Dohiyi Mir

Tyranny Of The Minority

Athenae:

We have ways of changing laws and NONE OF THEM are this. Unless George Will is actually saying the Civil War was a good method of conflict resolution upon which the nation should model government going forward, in which case for God's sake, will somebody get his meds under control?

Indeed, this is central to my point.

I've not said that what the House GOP is doing is repugnant to the Constitution.  It's totally within their prerogative to be complete and utter douchenozzles, awash with cynicism and lacking basic compassion.  That's why we have elections to theoretically hold them accountable.

Sadly, we have a particular demographic, a good bit of which is coincidentally of similar makeup and found in similar geography as we saw in ante bellum sectionalism, who cannot admit that the nation is changing.  And when they lose elections, they decide this democratic process stuff ain't for our Republic and do everything they can to pervert normal political mechanisms.

In the short-term, Obama and Congressional Democrats need to hold firm.  In 2014, we need to mobilize so that obstinant extremism is not rewarded with more opportunities to burn the place down.

ntodd

Bait And Switch

As I've said elsewhere, it's an interesting--if too clever by half--rhetorical trick the Right is playing with the Obamacare comparisons to McCarthyism, Jim Crow and slavery (which I thought was a good thing?).  The latter three, of course, are things liberals have essentially fought since the beginning of our Republic.

The flip side of that is conservatives fought hard against our efforts to defend individual human rights.  It was conservatives who rebelled over the mere fact that there were abolitionists (I'm so not even kidding), even though they had an inequitable advantage in Congress and the Electoral College thanks to the Three-fifths Compromise.  It was conservatives (yes, including Robert Byrd) who filibustered against various Civil Rights acts.  And up until very recently, it was conservatives who (re)embraced McCarthy.

Just throwing shit at the wall to see what sticks, I guess.  I am moderately hopeful that these tactics will not succeed.

ntodd

At Least He Didn't Mention The Holocaust

Let us genuflect at this starburst of analysis:

Conservative columnist and pundit George Will on Wednesday compared Obamacare to the Fugitive Slave Act and segregation to demonstrate the "bruising, untidy, utterly Democratic" process of changing laws.

In an interview with NPR's "Morning Edition," host Steve Inskeep asked Will about President Barack Obama's argument that Republicans are short-circuiting the system by using government funding and the debt ceiling as leverage to dismantle Obamacare, rather than repealing the law outright. 

"How does this short-circuit the system?" Will said. "I hear Democrats say, 'The Affordable Care Act is the law,' as though we're supposed to genuflect at that sunburst of insight and move on. Well, the Fugitive Slave Act was the law, separate but equal was the law, lots of things are the law and then we change them."

Indeed, a law that gives states the option to set up their own healthcare exchanges and offers them money to provide health coverage to more of their poor is just like forcing states to capture humans running away from bondage and return them to their oppressors.  And a law that expands access for everybody and assesses a quite small, fundamentally unenforceable tax on a tiny subset of wealthy people who refuse to support their community's general welfare is just like requiring Americans of a certain color to use different public facilities from white folks.

ntodd

PS--Yesterday I was told that a majority of Americans supported Joseph McCarthy and he had to be stopped, so clearly the Republicans need to shut down the government to stop Obamacare.  It is left as an exercise for the reader to unpeel that onion.

Concerto per violino e orchestra

Alfredo Casella.

ntodd 

Origination's Origins

Apropos of the antis' Origination Clause gambit, on June 13, 1787:

Mr. GERRY. moved to restrain the Senatorial branch from originating money bills. The other branch was more immediately the representatives of the people, and it was a maxim that the people ought to hold the purse-strings. If the Senate should be allowed to originate such bills, they wd. repeat the experiment, till chance should furnish a sett of representatives in the other branch who will fall into their snares.

Because, of course, the House would never, ever, just "repeat the experiment" until the Senate were finally made up of people who would go along with them on a single issue that a certain faction is obsessed with.  What, hadn't he ever heard of Gerrymandering before?

Ahem.

Anyway, the rebuttals were instructive:

Mr. BUTLER saw no reason for such a discrimination. We were always following the British Constitution when the reason of it did not apply. There was no analogy between the H. of Lords and the body proposed to be established. If the Senate should be degraded by any such discriminations, the best men would be apt to decline serving in it in favor of the other branch. And it will lead the latter into the practice of tacking other clauses to money bills.

Mr. MADISON observed that the Commentators on the Brit: Const: had not yet agreed on the reason of the restriction on the H. of L. in money bills. Certain it was there could be no similar reason in the case before us. The Senate would be the representatives of the people as well as the 1st. branch. If they sd. have any dangerous influence over it, they would easily prevail on some member of the latter to originate the bill they wished to be passed. As the Senate would be generally a more capable sett of men, it wd. be wrong to disable them from any preparation of the business, especially of that which was most important, and in our republics, worse prepared than any other. The Gentleman in pursuance of his principle ought to carry the restraint to the amendment, as well as the originating of money bills, since, an addition of a given sum wd. be equivalent to a distinct proposition of it.

