Dylan H

Last active
2 years, 2 months ago
  • I’m not sure what “article 7″ you’re talking about. Article VII of the Constitution is about ratification.

    The individual mandate is definitely a tax under the Constitution. It’s just that a tax under the Constitution isn’t the same thing as a statutory tax, like the income tax or payroll taxes. If Congress doesn’t call something a tax, then it’s not a tax for the purposes of the Tax Anti-Injunction Act. But it very well may be a tax under the Constitution, and ultimately an exercise of the Taxing and Spending Clause.

  • I’m now just as confused as you are about Medicaid. Of the 5 votes in the Majority Opinion, only 3 of those votes (Roberts, Kagan, and Breyer) found that with-holding all Medicaid funds if states don’t accept the expansion is unconstitutional. The other two votes in the Majority (Ginsburg and Sotomayor) would have found that the with-holding is completely constitutional.

    Of the Dissenting Opinion (Kennedy, Scalia, Alito, and Thomas), all four found that the with-holding was unconstitutional. The assumption here is that you put these four votes with the three votes in the Majority Opinion, and you get a 7-2 ruling that the with-holding is unconstitutional. However, nobody in the dissent joins Roberts’ opinion in this respect, and Roberts emphatically denies that he’s joining the dissent’s opinion. At least none that I can see.

    The difference between the majority’s finding and the dissent’s is about what to do now that the with-holding is unconstitutional. The entire majority (5 votes) found that you simply sever that particular clause, rather than the entire expansion. Ginsburg and Sotomayor’s concurrence did indeed say that if the majority’s opinion was that the with-holding was unconstitutional, then they sign on to Roberts’ opinion that severing is the correct remedy. The dissent argued that the entire expansion should have been thrown out.

    So we have a huge mess here:

    - 2 Justices finding the with-holding scheme constitutional, but arguing that the proper remedy (if the majority finds it unconstitutional) is to sever it from the broader expansion
    - 3 Justices finding the with-holding scheme unconstitutional, with the proper remedy to be severing it from the broader expansion
    - 4 dissenting Justices finding the with-holding scheme unconstitutional, with the proper remedy being throwing out the expansion altogether

    Ultimately, the 11th Circuit was affirmed in part and reversed in part. This is the official court order. They reversed the Medicaid finding:

    As for the Medicaid expansion, that portion of the Affordable Care Act violates the Constitution by threatening existing Medicaid funding. Congress has no authority to order the States to regulate according to its instructions. Congress may offer the States grants and require the States to comply with accompanying conditions, but the States must have a genuine choice whether to accept the offer. The States are given no such choice in this case: They must either accept a basic change in the nature of Medicaid, or risk losing all Medicaid funding. The remedy for that constitutional violation is to preclude the Federal Government from imposing such a sanction. That remedy does not require striking down other portions of the Affordable Care Act.

    … The judgment of the Court of Appeals for the Eleventh Circuit is affirmed in part and reversed in part.

    It is so ordered.

    I’m personally going to wait for the professional scholars to dissect this portion. It’s odd that there’s explicit majority — namely because there’s no crossover at all between the dissent and the majority — in favor of the court’s ultimate ruling. But I don’t know enough about constitutional law and Supreme Court opinion writing to have an authoritative opinion on this issue.

  • It’s not a tax. Commentators are oversimplifying the ruling. The mandate is an exercise of the taxing power under the Constitution, but it is not a “tax” in the legislative sense. This is why the Tax Anti-Injunction Act didn’t apply.

    It’s the difference between constitutional interpretation and statutory interpretation. Congress did not intend for the penalties to be a tax under the Anti-Injunction Act. Because we’re dealing with a statute, and not the Constitution, Congressional intent matters here. The ACA describes some things as taxes and others as penalties. Therefore, under existing precedent, the Court assumes that Congress is acting intentionally. Regardless of whether or not the individual mandate penalty is regulated as a tax, Congress did not intend for it to be a tax for the purposes of the Anti-Injunction Act. Therefore, it isn’t.

    It’s really confusing to mesh that with how the penalty is a legitimate use of Congressional taxation authority. That’s where the difference between constitutional and statutory interpretation comes into play. The notion of taxation in the Constitution is not literal. Taxation power means that Congress can extract money for the purposes of raising revenue for various things. I think that the distinction was made eloquently by Roberts in the decision:

    It is true that Congress cannot change whether an exaction is a tax or a penalty for constitutional purposes simply by describing it as one or the other. Congress may not, for example, expand its power under the Taxing Clause, or escape the Double Jeopardy Clause’s constraint on criminal sanctions, by labeling a severe financial punishment a “tax.”

    So the short-and-sweet difference is that Congressional intent matters for statutory interpretation of what is and is not a tax, because Congress created the Anti-Injunction Act for specific reasons. However, Congress has no authority to determine what is and is not a tax under the Constitution. The labeling scheme matters in statutory interpretation, but does not matter in constitutional interpretation. Under the Constitution, if something walks, talks and acts like a tax, it is a tax.

