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Within a very good post on the consequences of today’s SCOTUS ruling, Adam Serwer writes:

In the court battle over Obamacare, the government had argued that the individual mandate—the part of the health care law that requires Americans to purchase health insurance or pay a fine—was constitutional because the Commerce Clause gives Congress the authority to regulate interstate commerce. The government’s lawyers said that without the mandate, the health care law wouldn’t work, and because not having health insurance substantially affects the health insurance market (i.e., it affects interstate commerce), it was okay to fine people for not buying insurance. Conservatives argued that the mandate was not really regulating commerce, but forcing people to engage in it. They claimed the Commerce Clause allowed Congress to regulate “activity” but not “inactivity”—a distinction found nowhere in the Constitution itself.

The “activity/inactivity” distinction went from being a laughable attempt to try to distinguish this case from the previous Raich ruling to a serious argument adopted by 5 of the 9 Supreme Court justices. But despite the fact that this ruling has weakened the Federal government’s powers under the Commerce Clause, this distinction between Raich case and the ACA is still imaginary.

In the Raich decision, a person growing a marijuana plant was automatically participating in interstate commerce, regardless of his/her “activity”. If a person grew a plant, harvested it, and consumed it entirely himself/herself, it was still considered part of interstate commerce. Their activity or inactivity with respect to any actual marketplace was never the issue, but the commodity itself. With health care, the same situation existed, except that it didn’t just cover a subset of the population. Every single person in America is potentially part of that market on any day – even if they desired not to be – and therefore most people looked at the decision in Raich and concluded that it was well with the Commerce Clause to require folks to either insure themselves or pay a penalty.

There are certainly a number of conservatives who’ve been consistent in their views on the Commerce Clause, and to some extent I’ve been swayed by their arguments. But the intellectual inconsistency of Scalia and Kennedy (and of course Rob McKenna) for supporting Raich, but fighting to have the ACA overturned is appalling.

Later in the post, Serwer also notes that the majority ruling that the mandate is a constitutional tax on individuals potentially leads to the infamous “broccoli scenario” being carried out through a tax. What’s stopping the Federal Government from imposing a tax penalty over any number of consumer choices? Serwer argues that this is a reason for liberals to breathe easier about progressives’ ability to craft good regulations in the marketplace, but I’m somewhat skeptical.

The aspect of this that concerns me the most is the shift from allowing for the regulation of systems and institutions to the regulation of individual behavior. Regulating individual actions is generally an ineffective way to regulate any system. Climate change is a great example. Trying to solve our climate crisis merely by using taxes to influence individual consumer choices isn’t going to have anywhere near the impact of being able to impose strong regulations on the industries that contribute to high CO2 levels in the atmosphere. We’re not anywhere near the point where this is a real legislation-inhibiting concern, but the current court seems inclined to push us in that direction.

I don’t want to be too negative about all this. I was relieved that the ACA was allowed to stand this morning. It certainly wasn’t perfect legislation, but it was a small first step towards moving us towards more cost effective health care in this country. And hell, this decision today – especially with its modified view of the Commerce Clause – might be reversed again the next time to court sees it. Especially if it involves allowing the feds to go after some potheads.

For all of the discussion of how the new arena in SoDo would hurt traffic, you’d think this would be a bigger deal.

Coal trains can easily be 8,000 feet long, which means that it takes more than 6 minutes to clear a street crossing when traveling at 15 mph, a pretty typical speed in an urban area. Then factor in 30 seconds of street closure time for warning signals to sound or crossing arms to stop traffic, plus 30 seconds to re-start traffic after the train has cleared the intersection. Add it all up and you get this: Bellingham’s new loaded coal trains would completely cut off street intersections by somewhere between 105 minutes and 125 minutes of every day.

I don’t want to be disingenuous here. I support more rail infrastructure at the port and oppose the coal trains for non-traffic reasons much more than this. Still, if the trains come, hopefully they come with more infrastructure to mitigate this.

