Archive for June, 2012
30 Jun 2012

Roberts Read the Entrails

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Haruspex in action

Jonah Goldberg
heaps some well-deserved abuse on Chief Justice Roberts’ ruling.

Why not just cut open a goat and be done with it?

In ancient Rome, a special kind of priest called a haruspex would “read” the entrails of sheep to divine the will of the gods, the health of the growing season, or whatever else was weighing on the minds of men. Because animal guts don’t, in fact, impart that much information about, say, next year’s wheat harvest, the haruspices could pretty much make it up as they went along. The same went for the auspices, priests who studied the flight of birds and derived signs or omens called auguria (from which we get “auguries”). Ultimately, the haruspices and auspices made their decisions based upon the whims, vicissitudes, and demands of politics in one form or another. If the rulers were happy with the result, they didn’t much care what the guts actually said.

Fast-forward to chief haruspex John Roberts.

In the majority opinion written by Roberts, the Supreme Court held that the mandate to buy health insurance under the Affordable Care Act (Obamacare) is unconstitutional under the Commerce Clause and the Necessary and Proper Clause. But Roberts also found that it’s constitutional under Congress’s power to tax. It is on these grounds that Roberts upheld the constitutionality of Obamacare, siding with the four liberal justices of the bench.

The upshot is that Congress cannot use the Commerce Clause to force you to eat broccoli, but it can tax you into doing so. Huzzah for liberty!

To reach this decision, Roberts had to embrace a position denied by the White House, Congress, and vast swaths of the legal punditocracy: that the mandate is a tax for the purposes of constitutional consideration but not a tax according to the Anti-Injunction Act (which bars lawsuits against taxes until after they’re levied). Roberts’s effort, wrote Justice Antonin Scalia in dissent, “carries verbal wizardry too far, deep into the forbidden land of the sophists.”

Read the whole thing.

30 Jun 2012

DNA Study Shows All Modern Cattle Descend From 80 Wild Cattle

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Aurochs, Bos primigenius

Molecular Biology and Evolution

All cattle are descended from as few as 80 animals that were domesticated from wild ox in the Near East some 10,500 years ago, according to a new genetic study.

An international team of scientists from the CNRS and National Museum of Natural History in France, the University of Mainz in Germany, and UCL in the UK were able to conduct the study by first extracting DNA from the bones of domestic cattle excavated in Iranian archaeological sites. These sites date to not long after the invention of farming and are in the region where cattle were first domesticated.

The team examined how small differences in the DNA sequences of those ancient cattle, as well as cattle living today, could have arisen given different population histories. Using computer simulations they found that the DNA differences could only have arisen if a small number of animals, approximately 80, were domesticated from wild ox (aurochs).

The study is published in the current issue of the journal Molecular Biology and Evolution.

30 Jun 2012


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Hat tip to Norman Gregas.

29 Jun 2012

Caption This

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(click on picture for larger image)

Is that an immature ostrich? Is it looking over a peculiar fence or the headstones in an oriental graveyard? Who knows? I searched 2.1 Billion images on the web (using Tineye) and did not find a source.

It comes from Theo, of course.

29 Jun 2012

A Texan’s Solution

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29 Jun 2012

Roberts Opinion: Not So Much a Surrender As a Kind of Diabolical Strategy

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Paul Rahe makes a very interesting argument that John Roberts only appeared to cave. That, in reality, the Chief Justice was playing a diabolically clever long game strategy which involved permanently gutting Congressional illegitimate exploitation of the Commerce Clause while only apparently surrendering on Obamacare. Roberts, he contends, vastly enhanced the authority and immunity to liberal attacks of the Court, while dealing a deadly blow to the regulatory administrative state, and yet, hidden in the Tax Powers interpretation, astute commentators are able to identify aspects of the opinion boding very, very ill for Obamacare.

Most conservatives … suspect that John Roberts did not have the stomach to confront the President and his party. See, for example, Joel Pollak’s post Did Roberts Give in to Obama’s Bullying? Moreover, there is evidence that the opinion authored by Justice Scalia was originally a majority opinion. Roberts was forced to back off. His was an act of judicial cowardice. …

Or was it merely a recognition of the weakness of the judicial branch? … Roberts is very much concerned with sustaining the legitimacy and influence of the Court, and Obama and the Democrats have made it clear that they would regard a decision overturning Obamacare as a declaration of war.

There is, I am confident, more to it than this. In his opinion, the Chief Justice affirmed the principle asserted by Justices Kennedy, Alito, Scalia, and Thomas. He made it clear that the commerce clause does not give Congress authority over economic activity that we do not engage in. He also made it clear that the necessary and proper clause cannot be applied to achieve this end. In short, he joined these four Justices in setting a clear limit to the commerce clause, and he paved the way for future challenges to extensions of the regulatory state.

