04/6/15

People You Prefer

It’s amazing how infrequently the news cites or links to original source material. The hardest part of posting today was finding the dang statutory language.

In relevant part the Indiana Religious Freedom Restoration Act (RFRA) stipulates that

a governmental entity may not substantially burden a person’s exercise of religion . . .[unless it] (1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest.

Guess what? This is literally already the law.

Indiana didn’t make these words up. And they aren’t words without meaning. “Substantially burden” and “compelling governmental interest” and “least restrictive means” are legal terms of art.

It’s called strict scrutiny. Strict scrutiny is the test courts must apply to any governmental action (law) that attempts to regulate the free exercise of religion. It’s literally already what is required by the United States Supreme Court. See Wisconsin v. Yoder, 406 U.S. 205 (1972); Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 546 (1993).

That’s why the federal RFRA analog to the Indiana bill has been deemed constitutional. It’s just not applicable to the states and that is why twenty some states have passed their own version, including Indiana.

But, in the wake of protest over it, the Indiana legislature has agreed to compromise language, which specifies that the new religious freedom law cannot be used as a legal defense to discriminate against patrons based on their sexual orientation or gender identity.

Well what about race or national origin? Or pregnancy or sex? Can Indiana’s RFRA justify disparate treatment on account of those characteristics? Well those immutable qualities are already protected from discrimination either by constitutional interpretation or specific federal statute. It’s not necessary to accuse Indiana’s RFRA of enabling discrimination on those grounds because it is understood already that it can’t. But, no such comparable protection yet exists for sexual orientation and gender identity, thus the necessary specificity.

So, here’s the amazing result. The public pressure on Indiana’s RFRA has transformed a law that was simply an echo of the legal status quo into literally an affirmative protection for sexual orientation and gender identity that did not previously exist (at least expressly).

I think in wrestling that’s called a reversal. And pin.

Regardless of the legal merits and effects, the cultural ones continue to be sort of ridiculous. On both sides. The controversy over RFRA sure involves a whole lot of can’t. You can’t eat here. You can’t tell me I can’t eat here.

I know there is some mutually-exclusiveness between the positions, but I sure would just prefer that both can. The religiously orthodox or shortsighted bigots can exercise discretion over their business interests and the LGBTQIA community can take their business and prodigious wealth just about anywhere else. I don’t believe this is going to result in significant exclusion.

When the equal access battle was fought for racial minorities in this country 50 years ago, there was no cultural capital on that side. To have waited on a cultural tide or the greed of capitalism to erode the segregation wall would have been a long, tortured wait.

It’s not the same cultural or economic ecosystem that the LGBTQIA community faces. First, our economy is so pluralistic, for every one fundamentalist burrito spot that denies you, there is an organic burrito, gay burrito, sports burrito, actually mexican burrito, or anti-burrito burrito restaurant to direct your appetite and dollars. Second, the momentum is now all on the LGBTQIA community’s side. The people who would deny service on these grounds are officially outliers. That’s not a value judgment; it’s just true. As a business person you’re somewhere along the following spectrum: (1) wildly, enthusiastically Andy Dick pro-gay; (2) gay friendly; (3) neutral; (4) personally uncomfortable but professionally ambivalent; (5) personally and professionally intrepid; or (6) passionately, comfortably Chik-Fil-A against-gay. (That’s not fully fair to CFA; I don’t even know a public enough name for this camp; which is the whole point.) I just don’t think the number and quality of the businesses desiring to publicly be (6) can be that significant. It’s just generally not very cool anymore or good for business. That’s not to say there isn’t financial opportunity in bigotry; there is. There’s just a whole lot more in non-bigotry.