  • Dylan H commented on the blog post Quick Reactions on Upholding of the Affordable Care Act

    2012-06-28 11:08:04View | Delete

    It is really confusing, and I feel sorry for the 11th Circuit. But it is part of the ruling; it’s not merely dicta. SCOTUSblog has a post on this specific issue: http://www.scotusblog.com/2012/06/court-holds-that-states-have-choice-whether-to-join-medicaid-expansion/

    Basically, what happened is that there were 2 votes (Ginsberg and Sotomayor) to uphold the entire expansion. There were 3 votes in the majority opinion that the expansion was unconstitutional. This was joined by the dissent, who disagreed only with the remedy.

    That gives us 7 votes that the expansion is unconstitutional, and 5 votes that the remedy was to sever the with-holding part rather than strike the entire expansion. Ginsberg and Sotomayer joined the majority on the remedy, even though they would have found the entire expansion constitutional.

  • Dylan H commented on the blog post Quick Reactions on Upholding of the Affordable Care Act

    2012-06-28 10:14:58View | Delete

    There was no majority voting in favor of Roberts’s discussion of the Medicaid expansion provisions in parts IV-A and IV-B. Period. Those portions are Roberts alone. They are dicta.

    The Commerce Clause arguments are dicta, but the Medicaid ruling is actually a ruling. I’m not sure where you’re getting your information.

    Per the summary, Breyer and Kagan joined Roberts in his entirety, ruling that the Medicaid provisions were unconstitutional uses of Spending Power. Combined with the 4 dissenting opinion, that makes a 7-2 ruling against Congressional authority to retract existing Medicaid funds in order to coerce states into accepting new funds.

  • Dylan H commented on the blog post Quick Reactions on Upholding of the Affordable Care Act

    2012-06-28 10:08:47View | Delete

    I don’t think that last part is particularly good analysis. Congress doesn’t have to do anything different. Mandates such as in ACA will in the future be interpreted as taxes. So Congress doesn’t have to literally pass taxes. They can literally do everything the same way that they did with ACA. Existing social welfare programs already use explicit taxation policies. Going forward, that’s probably how major social welfare programs will still be created.

    ACA was unique. It is not by any means a model of traditional American social welfare programs. I’m straining to think of future welfare programs that would need an individual mandate mechanism, let alone can logically be implemented with one.

  • Dylan H commented on the blog post Russia, China Veto UN Resolution on Syria

    2012-02-04 17:38:12View | Delete

    That is absurd hyperbole. Go spend a month in Sudan, then re-read your post. I’m sure you’ll find it as equally ridiculous as I do. There is no humanitarian crisis in the United States.

  • Dylan H commented on the blog post Russia, China Veto UN Resolution on Syria

    2012-02-04 17:34:59View | Delete

    The main issue I have with progressives, especially on FDL, is that they continually bring Iraq into the argument. Iraq does not exemplify the preferences of modern humanitarian intervention advocates. In fact, Iraq went against many of the principles. So when you bring up Iraq, you’re ignoring the real debate.

    But, honestly, if you’re voting for Ron Paul, then you’re irrational. Trying to convince you that supporting humanitarian intervention falls directly in line with liberal political thought isn’t worth it. I don’t think many progressives now are interested in having a truly thoughtful discussion on this issue.

    They’ve latched onto George W. Bush, Iraq, and anti-war dogma, and it’s mutated into a completely illiberal policy position. It’s one of the strangest political developments I’ve seen in years, and I’m really dismayed that it might become a standard Democratic principle.

  • Dylan H commented on the blog post Russia, China Veto UN Resolution on Syria

    2012-02-04 17:30:21View | Delete

    Okay. I don’t think we should be supplying Israel with money for military use, either. I don’t think that we should abandon them completely, either, but this isn’t about Israel.

    Do you think the United States gives that much money to Assad? USAID data is publicly available. No money is slated for Syria. The United States does not generally fund genocidal dictatorships, despite whatever conspiracy theories might be floating around the internet. So, what is cutting off funding going to do? Even specifically, how does cutting off funding for Israel solve the issue in Syria?

    Regimes can function without United States monetary support. History is full of examples, if you bother to but a little bit of thought into developing your opinion on this issue.

  • Dylan H commented on the blog post Russia, China Veto UN Resolution on Syria

    2012-02-04 15:20:00View | Delete

    Let me ask you a related question: do believe, then, that Washington has no ‘legitimate business’ in promoting human rights and democracy? If you do, then at the very least you’re a progressive that doesn’t say human rights are inviolable, prevents massive and systemic violations from being stopped, and then complains when they intensify and the government doesn’t respond.