At the same time, he dodged the political firestorm, and nearly all of the liberals who have commented on the matter – a slow-thinking lot, in my opinion – have applauded what they take to be cowardice on his part as “judiciousness.” Glenn Reynolds at Instapundit was among the first to recognize that Roberts might be playing an elaborate game. … Reynolds pointed to one crucial fact: [Emphasis added] Senate rules do not allow a filibuster when the bill under consideration has to do with imposing or repealing a tax. If the Republicans take the Senate and the Presidency, they can now repeal the individual mandate. They will not need sixty votes.

[Another crucial detail] The version of Obamacare that became law originated in the Senate. The Constitution stipulates that all tax bills must originate in the House. [It is possible to] file another suit arguing that the mandate is unconstitutional because the Senate cannot originate tax bills.

28 Jun 2012

The Most Constitutionally Uninterested Man in the World


28 Jun 2012

Was Roberts Successfully Pressured?

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Chief Justice Roberts hurrying off to write his decision.

Looks like. David Bernstein, at Volokh, shares evidence that Chief Justice Roberts switched his vote and the majority on the Court changed.

Scalia’s dissent, at least on first quick perusal, reads like it was originally written as a majority opinion … (in particular, he consistently refers to Justice Ginsburg’s opinion as “The Dissent”). Back in May, there were rumors floating around relevant legal circles that a key vote was taking place, and that Roberts was feeling tremendous pressure from unidentified circles to vote to uphold the mandate. Did Roberts originally vote to invalidate the mandate on commerce clause grounds, and to invalidate the Medicaid expansion, and then decide later to accept the tax argument and essentially rewrite the Medicaid expansion (which, as I noted, citing Jonathan Cohn, was the sleeper issue in this case) to preserve it? If so, was he responding to the heat from President Obama and others, preemptively threatening to delegitimize the Court if it invalidated the ACA?

28 Jun 2012

Tweet of the Day

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28 Jun 2012

That Sucked!

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Chief Justice Roberts voted with the liberals to uphold the bill.

The Supreme Court astonished many Americans including this blogger by upholding Obamacare essentially in its entirety by ruling that the individual mandate is a tax.

Barack Obama can be seen in this video arguing that the individual mandate is not a tax (increase). (H/T Patterico)

What does all this mean?

Well, I guess our liberal friends are going to change their minds about the illegitimacy of the Supreme Court, and Chief Justice Roberts is going to receive massive quantities of strange, new respect.

If the Court is willing to read the taxing power so sweepingly, in future Congress won’t need to go looking to the Commerce Clause. In essence, the Roberts Court has decided to dramatically expand Congressional power far more than it would have done if it had followed Wickard and upheld the law under the Commerce Clause.

We are left wondering, if the Obamacare individual mandate is a legitimate exercise of an enumerated Congressional power, what could Congress try to compel individual Americans to buy or do that would be beyond its legitimate authority?


Over on Twitter,

Drew M observes: Just a reminder: Democrats NEVER get screwed by their Court nominees.

28 Jun 2012

Somewhere in Europe

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Theo published this photo of a seriously decayed Mercedes Benz 300SL. The picture seems to have come from a Latvian web-site‘s collection of photos of abandoned supercars.

Presumably sitting out there in the rain, somewhere in Europe, awaiting restoration is a serious contender for most desirable car of its 1954-1963 era.

Ones in good condition seem to be going in the $600,000-700,000 range.

28 Jun 2012

Decision Time in a Few Hours

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Megan McArdle has returned to blogging just in time to deliver a post anticipating the Supreme Court’s decision on Obamacare.

Personally, I suspect that progressives will stop attacking the court pretty soon. I have been much amused watching people try to simultaneously defend the fruits of Franklin Delano Roosevelt’s outrageous court-bullying, while also indignantly claiming that it would be abusive, infamous, fundamentally illegitimate and also, downright mean, for conservative justices to even think about overturning long-standing precedent. Suddenly, the internet is full of Latter Day Originalists who think that the constitution was handed down by God on stone tablets—in January 1936.

Since the argument that justices aren’t allowed to overturn laws passed by the legislature, or that they aren’t allowed to overturn long-standing precedent, or that 5-4 decisions aren’t legitimate, would undercut a vast body of laws liberals love—from Miranda to Roe to Boumediene—I tend to think they’ll give up on this line fairly quickly. Especially since going on the attack means spending even more valuable pre-election airspace saying “Hey, voters! Remember that health care law that we passed even though you hated it? The one you still don’t like? Well, I just wanted to remind you that it was also unconstitutional, according to the Supreme Court!”

On the other hand, I consistently underestimate both the hypocrisy, and the political stupidity, of politicians and political activists.

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