And, speaking of the hipness of the relative positions, it has officially flipped. It wasn’t sexy to be an abolitionist or a non-segregationist. It definitely wasn’t cool to stand beside AIDS victims in the Eighties. But, as soon as it’s cool to be for a particular civil right, you’re on the wrong side of the issue. That’s the whole point. The community being denied the right is, by definition, marginalized not popularized. If you actually gain cultural cache among the masses by being so outspoken on a topic, you’re not a hero or martyr; you’re bandwagon. So no one should be patting themselves on the back for the most obvious possible observation that deep proponents of the RFRA are probably and mostly bigots on this topic. But, if you really count yourself a civil libertarian, the fight is now officially on the other side. People are entitled to be wrong. And, live wrong lives in furtherance. Let’s please not forget that.

I wanted to rank my favorite Easter candy just because I like ranking things. Growing up, I spent most of my Easter mornings trying to brandish various candies to my father but blinded by the Damascus Road movie camera flash. It looks like interrogation footage. Seriously.

5. Jelly beans. And, not just Jelly Belly snobbery.
4. Giant bunnies. Anything oversized at seven years old gets top 5 billing.
3. Whoppers Robin Eggs. Because someone still has to stand up for malt.
2. Mini Cadbury Cream Eggs. Am I the only one who gags trying to eat the original?

aaaaaaand

1. Grayson Allen. A delicious Easter candy too??! What can’t this kid do?

What are the chances that the vintage Paas image I chose for today would advertise “Gay Calicos”? 98. 100%?? Seriously. Total happenstance.

paas

Written and performed by sintax.the.terrific. Music produced by Dalama Jones.

Today’s blong here:

Resurrection

03/5/15

Free Running

As the trial of Dzhokhar Tsarnaev begins, I thought I’d recycle my Boston Marathon blong.

I’ll plagiarize myself from two years ago. I can’t say it any differently:

If you’ve ever been to Boston you’ve probably been forced to walk, likely by a mom or wife, some portion of the “Freedom Trail” against your will. You have to wonder why one must abandon so much self determination to walk a trail named “freedom” but, anyway. The Freedom Trail is, of course, a walking tour of Boston’s historic sites, where I’m proud to say I had a pair of Stan Smith’s re-cobbled only a few years ago. I also had a bracelet smithed out of a soup spoon.

Liberty is a type of collusion. An agreement among everyone to respect the rule of law in service of freedom. It’s completely voluntary.

Collusions, however, are easily broken. In fact, there is extraordinarily high incentive to do so. Our susceptibility to violence, therefore, is evidence of how well and complete the collusion of our liberty is working. We’re easy pickings. When an assailant from within or without violates the contract — the agreement not to fall into anarchy — they exact from us a cost. A toll for being so free, so open, so liberated. Our martyrs, whether at a marathon or in an elementary school or on a skyscraper, are a kind of penance paid to democracy and inalienable rights. Like a soldier or revolutionary, when we are murdered exercising our freedoms, even ones as routine as a road race, it is literally a kind of patriotic act. Every mundane act of our lives is a declaration that we would be free in spite of the ongoing danger to do so.

Pronation. It’s not just the roll of your foot when you run. It’s what we are when we run. Pro-Nation.

And, they’ll run again every year. Regardless the verdict. A marathon and a freedom trail.

boston-marathon-map

Performed by sintax.the.terrific. Music produced by Sir Chamberlain.

Today’s blong here:

Pronation

09/19/13

PTA

Adam Carolla’s exhausting, howitzer-style commentary falls into one of three categories:

1. Wildly offensive, profane, vulgar, mysoginistic, borderline racist;

2. Non-lude/non-bigoted but still wrong; and

3. Pure-cane genius.

I was never into what I surmised about his type of comedy. The Man Show. Crank Yankers. Love Line.

More recently, Carolla has become a kind of political lightening rod and Hollywood pariah for his conservative politics, which I viewed dubiously, at best. I was confused why the inventor of “Girls on Trampolines,” had become such a darling of the socially conservative FOX News audience.

Of course, if you’re under about 35 you literally probably have never even heard of him. He has become culturally marginalized, except to his still quite large and insanely devoted fan base. Which he would rightly say is no kind of marginalization at all.