    The progressive wing is free to become a party that doesn’t support human rights. But it is completely naive to support human rights, but deny any responsibility in the deaths of Syrians when you advocate a policy that prevents any and all intervention.

  • Dylan H commented on the blog post Russia, China Veto UN Resolution on Syria

    2012-02-04 15:16:55View | Delete

    I suggest that we stop constructing false dichotomies and realize that not every intervention is a recreation of George W. Bush’s Iraq.

  • Dylan H commented on the blog post Russia, China Veto UN Resolution on Syria

    2012-02-04 14:42:57View | Delete

    You are cheering on Russian and Chinese policy on human rights. Yet you call yourself progressive. This issue is one where the progressive bloc of the Democratic Party will never get it right. History is working against this amoral policy stance. Why do some many progressives insist on allowing humanitarian crises continue unabated?

  • What does the United States have to do with the electoral reform in Canada?

  • I thought Canada already used STV (single transferable vote)? Maybe that’s just in some local election, or something. I do know several Canadians that discussed how they used last election, and they talked about STV.

  • It would probably have the same effect as the website going offline. But it’d be pretty difficult to avoid Google on the internet, without actually abstaining from going online. :

  • Twitter definitely is not participating. I wouldn’t expect Google, Facebook, PayPal or Yahoo! to participate, either.

    Shutting down for 24 hours would seriously hurt their profits. While Google for sure does not like SOPA or PIPA, it hosts a lot of services that make a lot of money. Unlike Wikipedia, it is a publicly traded company, and the loss of revenue from shutting down for 24 hours might not go over well on the trading floor. Google is, after all, legally answerable to its stockholders.

    Twitter declined shutting down because of it’s global importance, or something like that. The CEO sounded pretty dickish and naive, if you ask me. I guess you can’t really expect a well thought out press release in 140 characters, though.

    Yahoo and Facebook likely would face the same issues as Google in participating the blackout.

    Reddit a private company, so it doesn’t face those same pressures. I would venture to say that most big name websites participating in the blackout aren’t publicly traded companies.

  • Dylan H commented on the blog post Ron Paul and the Future of the GOP

    2012-01-14 10:19:39View | Delete

    Let’s analyze the options he had.

    1. Veto the bill.
    2. Sign the bill.

    If he vetoed the bill, we would likely still be in the same situation. Congress most likely would have overridden that veto. But let’s assume they couldn’t have and let’s assume Republicans would make this big fight about the provision. What are the consequences of that? Well, quite clearly, it would mean the entire military would lack funding. Sound good? Maybe to you. But I would rather we have a military and that we’re able to pay our soldiers. The majority of Americans agree with me.

    So, he signed the bill, seeing as how neither option would get him to where he wanted to be, but signing the bill would avoid a politically toxic mistake. When signing it into law, he makes sure to say that the provision is unconstitutional and that he won’t use it.

    It should end there. You erroneously assume that “any asshole who follows him can freely use it against the citizenry.” That’s simply wrong. The NDAA expires and must be rewritten this time next year. You’re assuming that Republicans will win all three branches of government, with both a filibuster-proof and veto-proof majority. That’s wrong, but it’s not as wrong as your other assumption.

    You cannot seriously believe that any President would go around arresting civilian citizens left and right, denying them trial, and assassinating them. That’s is obviously hyperbolic. You need to address reality and stop living in a world where something that theoretically can happen will always happen to the worst extent imaginable. The fact is that this provision will likely be inconsequential from here until next year.

    Do I like that it exists? No. Am I going to abandon my party and President because of it? No. Why on earth would I voluntarily hand a victory over to Republicans, who like the provision and would most likely insert it into NDAA 2013?

  • Dylan H commented on the blog post Ron Paul and the Future of the GOP

    2012-01-13 17:39:03View | Delete

    Yes, this is why President Obama wrote a very lengthy signing statement saying that he believes the provision is unconstitutional and that his administration will essentially ignore it. That definitely shows that Democrats want to indefinitely arrest everybody and assassinate the more annoying ones.

  • Dylan H commented on the blog post Ron Paul and the Future of the GOP

    2012-01-13 08:43:47View | Delete

    I can appreciate the theoretical arguments about how that NDAA provision is contrary to all of our commonly-held democratic principles. But I can be practical enough to know that the United States isn’t going to become a totalitarian police state by this time next year, when the next NDAA will have to be written.

  • Dylan H commented on the blog post Ron Paul and the Future of the GOP

    2012-01-13 08:02:13View | Delete

    I’m fairly certain that should I ever be arrested and put on trial, I’ll have habeas corpus and I won’t be assassinated. I don’t see people being denied trials and dying all over the place. Do you?

    Besides, not voting for the Democrats and helping a Republican into the Presidency isn’t exactly going to change things, considering Republicans were the one who put that provision in the NDAA. This is simply logic, but I know that the more of an extreme partisan you are, the less you accept logic.

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