Mr. KING differed from Mr. GERRY, and concurred in the objections to the proposition.

Mr. READ favored the proposition, but would not extend the restraint to the case of amendments.
...
Mr. SHERMAN. As both branches must concur, there can be no danger whichever way the Senate [FN3] be formed. We establish two branches in order to get more wisdom, which is particularly needed in the finance business-The Senate bear their share of the taxes, and are also the representatives of the people. What a man does by another, he does by himself is a maxim. In Cont. both branches can originate in all cases, and it has been found safe & convenient. Whatever might have been the reason of the rule as to The H. of Lords, it is clear that no good arises from it now even there.

Genl. PINKNEY. This distinction prevails in S. C. & has been a source of pernicious disputes between ye. 2 branches. The Constitution is now evaded, by informal schedules of amendments handed from ye. Senate to the other House.

And a month later:

Mr. GOVERNr. MORRIS was opposed to a restriction of this right in either branch, considered merely in itself and as unconnected with the point of representation in the 2d. branch. It will disable the 2d. branch from proposing its own money plans, and giving the people an opportunity of judging by comparison of the merits of those proposed by the 1st. branch.

Mr. WILSON could see nothing like a concession here on the part of the smaller States. If both branches were to say yes or no, it was of little consequence which should say yes or no first, which last. If either was indiscriminately to have the right of originating, the reverse of the Report, would he thought be most proper; since it was a maxim that the least numerous body was the fittest for deliberation; the most numerous for decision. He observed that this discrimination had been transcribed from the British into several American constitutions. But he was persuaded that on examination of the American experiments it would be found to be a trifle light as air. Nor could he ever discover the advantage of it in the Parliamentary history of G. Britain. He hoped if there was any advantage in the privilege, that it would be pointed out.

Mr. WILLIAMSON thought that if the privilege were not common to both branches it ought rather to be confined to the 2d. as the bills in that case would be more narrowly watched, than if they originated with the branch having most of the popular confidence.

Mr. MASON. The consideration which weighed with the Committee was that the 1st. branch would be the immediate representatives of the people, the 2d. would not. Should the latter have the power of giving away the people's money, they might soon forget the source from whence they received it. We might soon have an aristocracy. He had been much concerned at the principles which had been advanced by some gentlemen, but had the satisfaction to find they did not generally prevail. He was a friend to proportional representation in both branches; but supposed that some points must be yielded for the sake of accomodation.

So in the end, there was a compromise (and I'm inclined to think it one of the most worthless): the House would originate, but the Senate could amend and all revenue bills would require consent from both chambers.  Which is about as disconnected from the original concerns and inspiration of the measure as you can get.

ntodd

Making The Possible Impossible

Politics is the art of the possible, the attainable - the art of the next best.

 - Otto von Bismarck

Would that Obamacare opponents understood that.  You aren't going to get what you want.  

You've tried arguing in the courts.  You've tried repealing in Congress.  You've tried overthrowing the regime in multiple elections.

Now you've tried shutting down functioning government, and still Obamacare marches on.  Time to look for the attainable "next best."

ntodd

Deficiency

Oh, George:

From his new perch at Fox News, meanwhile, George Will argued that the National Park Service is acting like a “willing servant” of the Democrats. “All around the country,” Will said, the government “went out of [its] way to make life as unpleasant and inconvenient as possible.” Will went on to call the closure of parks “government acting as an interest group on its own behalf.”

May I introduce the Antideficiency Act?

ntodd

Dreams! adorations! illuminations!

If you could only see the beast you've made of me...

ntodd 

Shutdown v Funding Gap

I've been seeing the "government has shut down 17 times" thing here and there, and I'm not entirely sure that's accurate, given this CRS report and this:

For years leading up to 1980, many federal agencies continued to operate during a funding gap, “minimizing all nonessential operations and obligations, believing that Congress did not intend that agencies close down,” while waiting for the enactment of annual appropriations acts or continuing resolutions. In 1980 and 1981, however, U.S. Attorney General Benjamin R. Civiletti issued two opinions that more strictly interpreted the Antideficiency Act in the context of a funding gap, along with the law’s exceptions. The Attorney General’s opinions stated that, with some exceptions, the head of an agency could avoid violating the Antideficiency Act only by suspending the agency’s operations until the enactment of an appropriation.

There have been lots of funding gaps, but it's not clear they've really all involved shutdowns.

ntodd

Sports Tribalism

Given my Cleveland Professional Baseball Team lost its wildcard game, and Columbus Came To Kill Natives Day is coming up, it seems appropriate to at least give a nod to the Washington Not Racists controversy, as well as my own Tribe's racial ID problems.

ntodd

Unoriginal Origination Arguments

Bless their hearts, NRO still thinks there's a constitutional argument against Obamacare that will play in the Judiciary and Peoria:

To sustain this monstrosity, Chief Justice John Roberts had to shed his robes and put on his legislator cap. He rewrote Obamacare as a tax — the thing the president most indignantly promised Americans that Obamacare was not. And it is here that our recent debate over the Constitution’s Origination Clause — the debate in whichMatt Franck, Ramesh Ponnuru, Mark Steyn, and yours truly have probed the historical boundaries of the “power of the purse” reposed by the Framers in the House of Representatives — descends from the airy realm of abstraction and homes in on a concrete violation of law.

