Monthly Archives: June 2012

06/28/12

Battle of Wits

I mostly hate the cultish “Princess Bride.” I hate it precisely for other peoples’s exaggerated praise for it. Typically juvenile of me. “Oh, it’s dialectic is so rich.” “Andre the Giant is superb!” Whatevs. Rocky IV, by contrast, slays every time. “Whatever he hits . . . he des- thtrrroys!” (That’s thick phonetical Russian, right there.)

But, in reading the United States Supreme Court’s decision in National Federation of Independent Business v. Sebelius, I was reminded today of one of the movie’s most famous and hysterical scenes:

Two things.

First, I have no political or personal objection to the Patient Protection and Affordable Care Act.

Second, I think the individual mandate is probably constitutional as an exercise of the Commerce Clause power, according to how existing precedent would inform the scope of that power. That being said, I think existing precedent probably takes too expansive a view of the text. Unfortunately, that ship sunk decades ago.

So, as I make the following comments, I don’t mean to say that I disagree with the result of the Opinion, but only that I fell for two of the most classic blunders: (1) matching wits with a Sicilian when death is on the line and (2) provoking an Asian land-war.

Today’s case involved a challenge to the Affordable Health Care Act. There were two main objections to it. I would comment on the Supreme Court’s treatment of only one. The principal challenge to the Act concerned the constitutionality of an “individual mandate.” The individual mandate portion of the Act says that all individuals must carry health insurance or pay an annual penalty. In other words, “Aflac!”

But, before the Supreme Court could decide whether that mandate was constitutional, it had to determine if it could even hear the case.

The Anti-Injunction Act prohibits a court from considering a challenge to a tax before that tax has actually been collected. In other words, you have to have already paid the tax before bringing a lawsuit. You can’t preemptively challenge or “enjoin” a tax you don’t like.

If the “penalty” under the Healthcare Act, for violation of the mandate, is, in fact, a “tax,” then the US Supreme Court could not entertain the case. If it was not a tax, then the Court could.

Guess what the plurality opinion concluded?

The penalty is not a tax.

Having so concluded, the Court was free to consider whether the individual mandate was, in fact, otherwise a constitutional exercise of Congressional power.

There were two possible bases for finding the mandate constitutional.

1. Congress properly included the mandate as an exercise of its Commerce Clause power;

or

2. Congress properly included the mandate as an exercise of its Taxing power.

(I could explain these constitutional clauses to you but I could also Ped-Egg your back with a cheese grater. Suffice it to say, Congress has to be specifically authorized by a provision of the Constitution before it can do stuff. These are the two most commonly employed authorizations of power.)

There are 9 Justices on the Supreme Court. You need 5 to agree on the outcome of any issue. None have to agree as to the reasoning.

4 concluded that the mandate was unconstitutional under either power.
4 concluded that the mandate was constitutional pursuant to the Commerce Clause power.
1 concluded that the mandate was constitutional pursuant to the Taxing power.

[Punches TI-81. Graph mode.]

That makes 5 Justices concluding that the mandate was constitutional under some power. In other words, it stays.

Wait just a second. How can a mandate penalty that’s not a tax be constitutional pursuant to the Taxing power? Nice try, Chief Justice Johnny R. Obviously, “A clever man would put the poison in his own goblet because he would know that only a great fool would reach for what he’s been given.”

I’m of course not a great fool, so clearly you did not say that, for purposes of the Anti-Injunction Act, the mandate is not a tax but, for purposes of the constitutional analysis, it is? [Nervous laughing.]

And, you must have known me not to be a great fool — you would have counted on it — so clearly I cannot choose the wine in front of me or the not-tax in front of you or the tax not in front of either of us!? [Anxiously perspiring.] Wait, what are we talking about it??

To quote the Opinion of the Court, “Hey, look over there!”

Chief Justice Roberts then concluded by saying, “I switched glasses while your back was turned!! Hahahahahahahaha!”

Let me summarize:

To allow itself the opportunity to rule on the constitutionality of the mandate, the Court concluded that the penalty was not a tax. Then, to uphold the constitutionality of the mandate, the deciding jurist, Chief Justice Roberts, then concluded that it was — a tax.

Truly, a dizzying intellect.

Performed by ipoetlaureate. Music produced by DJ Transform.

Today’s song blog here:

Shell Game

06/25/12

The Supremes

A number of important decisions in the United States Supreme Court today.

Live blogging over at scotusblog.com.

I’ll be back with my thoughts. But, it looks like no Health Care decision today.

06/20/12

Fast and Furious

We live in a world of necessary evil. We would have no policy in national security but for it. In almost every such act, we trade life for lives and choose less worse over worst of all. So it’s no surprise that an ATF operation like “Fast and Furious,” intended to trace gun trafficking by Mexican cartels winds up unable to account for 1000 handguns and that some of those unaccounted for weapons kills, in the hands of an unintended owner, one of our own, a US Border and Patrol agent, Brian Terry.

I’m fine with the accountability Congress is currently demanding of DOJ and Attorney General Eric Holder. But, lets not act like this wasn’t a reasonably anticipated consequence. What do you think perennially happens in the Mid East? We routinely get shot by our own weapons. Anytime you’re running in guns, whether for good or bad, some are going to walk.

