just a soundbyte sense, which is to say it’s something that liberals like) but mostly that fuck Obama. And, on the other side, the basic assumption that striking down a law that is Good is inherently unjust, but mostly will be evidence that Republicans are CRAZY AND HAVE STACKED THE SUPREME COURT WITH POLITICIANS IN ROBES!!!!

The unspoken assumption in all of this will be that laws you think are good on their merits must also be constitutional on their merits, and laws that you think are bad on their merits must also be unconstitutional on their merits. The one, somehow, inherently follows the other, such that I have seen almost no people who support Obamacare and its basic assumptions about the goodness of its actions, who also believe it is unconstitutional, nor have I seen anybody who thinks the law is good on its merits but unconstitutional according to the plain meaning of it. The idea that a law may be a basically sane and well-meaning approach to a real societal problem that will probably work pretty well, but is also unconstitutional and their are more fundamental reasons to call that out in spite of its good intentions, appears not to have occurred to anybody.

So let me just say it out loud. I do not believe that this court is necessarily more partisan than ANY COURT WE HAVE EVER SEEN or whatever, although their are certainly partisans on it. And I do not believe, necessarily, that whatever decision they reach will be inherently tied to partisan considerations, although that would certainly have occurred to said partisans.

Really though, this case should not be about whether you agree with Obamacare or not, or support Obama or not. It should be about whether the federal government has the authority, under the Commerce Clause, to compel action in private economic decisions. My very construction of that question belies my own opinion on it, but that’s the gist of it. And that’s going to be the real lasting legacy of this decision – whether there is any limit to the ability of the federal government to regulate behavior, if they believe in the cause enough, and what precedents that sets, one way or the other.

One would think this would be the forefront on any conversation on the matter. It won’t be, tomorrow, but keep it in mind.

Posted by Brad @ 11:24 am on June 20th 2012

Nero Fiddles While Tom Waits

Stars Earn Stripes will feature celebrities competing in tough military training exercises and has the exclusive online cast scoop. NBC has tapped General Wesley Clark (ret.), the former Supreme Allied Commander Europe for NATO and 2004 presidential candidate to host the show along with TV personality Samantha Harris (Entertainment Tonight, Dancing with the Stars).

The celebrity competitors include boxing champion Laila Ali, actor Dean Cain (Out of Time), former NFL player Terry Crews (The Expendables), singer Nick Lachey (The Sing-Off), Sarah Palin’s husband Todd Palin, Olympic gold medalist Picabo Street, The Biggest Loser trainer Dolvett Quince and WWE star Eve Torres.

Posted without further comment, save one: how could they NOT have gotten Rielle Hunter?!

Posted by Brad @ 3:21 pm on June 19th 2012

Things You Won’t Hear About Immigration Part II

I love this myth-busting stuff, because for whatever reason I feel like we have such solid caricatures in the American brain about things – incredibly specific images that are called to mind immediately when you say a word like “terrorist” (Arab dude with turban on his head and AK-47 slung across his back, or young muslim sweating in his airplane seat with a bomb in his underwear) or “immigration” (young Mexican man crossing the Rio Grande at night to steal American jobs at Home Depot) – that bears so little resemblance to the actual galaxy of meanings the word entails or the actual realities that exist within that galaxy. These images actually get in the way of understanding that, for instance, that most people we label terrorists for detention or execution purposes would be found innocent in a court of law (in most cases, rightly) for any specific crime against the United States. Or that most Mexican immigrants are either kids or people who have lived and worked legally and assimilated in America for 20+ years.

To wit: Quick, what is America’s fastest-growing racial minority?

Posted by Brad @ 5:18 pm on June 18th 2012

I Don’t Care About…Steroids

I’ve stated this explicitly a few times before, so may as well make it an official entry into my I Don’t Care About list. I’ll dust off an old comment to do so.

Roger Clemens was just found not guilty in his perjury trial. Barry Bonds hits the Hall of Fame ballot this year. Mark McGuire is the hitting coach for the Cardinals and mentoring young hitters. Ryan Braun, the reigning NL MVL tested positive (waaaay positive) immediately following his MVP award, which was later overturned on a technicality which, while perfectly fair, didn’t really speak to the question of guilt. Hell, even getting out of baseball, Lance Armstrong continues to be overtaken by allegations, and the year’s most celebrated horse, I’ll Have Another, was trained in a shop notorious for doping and which may well have contributed to him not having a shot at the Triple Crown.

All this lead to ESPN magazine rightly asking the question “do we even give a sh*t anymore?” (paraphrased).

My answer: No. I really don’t.

My basic stance here is that there is no practical solution, and that the lines we try to draw are little more than polite fictions.

Using baseball as the example, would I prefer that all players be natural athletes? Sure. But there’s no way to accomplish that in any meaningful way, and it comes down to an arbitrary philosophical question rather than a moral one.

I think it’s important for people to understand that “performance enhancing drugs” isn’t a light switch – which is to say it isn’t really on or off, a binary yes-no kind of thing.

Rather, it’s a spectrum – a color wheel sort of thing, with an arbitrary, often-moving line where, on one side, we call it “dark” and on the other side “light”.