8:58: I am listening to Mitt Romney right now…and he is shamelessly lying about the impact of the patient protection and affordable care act. I didn’t hear anything about “death panels” but the same old bullshit lines:

“Obamacare puts the government between you and your doctor”

“Higher deficits.”

“Causes you to lose the insurance you like”

“Or return to a time when you could chose the insurance you like,”

“Obamacare is a job killer”

…and others.

Yawn.

Most of his claims have been shown false by the fact checking web sites.

9:06: Gov. Gregoire is on KUOW now, pointing out how “going back to the status quo would bankrupt our businesses, our families, and the state.”

9:09: Goldy takes the SCOTUS decision as a sign that Rob McKenna is a crappy lawyer:

Remember, McKenna was instrumental in initiating the lawsuit that forced today’s ruling, and spoke confidently on the campaign trial that he and his fellow attorneys general would prevail. He was wrong.

“Our precedent demonstrates that Congress had the power to impose the exaction in Section 5000A under the taxing power, and that Section 5000A need not be read to do more than impose a tax. This is sufficient to sustain it.”

Even though an overwhelming majority of constitutional scholars had weighed in that the mandate appeared to be constitutional, perhaps it is unfair to use this ruling to impugn McKenna’s legal acumen. Perhaps McKenna merely made the political calculation that the conservative majority on the court would ultimately prove be just as politically unprincipled as he is, and thus toss out the ACA regardless of clearly established precedent?

Perhaps. Not that that take is any more flattering.

The point is that under McKenna’s leadership the attorney general’s office has an established track record of championing losing, politically motivated cases and opinions.

9:15: Obama is on now. He goes through a list of the major advantages.

“Young Americans can stay on their parents insurance”

“Seniors receive discounts on prescriptions”

“No insurance? Then you will be insured starting in 2014.”

“No discrimination by preexisting conditions”

“People who can afford insurance should take the responsibility of buying it”

“I didn’t do this because I believe it is good politics. I did it because it is good for America.”

Not much new there. Essentially, Obama and Romney stuck to their previous points.

9:23: The gods of politics are to be worshiped and thanked for giving us a Republican nominee who, while a Governor, passed the model of universal health care that he must now fight against. I think this angle has been downplayed to date because of the uncertainty of the SCOTUS decision. Now, it’s ripe….

9:26: The real “Death Panel” would have been SCOTUS if they had struck down Obamacare. Hopefully, today’s ruling will help us claw our way back to the top of the list for health statistics….

9:28: Rep. Jim McDermott is on KUOW. He is happy.

“John Roberts…is fantastic” (Okay…maybe I’ve changed the meaning there.)

“People have been trying to do this since 1935…huge victory”

“Rob McKenna has egg on his face.”

9:31: Republicans have been chanting “overreach, overreach, overreach” like they are in a fucking trance. What the SCOTUS decision shows us is that they were engaged in a collective reach around!

9:34: Steve Scher on KUOW is now interviewing some wingnut (part of the lawsuit) who claims that today’s decision means Americans have “lost their freedom.” Sure…they have lost the freedom to go bankrupt from medical costs. Freedom from watching the most disadvantaged Americans suffer for want of health care. Freedom from the constant worry about how to get health insurance….

9:40: Okay…finally back to Goldy’s point above. He is right that McKenna was shown by the SCOTUS decision to be a lousy lawyer. McDermott is right, “Rob McKenna has egg on his face.” But I stand by my statement that McKenna is a winner by this decision. A little egg on his face is nothing compared to dealing with the actual consequences to real voters had the lawsuit succeeded.

9:49: Paul Constant posts this hilarious CNN moment:

10:20: Josh Marshall:

I have some thoughts on the politics of this — mainly because the politics is what I have some expertise to speak about. But that will be my next post. Before I do that I wanted to state very clearly that the politics of the decision pales before its substance, a fact that I suspect will get little attention today. This decision will have a massive effect on the lives of literally millions of people. Mitt Romney may have joked yesterday that the White House was “not sleeping real well” last night. But a lot of people tonight and in the future will sleep a lot better for this result. Young people, people with pre-existing conditions and mainly people who through the chaos of the health care market simply find themselves with no coverage.