What was lost on me, and probably anyone else who had only viewed him through the crass, soundbite lens of these shows, is his world-class erudition, inexhaustible memory, impossibly fast improvisational wit, AND, believe it or not, deeply held moral sensibilities. Or maybe it’s just Aspergers. Regardless, the dude is crazy, crazy smart. Even when I don’t agree with him, which is probably well in excess of 60% of the time, I’m almost always impressed. And, laughing super hard.

But, the strangest, most stunning part of my experience with Carolla is inspiration. He has a LOT of opinions about behavior, responsibility, interpersonal etiquette, and human welfare. None of which he seems to personally practice, but who knew? Of course, like many modern conservatives, the value Carolla places on personal responsibility and self-reliance is too severe, taken to its logical and blanketed policy extremes. But, on an individual level, and for me specifically, I’ve been genuinely inspired by it.

Inspired to work harder.

To be a better dad and husband.

To expect more of myself.

To desire challenge and difficulty over leisure.

To laugh at third grade bathroom humor.

Things I already value and which are reinforced by other sources in my life but rarely so cleverly as Carolla’s unexpected take.

Weird, huh? He’s sort of ambushed my life with motivation.

And, potty talk.

As it turns out, Adam Carolla and my favorite sports commentator, Bill Simmons, The Sports Guy, are fast friends and through the years Carolla has made appearances on Simmons’ critically acclaimed podcast, The BS Report, which is how I came to be reintroduced to him, in the first place. But, the real king of podcasting is actually Carolla, himself, who now has the number one downloaded podcast in the world after his decision to leave radio four or five years ago. Which may be comparable to declaring yourself World Champion in Electric Football or War Hammer. Anyway, for his hilarious appearances on the BS Report, I found myself tempted to listen to the podcast of a man, I rejected as gratuitously profane (he is) and with whom I assumed I shared no intersecting cross-street (but, I apparently do).

Oh, and one other thing . . .

You should NEVER, EVER, EVER listen to him.

The aforementioned lavish praise should not be construed as any endorsement or recommendation of mine.
(Which, I know, is sort of like saying to your kids, “Whatever you do, don’t play with this bowie knife.”)

I say all of this by way of simple qualification as to why I am about to reference a podcast I wouldn’t recommend to a porn star fearing her lost innocence.

So, anyway, on today’s podcast, Carolla was discussing an open letter, written by the CEO of Starbucks, directed to certain legally armed and licensed gun owners recently patronizing his stores. Apparently, pro-gun advocates have been enjoying a cake pop, ready to pop off so to speak, as a kind of protest against anti-gun sentiment. Starbucks has kindly asked them to stop.

Oh, and, to pick up their iced mocha, which is ready.

Carolla off-handedly quipped that the presence of firearm carrying patrons would at least disincentivize madmen, bent on public massacre, from selecting Starbucks as a future target for the presence of armed patrons. This is a common motif on the pro-gun side: If citizens are armed, bad guys will either stop or be neutralized. Like in Wild West times, I guess. The conversation then turned to the Navy Yard shooting. Without noticing the irony, there was no acknowledgment that the Navy Yard shooter was not only not deterred by, but actually successful in murdering 12 at, a location which literally specializes in armed security – a Navy Yard.

And, this made me think about the argument for guns in schools. Or, what I’ve decided to call, the PTA (Pistol/Teachers Association). If the security at a Navy Yard fails to either deter or foil, before the death of 12, a gunman bent on violence, why would a pistol in the palm of Miss Pomegranate? (That’s some cheap alliteration, while we’re on the subject of education.)

I don’t think too many are taking seriously the suggestion that teachers carry guns. But, the bigger policy debate remains. Are we really safer with more guns in the public domain or less?

If the tragedy of the most recent shooting at the Navy Yard is any indication, however, don’t get too comfortable sipping your Dirty Chai. No matter how many baristas are strapped.

Written and performed by theipoetlaureate. Music produced Fab da Eclectic.

Today’s blong here:

Star Buck-Bucks!

07/25/13

Shameful

The conduct of China’s Princeling, Bo Xilai, you ask?
(I like to imagine his last name is pronounced like the prodigious rapper of my youth, Chi Ali.)