What non-athletes I think don’t get is that pretty much EVERY professional athlete is taking a TON of performance-enhancing substances, for everything from injury recovery/prevention injections to just routine conditioning supplements. Go into any GNC store in the world and start reading ingredients and you’ll see what I mean. Ask any professional or even semi-professional athlete what they ingest besides food and booze on a daily basis, and you’ll often get a list a mile long – checking ingredients would be like reading a shampoo bottle.

Most of that stuff we call legal, and some of it we call illegal, and some of the stuff legal today is illegal tomorrow, and some of the stuff that’s legal tomorrow will essentially do the same thing as the illegal stuff of today. There’s about a million ways, for instance, to bump your testosterone levels (as per Braun). Some are legal, some aren’t, and some guys have levels that baseline at a level that would be illegal for other guys. But the line is entirely arbitrary, and the basic idea – that there are some guys that succeed based on natural ability and talent, and then the f’ing cheaters – is entirely false.

And, frankly, the other thing I think people understand is that illegal PEDs aren’t some kind of magic bullet that causes a .230/13/42 guy to go to a .313/54/138 guy in six months. You could dope me up with all the PEDs that I could tolerate without dying and it’s not like I’d become a major league all-star (or even minor league journeyman). It really only makes a difference in shades. All the major leaguers are taking stuff, and they’re all, for the most part, all taking the same stuff. And some of them are taking more of it, or certain varieties that cross the line by being slightly more illegal than the stuff that’s legal. But almost without exception, the difference is in degree, not kind. A tomato can is a tomato can, and a guy that can blast is a guy that can blast.

The premise – that we can (or do) separate the natural from the enhanced is entirely nonsense in every real-world way. It becomes instead “purity theater” with no meaningful impact on the game save causing a lot of headaches and distractions. I’d rather instead a system in which players are given regularly health checkups (physicals and blood work with a higher bar) to make sure all they stuff they’re taking isn’t killing them, and then sending them on their merry way.

Again, I get integrity of the game arguments, and entirely sympathize. But in the history of sporting contests, there have been things that athletes do to themselves that a “natural” person doesn’t that gives them an edge, be it mechanical, chemical, whatever. That is, in fact, in large measure what makes them athletes. As long as there is a material advantage to being better at something physical than your peers, people will find ways to tweak their physicality to give them an edge. And the ultimate irony is, the more you try to regulate it, the more you basically ensure an imbalance. When nobody or everybody is taking steroids, it comes down to skill, heart, intelligence, and training. When SOME people are taking steroids, it comes down to who is the best at not getting caught. And when you stop sweating it, you let medical science continue to tweak athlete’s bodies while, on par, the kinds of qualities that we admire in athletes still wind up coming out on top (there is a reason, for instance, why in MMA the really ripped body builder types tend to get pummeled by the wiry guys or dudes with beer guts, or why Triple H couldn’t play first base).

I’m pretty okay with the status quo in baseball, truth be told – it’s a level of purity theater I can basically live with – but you’re not ever going to see me get worked up about it (and, when prosecutors or government officials (hello McCain) start getting involved, I get downright annoyed).

Posted by Brad @ 4:08 pm on June 18th 2012

Finding the Low Ground

Quick. Say you’re a Taliban commander in a far flung area of Pakistan. You have control over a large swath of territory, in which American forces regularly carry out strikes and attacks. You finally have a bit of a moral high ground issue, in that many of these strikes kill women, children, and innocents, and finally a groundswell of outrage beyond your little corner of the globe is beginning to build. What’s your next move to take advantage of this relative growth in sympathy and moral credit?

If banning polio vaccines in protest of drone strikes isn’t the answer that pops into your head, you obviously don’t think like a Taliban commander.

P.S. I told you so.

He also said the polio campaign could be a cover for CIA espionage – a reference to Shakil Afridi, the Pakistani doctor reported to have helped American agencies identify Osama bin Laden.

This is unrelated to the rather amazing moral “perspective” that the Taliban in this area are bringing. But it does underscore that our consequences have actions, and that the rules and protocols governing war in the civilized world are not useless roadblocks based on antiquated circumstances, but rather very hard won and forward thinking wisdom on efficacy, unintended consequences, and why deals with the devil almost always favor the devil, in the end. There tend to be very, very, very good reasons for the way we do the things we do (or used to, anyway), even if those things directly retard our ability to get immediate gratification for our notions of revenge or even justice. We blithely disregard those hard-won truths at our peril. (or, in this case, at other people’s).

Posted by Brad @ 12:24 pm on June 18th 2012

Ron Paul Wins Iowa

Nearly six months later, the results from the Iowa caucuses are in and official, and the winner of the state is

Posted by Jerrod @ 3:37 am on June 15th 2012

Abu Muq on sovereignty

Abu Muqawama had a good post on soveriegnty issues and the “death” of Westphalia.