That’s the big deal.

10:33: Apparently, FAUX News joined CNN in jumping the gun. They heard or read that the court didn’t find the Commerce Clause argument convincing and assumed the whole thing would be struck down. TPM does a medley:

10:40: Obama speaks:

10:45: Gov. Christine Gregoire’s statement on today’s SCOTUS ruling. (Livestreaming for now.) Gregoire eviscerates Rob McKenna!

10:56: Rob McKenna releases a say-nothing statement on today’s ruling. As one of two people who initiated the lawsuit, you’d think he’d have a hell of a lot more to say than that. I suspect he is just relieved that the whole potential nightmare for his gubernatorial campaign is over.

11:06: Justice Ginsburg’s opinion quoted from Gov. Christine Gregoire’s brief,submitted in reaction to McKenna joining the lawsuit. “We tried healthcare without a mandate and it [became]…a death spiral.”

11:09: I, for one, look forward to the forthcoming law with its tax incentive to eat broccoli.

11:14: Seattle PI’s Joel Connelly summarizes some of the PPACA’s benefits for Washingtonians:

About 52,000 young people have been able to stay on their parents’ health insurance programs until the age of 26.

The law has provided that families seeking insurance cannot be denied coverage because of a child’s pre-existing condition. Nor can insurers place lifetime limits on spending for an individual’s health care.

More than 100,000 small businesses in Washington are now eligible for a federal small business tax credit designed to make it easier and more economical to provide employees with health care.

“I look forward to the day not long from now when more than 800,000 people in our state will be able to use our Health Benefit Exchange to get health insurance they need but currently must go without,” said Gov. Christine Gregoire.

The Supreme Court has largely upheld the Patient Protection and Affordable Care Act (PPACA).

My limited understanding from media coverage is that the ruling on the “mandate” is narrow. The crux of the argument: The U.S. government can tax. Period. Since the mandate is a tax incentive, it’s not outside the constitutional scope for congress to enact such a tax incentive for people to purchase insurance.

Two quick points. First, we see once again, that Democrats lost the battle of words by the fact that the tax incentive provision became known as a “mandate.”

The fact is, it isn’t a mandate. It is an incentive. You are not mandated to purchase insurance. Rather, you pay a tax if you can afford but don’t purchase insurance. Or, put another way, you avoid paying a tax if you have insurance.

The word “mandate” is one of those wingnut terms of art (like “death tax”) that is factually inaccurate, but is fantastic for stoking emotions. It makes for good hate-stoking.

The second point. Of the thousand and thousands of words I’ve read on the constitutionality/unconstitutionality of the PPACA after the lawsuits were announced, one of the best was written by none other than Goldy:

See, the recently passed health care reform legislation does not require that all U.S. citizens purchase insurance, it merely provides a tax incentive to those of us who do. If you are not covered by an employer, and if you have not purchased your own individual policy, and if your income is above certain levels, and if you don’t hail from a state that has opted out of this mandate by implementing its own qualified health insurance system, you will be required to pay an additional federal tax, starting at the greater of $95 or 1% of income in 2014, and rising to $695 or 2.5% of income in 2016, up to a cap of the national average premium on a bronze plan. Both the minimum tax and the cap will increase by the annual cost of living adjustment.

Now, some might argue that this is still a mandate to engage in some sort of economic activity because it targets a tax at those who refuse, but one could easily flip this perception around. What it really is, is a flat, 2.5% federal income tax — much along the lines of what is already imposed to fund Social Security and Medicare — but for which the law provides a substantial exemption to those who choose to purchase private health insurance.

And don’t attempt to bog down this discussion in jibberish over whether this is a “tax” or a “fee” or a “penalty” or a “mandate” or whatever. The courts have long been consistent that lawmakers need not jump through such semantic hoops; if a law is constitutional worded one way, it is constitutional worded another, as long as the practical application is the same. And clearly, our tax laws are filled with provisions intend to encourage some economic activities and discourage others.