Nope.

That he was just recently indicted for bribery, corruption, and abuse of power?

Nope.

How about that I already have a Princelings song ready to roll?

Uh huh.

At some point it ceases to be cute that you have a rap about everything and becomes just sort of uncomfortable. “Oh, you have a Joan Rivers rhyme, huh? Yeah, well, we should never, ever talk again. And, I’d like for you stop referring to me as ‘Mom’ or ‘relative’ or ‘woman you know’ in public.”

I previously covered the questionable culture of power surrounding the Princelings here.

Written and performed by theipoetlaureate. Music produced Sundance.

Today’s retread blong here:

Crown Prince Party

01/16/13

It Only Takes One

The President’s gun violence plan seems pretty reasonable. It doesn’t strike me as executive power too far. Without boring you the history, executive orders are constitutional, especially where they are made within the context of some explicit or implicit congressional authorization, see Dames & Moore v. Regan. Here, the President has tweaked the efficacy of certain already existing gun controls, especially as they relate to sharing applicant and background check information. While the plan makes an appeal to Congress concerning a ban on assault rifles, the orders themselves do not purport to accomplish any such thing. The plan provides for some additional gun violence research, and it appeals to more responsible gun ownership. It also appropriately emphasizes the role of mental health in this discussion focused mostly on weapons. But, precisely because this set of executive orders seems largely uncontroversial they are at the same time probably more gesture than change. And, that’s okay.

Of course, the NRA would, in a brand new ad, call the President a hypocrite because his daughters’ private school enjoys the security of armed guards.

I doubt they’ll recant even as his plan provides for:

School resource officers [who] are specially trained police officers that work in schools. When equipped with proper training and supported by evidence-based school discipline policies, they can deter crime with their presence and advance community policing objectives.

It would make too much sense for the two sides of this conversation, equally vested in growing the rate of non-deaths and un-kills, to see common ground where they are standing on it.

People would point to other first-world successes in violence free society. Europe, Canada, that awesome jungle moon in Avatar.

But, America’s just different. We have a deep gun identity.

We conquered with a gun.

We were colonially liberated with a gun.

Our union endured by the gun.

Cowboys.

Annie Oakley.

John Wayne.

Rambo.

Gangsters.

Gang bangers.

Yosemite Sam.

Separating us from our guns is more than an exchange of rationale arguments no matter how rationale they may be. It will take a weening not a divesting.

In today’s blong, I would simply add song to my prior point that the collusion of a gun-free society means we will always be susceptible to the threat of just one. But, I think I would rather live with that risk in mind than a kind of Home Room Saloon.

Performed by ipoetlaureate. Music produced by Dave Santos.

Today’s blong here:

High Noon

09/23/12

Don’t Drop the Soap

There is a lot of hidden tragedy. So to get too dogmatic about one seems a high horse amongst Clydesdales. One in a crowd.

But prison rape to me has long been infuriating. (Not where you thought I was headed?) It’s just totally unacceptable, with any regularity, in a civilized criminal justice system.

It’s like fighting in hockey. Punching your opponent in the face isn’t “part of the game.” It’s called battery.

Rape isn’t “part of jail.” It’s torture.

And notwithstanding some alleged and unofficial policy of the US Government for a better part of the last decade concerning enemy combatants, torture remains illegal.

And yet, in this particular form it continues as an incident of serious prison life that we seem fine to ignore.

Just this week horrific videotape surfaced concerning the unspeakable mistreatment of prisoners in a Georgia detention center. (Georgia as in the East European country, not the United State, although that tape is probably coming soon — for the Georgia Bulldog football team, certainly, if not the State. Got ’em.) It apparently includes footage of a man being sodomized with a broom. But prison rape and humiliation aren’t unique to faraway and emerging countries or some exception to the rule. It happens miles from your home. You just don’t have to give it much thought.

In some ways, the statistical occurrence of prison rape is probably inflated for its coverage in pop culture. But, it just has never struck me as something to be shrugged at over an incidence rate.