A more difficult problem for sovereignty is the threat posed by transnational groups with absolute aims. Their aims in and themselves may not be strategic threats to the United States, but they certainly pose tactical threats in the form of mass-casualty attacks. The United States usually acts in cooperation with partner states in launching airstrikes and ground raids, but has acted unilaterally when circumstances demand decisive and preemptive operations. When not launching kinetic strikes, the United States has also taken on sovereign responsibilities rightfully performed by host governments in an effort to build host nation capacity. While kinetic strikes pose some risk of blowback, capacity-building arguably poses a moral hazard by enmeshing the United States in the domestic politics of local actors who see Uncle Sam as a walking ATM. When the US tries to make unruly local clients reform, it only deepens American involvement in their domestic politics and further threatens their sovereignty.

I unfortunately do not have a lot of time to follow these kinds of discussions so maybe this is getting more attention than I’m aware, but I think this is a fascinating issue in international relations.

Posted by Brad @ 12:43 am on June 15th 2012

Music Video of the Week

So, you guys understand that this is going to totally become a Music Videos by Brad blog, right? We seem to assume that the less we post, the less we post of everything. But that’s not the case. In reality, the constant is the music videos, and the less we post, the more they subsume all else. Ye have been warned.

Anyway, Jack dredging up an old music video made me remember that he said something last month (although now I can’t find it) about some old Aesop Rock I had posted. Which made me get in an Aesop Rock mood. Most music I listen to, I essentially immerse myself with – just listen to it over and over again, compulsively, before finally flitting it into the rotation. Aesop Rock though I only listen to once in a blue moon, and for some reason it hits a different part of my brain – the part that lights up when I’m, say, doing math problems or reading James Joyce (even though I’m fairly well convinced the lyrics are all nonsense)(and not that I do much of either). I sit there with bobbing head and a furrowed brow. In any event, dude’s got one of the best natural flows in rap, which is saying something. And, apparently, he’s got a new album.

Aesop Rock – Zero Dark Thirty


Posted by Brad @ 6:19 pm on June 13th 2012

Quote of the Day

Speaking of liberty agendas…

“I am the only candidate that is promising to submit a balanced budget to Congress in 2013. I promise to veto any expenditures that exceed revenue. I’m the only candidate that doesn’t want to bomb Iran. I’m the only candidate that wants to get out of Afghanistan tomorrow. I’m the only candidate that wants to repeal the Patriot Act. I’m the only candidate talking about marriage equality as a constitutionally guaranteed right.”

Gary Johnson

Yeah, but what kind of lunatic who supports those things doesn’t see the wisdom of voting for Obama/Romney, because otherwise Romney/Obama might win!


Posted by Brad @ 6:12 pm on June 13th 2012

Two Paul Endorsements

The first, Rand Paul endorses Mitt Romney. This gets some obvious blowback in Paulian circles, which he addresses, but I don’t begrudge him it in the least. If one believes a liberty agenda has to be channeled through the two-party system in some way, may as well be the Republican party, and if so, you have to, well, politic. And frankly I think it’s a more natural home – libertarianism (and Ron Paul) has been treated badly in both parties, of course, but its core insights are, I feel, more naturally at home in conservatism than liberalism – and these days, it seems conservatives are more willing to accept diversions from orthodoxy where Paul makes them (non-interventionism, social liberalism), than liberals (all economic thinking, pro-life, etc.). As Brian Doherty says offhand:

As I wrote here at Reason last month, by most rights Paul should be sweeping the MSNBC vote, including Rachel Maddow, if the progressive vision of rights, liberty, respect for civil liberies, not killing people because the president says so or ruining people’s lives because of their personal choices, ending war and government propping up of plutocrats, actually means anything to them.

Mostly, I find, the “make government give people stuff” is the only part they care about, so sorry Ron Paul (and American lives and liberties).

He says that, incidentally, in reference to the second Paul endorsement, that of Ron Paul, from Joe Scarborough, who pens a piece for Politico called simply “Why I voted for Ron Paul”.

Posted by Brad @ 3:36 pm on June 12th 2012

News of the Day

The One Hitters, the softball team of pro-pot activists and lobbyists, beat White House softball team STOTUS (the Softball Team of the U.S.) 25-3.

Posted by Brad @ 3:04 pm on June 7th 2012

Now DOMA Failing Even Rational Basis Reviews

Courts are now being forced to admit that they can’t even come up with conceivable legitimate interests that might allow the federal government to not recognize legal gay marriages.

It’s kind of amazing watching this house of cards come down as literally centuries and centuries of irrational prejudice are being stripped away faster and faster. We’ve come a long way – it’s kind of awesome that, on this one at least, our society just kind of woke up one morning, looked around, and thought “Huh. Why are we oppressing these people again? What was the point of that?” Would that it always ended with a whimper like this.

Posted by Brad @ 1:15 pm on June 6th 2012

Music Video of the Week

Reggie Watts is a genius – sort of like what you’d get if you crossed Keller Williams and Zach Galifianakis, threw in a little Questlove and Flight of the Conchords, and then got the resulting person really, really high – and it’s awesome to see him having a breakout year in 2012. For AV Undercover, he covers Van Halen as faithfully as he knows how.

Reggie Watts – Panama

Reggie Watts covers Van Halen


Posted by Brad @ 12:46 pm on June 1st 2012

Quote of the Day

“I don’t think God is through with me.”

John Edwards