In local news, one of our own, House Rep. Trey Gowdy is getting some of his first real national exposure arguing over the applicability of the executive privilege now asserted by Attorney General Holder. Gowdy was an attorney here in SC before the House. The applicability of the executive privilege, unfortunately, is precisely the sort of thing I can’t comment on for the nature of my work.

But, drug cartels?? All day e’r day, playa.

Performed by ipoet. Music produced by Jordan Santana.

Today’s song blog here:

Gunwalk

06/11/12

Bath A-Salts

My apologies.

In the words of the 18th Letter, the Mic Fiend, Rakim: “I shouldn’t have left you, without a dope beat to step to.”

A little busy. A little tired. Then overwhelmed. Then depressed about it. Then paralysis and avoidance. The painful steps of blong withdrawal.

Luckily, one thing or another has kept this present topic in the news. I meant to treat it well over a couple of weeks ago, now. I delayed but then some even more bizarre story would re-implicate it. I’d delay again and it would be resurrected, pun intended. And, then today the Sandusky trial began. Which brought fully together bath salts with bath assaults.

Nothing is funny about pedophilia or zombie attacks. So don’t let my double entendre sound in too much irreverence. But, what in the world is going on? One horrible face mauling by a man apparently high on bath salts. A second within a week’s time. And, then an international manhunt for a gay, Canadian porn star who allegedly uploaded a video of himself killing an acquaintance and then mailed the dismembered parts around Montreal. And, then a Maryland student admits to eating the heart and brain of his roommate??

I am famous for a ranked list of fears I maintain. The List was originally inspired, many years ago now, by my childhood fear of kidney stones, a fear justified by my dad having had some 13 of them and genetics being the number one predictor of their likelihood. The List has grown over time and has come to recognize the only logical conclusion: that the “simultaneous occurrence of any combination of your other fears” must necessarily be your greatest one (ie. having a kidney stone while being mauled to death by a pack of dogs.) The List does not take into account the probability of encountering any particular fear but only the magnitude of the sheer horror that will be produced in the likely or unlikely event that you do. So, while it is virtually impossible that a crazed chimpanzee might find me defenseless in my suburban SC neighborhood, the thought of him gnawing off my nose or genitalia, as has actually happened to others in the history of the world, is something nearly unspeakable and, therefore, justifies a place on The List. Without further ado:

1. The simultaneous occurrence of any combination of the next 6 fears
2. “The Prison Thing” “TPT” (the thing that sometimes happens to attractive, well-groomed, silver-haired men who happen to find themselves incarcerated in a maximum or even minimum security prison)
3. Being assaulted by a troop of chimpanzees in either the face or nether regions
4. Being assaulted by a lone chimpanzee in either the face or nether regions
5. Being mauled to death by a pack of dogs (this is to be distinguished from the more simple fear of just dogs or dog bites)
6. Being mauled to death by a single dog
7. Kidney stones

The List has not been made up or embellished for the purposes of this blong. I have numerous personal witnesses to it, who have been deeply scarred by my having explained and/or recounted it. The List has evolved over many years through a painstaking process of private visualization, whereby I subject my emotions to the thought of all kinds of horrible and imaginary tragedies — being buried alive in concrete, a Never Say Never marathon, agreeing with Skip Bayless. Longtime and careful listening fans will even recognize that I have previously included The List in not one, but two, rap songs.

The chimpanzee fears are the newest additions to The List and hot movers up it. Probably added sometime in the last 4 years. You might recall an elderly lady and her elderly friend being assaulted by a domesticated chimpanzee roided out on Zantac or something of the like. In one of the articles about the incident, there was the most clinical and passing reference made to another chimpanzee attack, sometime in the 90s, made on a man walking through his neighborhood. The sentence about the attack ended something like, “And, the chimp gnawed his genitalia and nose off.” The news story then went seamlessly back into the the account about the two old ladies. I was like, “What??? That’s it? You’re just going to casually drop a nose and genitalia gnawing reference and then bounce!?” Suffice it to say, this account has led to some of the most colorful conversations I have ever had. Maybe for another blong.

So, as you might imagine, when theipoetlaureate got wind of a zombie-like attack in which 75% of the face of a LIVE man was chewed off by another man, it was like the chimpanzee fear on P90X. Everything was in play with The List as I did some of my most serious cowardice-searching to date.

It’s pretty hard to understand someone like Sandusky, to the extent even a bit is true, or Dahmer or gnawing the human flesh off the face of a breathing man or eating your roomie’s brain or any other act of a sociopath. But, maybe the bath-salt zombie’s mom got as near as we can to it: “That wasn’t him, that was his body but it wasn’t his spirit.”

A kind of out of body experience. Oobe.

In our worst moments we are simultaneously our truest selves and ourselves not at all. This of course has everything to do with how you philosophically view human nature. I tend to view it, our nature that is, as divinely inspired but readily corruptible. So we can be magnificent and malevolent in mere minutes. We have all had the experience of sort of behaving against interest and outside of ourselves. In the words of a great theologin, “I do not understand what I do. For what I want to do, I do not do, but what I hate, I do.”

As, with everything, it’s a matter of degree. The “monsters” in our society are just a little more permanently and completely “out of body” than us. And, we’d do well to remember it.

As a side, the successful clothier and uniform manufacturer, Oobe, which services the Chik-fil-a national account, was founded and is headquartered right here in Greenville, SC.

Performed by ipoet. Music produced by dj clutch.

Today’s song blog here:

Oobe