“Eh. My stogy in the bed only burned down the house once.”

And even where most prison assault is inmate on inmate, as we turn collectively from the truth about it or, worse, make it a part of our culture of irreverence in comedy or cinema, we abet.

Prisoners have recourse and access to courts. But, the constitutional burden to recover for injury suffered while you are incarcerated is fairly high. Prison officials typically cannot be liable in simple negligence. The standard applied usually requires some showing of deliberate indifference, in safety or medical attention or some other constitutionally significant interest, before liability will lie against them.

But even more than the fairly stacked deck of substantive law against them, there exist innumerable systemic obstacles to the inmate’s ability to fight for their own protection. No counsel. Uneducated in the law. Illiteracy. Limited access to legal materials. Bad handwriting. That whole toilet in the cell thing. Even their own apparent and, often, actual, untrustworthiness makes their claims hard to adjudicate fairly.

So the chances of them mounting any suit against a prison official, for deliberately ignoring their welfare in this respect, is dubious.

Although not similarly situated, it seems right that we ought to one day view this inhumane incident of prison life with the same horror that we now would the living conditions and arcane practices of orphanages and mental hospitals in the early and middle parts of the last century.

So, if you’ve been waiting for a prison rape blong, you’re welcome.

By the way, Patriots v. Ravens?? Hands down the worst officiated game ever. To the very last and deciding play.

Okay. Here we go. Prison rape time.

Performed by theipoetlaureate. Music produced by Dave Santos.

Today’s song blog here:

How Come

08/9/12

Casinos and Daycares

So I have a friend who has a friend who does sweepstakes as a hobby. I know. Sounds like doing bath salts as a dessert. Or doing your nails as massage. Wait. People actually do that. Anyway, he raked. Like a serious family vacay every year. Hawaii not Dollywood. Sorry, Mom and Dad (they’re D-Wood GOLD VIP.) He had a garage and guest room full of prize. A dozen waffle irons. Four mopeds. A year’s supply of Mop ‘n Glow. Stacked to the ceiling, Ali Baba style. (I’m just guessing about the waffle irons; that would be pretty amazing though.)

So he set aside $30 every month of discretionary household money. Instead of golfing or fishing or a gym membership or coin collecting or LARPing, he would use the $30 to purchase postage for various nationwide and regional promotional giveaways. Apparently there is a publication that provides regular information about sweepstakes and their specifications. Region. Number of prizes. Advertising reach. So if a large number of prizes were being given away in a promotion of limited reach, you had a sense about the probability of winning.

Anyway, a new golf club company was giving away 30 bags of clubs. My friend told me that his friend said that this was pretty much a sweepstakes lead-pipe cinch. Sure enough, all three of us won. 10% of the bags. And, that’s why, to this day, you’ll never catch me driving anything other than a Slotline. “Slotline. Keep your slot right on the line.” ?? I’m not sure they actually have a slogan. And, the fact you’ve never heard of Slotline or that Tiger Woods wouldn’t scratch his backside with a Slotline or that his wife wouldn’t even use a Slotline to bust out a windshield to kill her husband is just a testimony to the good ol’ boy, backward mentality of golf. Unbelievable. Because, I’ve used a Slotline. And, trust me. It will put you into the same woods as your fancy sticks — for half the price.

So as it turns out, my friend’s friend was a pastor. Playing games of chance. The shame. “The Devil’s Ruse.” “Hell’s Gambit.” “The Card Shuffle Souffle.” “Roulette’s Underpants.” “The Snake Oil Milkshake.” “The Ol’ Getcha.” (I made all of those up.)

So in the civilizing process there are, over time, certain behaviors that are necessary to circumscribe. Not because they are inherently all bad themselves, but because they associate other lesser desired conduct and reduce, overall, civility. The “broken windows” criminological theory relies on this idea to explain the correlation between the disrepair of buildings and crime. Broken windows and general urban disorder have a tendency to signal to individuals that crime and anti-social behavior is permissible in that area. Simple building maintenance can transform the entire psychological view of the community.