Along these lines, a better analogy than Troll’s theoretical handgun mandate would be our current home mortgage interest deduction. The federal government does not actually mandate that we all take out big mortgages to buy homes and condos, but it grants huge tax advantages to those who do, essentially penalizing renters. Think about it: with the extra tax revenue from eliminating the home mortgage interest deduction, the federal government could lower the base tax rate on all of us.

So, if the health insurance mandate-cum-exemption is unconstitutional based on the contention that it compels individuals to engage in an economic activity, then so too would be the home mortgage interest deduction, and any number of other federal tax incentives. And I sincerely doubt that McKenna would choose to join a lawsuit seeking to deny Washington homeowners this very popular deduction.

If the “mandate” is unconstitutional, so is the mortgage interest deduction. After all, it “mandates” that you take out a mortgage loan, or pay a tax penalty.

Finally…winners and losers: First, this secures Obama’s legacy. Even though the PPACA was only one of many solid accomplishments of Obama’s first two years, this one is more defining and will positively, directly touch the lives of more Americans. (Ironically, candidate Obama opposed a “mandate” while he was campaigning against Clinton in 2008.) Second, this takes away Romney’s arguments that “Obama didn’t do anything” when he had a Democratic House and Senate.

Likewise, Democrats win by getting through another great social program. This is, after all, the real reason why Republicans oppose this largely Republican-designed program.

On the other hand, this is a win for conservatives, in that they will certainly be motivated by hatred, anger, fear of “socialism” largely out of the misconception that the government is now “forcing them to do something.”

The other big winner is Rob McKenna, who by losing the lawsuit he claims to have co-founded, dodges a huge bullet. Who wants the vote for the prick that kicked you off your parent’s insurance, or the asshole that quadrupled your insurance costs because of a pre-existing condition?

The final big winner is America—we have now joined most of the rest of the civilized world by making health care available to the poorest of our citizens. A reversal would have been a tragedy for untold millions of Americans. The PPACA is far from perfect, but it’s almost certainly better than what we had.

– The individual mandate is Constitutional.

– I doubt it, but maybe this ruling will tamp down on other nonsense from the GOP.

– Of Flooding and Fetus-Americans

– Coyote hunter in West Seattle

– Religious institutions are not the only entities that can or should work towards providing for basic human needs, but now that the consent decree has expired, private entities do not have a way to host an encampment.

– I was surprised to learn that there hasn’t been a Nordstrom in New York until now.

– Masters of the Universe-ity

WordPress (or more likely user error) seems to have eaten my last post, so here again is the link to info about the rallies after tomorrow’s Supreme Court decisions.

Attend a rapid response event near you!

This Thursday, the US Supreme Court is expected to rule on Rob McKenna’s partisan challenge to the Affordable Care Act – President Obama’s health care reform law. It’s perhaps the most anticipated Supreme Court ruling in our nation’s history.

Regardless of the outcome, we’ll be ready. Please RSVP on Washington Community Action Network’s web site.

Thursday, June 28 outside the Attorney General’s offices around the state

I’m not a huge college football fan, but I was glad that there will be a 4 team playoff in college football starting in 2014. It seems like the worthiness of the third and fourth choices is often indistinguishable from the second team that actually gets to play for the championship. I imagine there will still be controversies about who gets to play in this tournament. But a debate about who is the number 4 team is very different from a debate about who is the number 2 team.

I’m still reading through the Arizona immigration Supreme Court decision, but I expect that come Thursday, all of the Supreme Court discussion discussion will be about health care. So I’d like to get to the logical conclusion of Scalia’s dissent before that happens. It seems to me that if this is true, then it cuts both ways.

In his point-by-point defense of the Arizona legislation, the avowed law-and-order conservative surmised that the Obama administration “desperately wants to avoid upsetting foreign powers.” He accused federal officials of “willful blindness or deliberate inattention” to the presence of illegal immigrants in Arizona.

“[T]o say, as the Court does, that Arizona contradicts federal law by enforcing applications of the Immigration Act that the President declines to enforce boggles the mind,” Scalia wrote. “If securing its territory in this fashion is not within the power of Arizona, we should cease referring to it as a sovereign State.”

If a state has the right to, essentially do anything to keep anyone out, doesn’t another state have the right to keep anyone in? Or to make anyone a citizen? It seems to me if states can’t decide who is a citizen of the United States we can’t call them sovereign states. I guess that’s why we don’t.

So it seems to me if Scalia’s positions ever become the majority on the court, Washington should become a sanctuary state. We should let anyone become a citizen as long as they aren’t here to do us harm.

Please join us tonight for an evening of politics and conversation over a pint at the Seattle Chapter of Drinking liberally. Tonight there are elections in Colorado, New York, Oklahoma and Utah, but we’ll likely ignore them to talk about other issues: the Governor and AG races in Washington, as well as recent and forthcoming Supreme Court decisions.

We meet every Tuesday at the Montlake Ale House, 2307 24th Avenue E. Starting time is 8:00pm. Some people show up earlier for Dinner.

Can’t make it to Seattle tonight? Check out one of the other DL meetings over the next week. Tonight there are also meetings of the Tri-Cities and Bellingham chapters. The Burien chapter meets on Wednesday, and the Woodinville chapter meets on Thursday. Then on Monday, the Yakima, South Bellevue and Olympia chapters meet.

With 227 chapters of Living Liberally, including eleven in Washington state and four more in Oregon, chances are excellent there’s a chapter near you.

– This chart of Congressional wealth is one of those charts that shocks you with things you could have guessed.

– The Seattle Great Wheel looks like it will be pretty neat.

– This idea for filibuster reform is a bit overly complex. But in general it’s solid.

– WTF, SPD?

– Clearly this is not Romney’s party – yet, anyway. Other Republicans’ willingness to buck and rebuke him signals not bracing political independence – party leaders haven’t had the guts to stand up to the birthers in their ranks – but insecurity about their November prospects. A lot of Republicans seem to have their eye on November – of 2016.

– Spoke and Food

I like Darcy Burner, but unlike a lot of bloggers, I’m willing to wait and see who gets through the primary. I don’t live in the district so I don’t have to choose. And a lot of the candidates have done good things. Still, I’m encouraged by things like this in my email box.

I’ve heard Republicans lie. I’ve heard Fox News manipulate the truth. I’ve heard plenty of outrageous things. John Koster proved that through either ignorance or willful rejection of reality, Republicans can still shock me.

In an interview that will air on Sunday on King5, a question was asked about Congress addressing marriage equality. I answered that not only should we repeal DOMA, but we should go further and provide all married couples with all of the Federal benefits of marriage.

I was stunned by what followed.

John Koster jumped right in with an outrageous statement.

“…there is no Federal Defense of Marriage Act…”

Yes, of course on one level, it’s another fundraising appeal. Still I’m glad the heat is directed to Koster, and not the other Democrats.

Now look, I love primaries and I have no problem with them getting a bit rough and tumble (there are important issues at play). But these are the sort of things I love most about primaries. Even if Rudderman wins, all of Darcy Burner’s supporters (who bother to open their email, and read it) will have seen this. And if any media (beyond HA) mention it, even better.

– Decline to sign the charter schools initiative.

– Vincent Chin would have been 57 today. But the Michigan man never made it out of his 20s. Instead, 30 years ago this week Chin was brutally murdered when he was bludgeoned with a baseball bat wielded by two white, jobless auto workers who thought Chin, a Chinese-American man, was Japanese.

– Lou Dobbs is a horrible person [h/t].

– If evangelicalism were primarily a theological tradition, then British and American evangelicals would be more similar than they are. But American evangelicalism has ceased to be mainly a theological category. It’s now mainly a political subculture, a tribe.

– Pennsylvania State University, as an institution, decided that protecting Joe Paterno’s reputation and winning a few more football games was more important than stopping the ongoing rape of young boys.

– Give me a rambling rover.

Last week’s contest was won by wes.in.wa. It was the Whispering Firs Golf Course on JBLM.

This week’s contest is related to something in the news from June, good luck!

Psalm 82:1
When all of the other gods have come together, the Lord God judges them

Discuss.