A similar phenomenon happens in my bedroom. The more empty Diet Mountain Dew cans on my desk the more likely I am to disrobe right in the middle of the room.

In a related sense, cultural signals like tattoos or gambling or body piercing have been taboo, in large part, because they were associated with certain rebellious or immoral conduct or people and not because those aesthetic trappings or activities were so terribly horrible in themselves.

At some point, however, we become sufficiently entrenched in the habits of civility that we can revisit certain taboos without risk of resurrecting the associated and undesireable other conduct — like steer ropin’!

I can’t say it any better than Steve Pinker summarizes in his new book, that I can’t seem to stop quoting, Better Angels of our Nature:

The cliche about Generation X . . . was that they were media-savvy, ironic, postmodern. They could adopt poses, try on styles, and immerse themselves in seedy cultural genres without taking any of them too seriously. . . . the journalist David Brooks observed that many members of the middle class have become “bourgeois bohemians” who affect the look of people at the fringes of society while living a thoroughly conventional lifestyle.

And, this is true, right? It’s just as likely that your friend’s mom will have a tribal butterfly tattoo or nose ring today as the crook or harlot or whomever society might have historically associated with those items. And, that mom has a professional career, PTA membership, and a sustainability compost pile. (Wait is that a smoldering pile upon which we compost all things sustainable??!)

My wife swears that if she ever got one, she would go full tattoo sleeve on both arms. This is the same woman that is uncomfortable with light forehead perspiration at like a CiCi’s Pizza or, I don’t know, a gymnasium.

So when New Jersey thumbs its nose at federal gambling laws and the Professional and Amateur Sports Protection Act (“PASPA”), by passing its own legislation to legalize sports betting in its state, any outcry against the decision rings sort of parochial and schoolmarmish.

The NJ legislation has some legal obstacles. The kind of monopoly or dissimilar treatment to operate in sports gambling given, by PASPA, to Nevada, Delaware, Montana, and Oregon but not other states, has precedent in commerce clause jurisprudence. At the same time some of the policy arguments, rooted in these sort of dying social norms discussed above, for disallowing states to adopt sports betting across the board, are losing their efficacy. Especially in light of the mounting hypocrisy of sports leagues who knowingly benefit in all kinds of direct and indirect ways from it but would now resist, by filing a lawsuit, its expansion to other states, like NJ.

Gambling used to be the thing of gunslingers and gangsters and guys smoking cubans. But, there is legal sports betting in Las Vegas. They talk about game lines on ESPN (they host a “Behind the Bets” podcast for heaven’s sake). Your sister plays fantasy football and participates in a March Madness pool. Sports betting is no longer a marginalized activity of organized criminals (although, ironically, its very criminality allows such people to still flourish at it).

At this point, it’s simply another form of acceptable entertainment and leisure. We waste dollars on unserious, ephemeral things all the time. A movie. A sporting event. A vacation to Disney World. Computer technology. And, trust me, we can become addicted to it all. Gambling isn’t some vice unto its own in that regard (that’s not to say that games of chance cannot sometimes prey disproportionately on the poor but so can all variety of bad money management invited by such socio-economic circumstances).

The day is coming. Sports gambling will be legalized. Heavily regulated. Appropriately scrutinized. But, legal.

High rolling pastors and tattoo sleeved wives everywhere essentially guarantee it.

P.S. RG3, Bolt, & Howard???!!

Performed by ipoetlaureate. Music produced by Sundance.

Today’s song blog here:

Sharps and Squares

07/5/12

Not Guilty

A year ago today, Casey Anthony was so found. There was a good bit of outrage, as you might remember.

I don’t have much more to say beyond what I already have. This, of course, is not about the “correctness” or accuracy of the verdict but rather the condition of our own hearts, as we consider and even participate, as jurors, citizens, and public observers, in the administration of justice.

The blong from that entry, included again below, is a personal favorite and the song I performed at TEDx in March.

Performed by the ipoet. Music produced by dj clutch.

Today’s song blog here:

Nancy Ain't Grace

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.