It is not just that the intensely unpopular Obamacare was unconstitutional as fraudulently portrayed by the president and congressional Democrats who strong-armed and pot-sweetened its way to passage. It is that Obamacare is unconstitutional as rewritten by Roberts. It is a violation of the Origination Clause — not only as I have expansively construed it, but even under Matt’s narrow interpretation of the Clause.
...
We now know Obamacare was tax legislation. Consequently, it was undeniably a “bill for raising revenue,” for which the Constitution mandates compliance with the Origination Clause (Art. I, Sec. 7). The Clause requires that tax bills must originate in the House of Representatives. Obamacare did not. 

This approach has been around for quite some time (see PLF's challenge from last year).  And it still isn't compelling.

First of all, Obamacare is not a tax.  It is a comprehensive reform of health insurance access that includes a tax penalty for non-compliance by people at a certain income level within a particular provision.  SCOTUS has ruled a number of times:

[T]hat a statute that creates a particular governmental program and that raises revenue to support that program, as opposed to a statute that raises revenue to support Government generally, is not a "Bill for raising Revenue" within the meaning of the Origination Clause. 

Second, the bill did, in fact, originate in the House.  It was amended, per Senate rules and the Constitution.  Notice the 'H.R.', meaning it is a House resolution.

There are 7 versions of Bill Number H.R.3590 for the 111th Congress. Usually, the last item is the most recent.

1 . Service Members Home Ownership Tax Act of 2009 (Introduced in House - IH)[H.R.3590.IH][PDF]
2 . Service Members Home Ownership Tax Act of 2009 (Engrossed in House [Passed House] - EH)[H.R.3590.EH][PDF]
3 . Service Members Home Ownership Tax Act of 2009 (Placed on Calendar Senate - PCS)[H.R.3590.PCS][PDF]
4 . Patient Protection and Affordable Care Act (Amendment in Senate - AS)[H.R.3590.AS][PDF]
5 . Patient Protection and Affordable Care Act (Public Print - PP)[H.R.3590.PP][PDF]
6 . Patient Protection and Affordable Care Act (Engrossed Amendment Senate - EAS)[H.R.3590.EAS][PDF]
7 . Patient Protection and Affordable Care Act (Enrolled Bill [Final as Passed Both House and Senate] - ENR)[H.R.3590.ENR][PDF]

Third, if the House felt its constitutional prerogative was usurped, there was a remedy:

The House’s primary method for enforcement of the Origination Clause is through a process known as “blue-slipping.” Blue-slipping is the term applied to the act of returning to the Senate a measure that the House has determined violates its prerogatives as defined by the Origination Clause. It is called blue-slipping because historically the resolution returning the offending bill to the Senate has been printed on blue paper. This process is provided for under House Rule IX, clause 2(a)(1)...

The House can assert its privilege at any time it is in possession of the bill and related papers (that is, anytime the actual documents are not physically in possession of the Senate or a conference committee). Therefore, the House is not limited to enforcing its prerogative only through blue-slipping a measure upon its initial receipt from the Senate.48 Historically, the House has used a variety of methods for enforcement.

But, you know, keep trying.  I'm sure you'll be as successful as the House GOP and those clever birthers in court...

ntodd

PS--I will note that Scalia's Obamacare dissent cites United States v. Munoz-Flores (linked above), so it's conceivable that there would be 4 SCOTUS votes to hear an Origination case.

Tax The Rich

Whilst perusing statutes from the first few Congresses, I came across this interesting luxury tax from 1794: An Act laying duties upon Carriages for the conveyance of Persons.

Once again, this was a source of contention between two of the Federalist Papers' authors:

Hamilton, when Secretary of the Treasury, recommended a tax on pleasure carriages and Madison opposed it in the House on the ground that it was a direct tax, and therefore unconstitutional. The bill laying the tax became a law, and certain persons in Virginia refused to pay the tax, taking Madison’s position as to its unconstitutionality. The case came before the Supreme Court, and Hamilton appeared for the government with the Attorney-General of the United States.

One of the newspapers said next day (Feb. 25th): “Yesterday, in the Supreme Court of the United States, Mr. Hamilton, late Secretary of the Treasury, made a most eloquent speech in support of the constitutionality of the carriage tax. He spoke for three hours. and the whole of his argument was clear, impressive, and classical. The audience, which was very numerous, and among whom were many foreigners of distinction and many of the Members of Congress, testified the effect produced by the talents of this great orator and statesman.”

All that now remains of the argument is the fragment of a brief given above. The case was Hylton vs. the United States...The court sustained Hamilton’s view, and held unanimously that the tax was not direct and therefore constitutional.

Indeed, SCOTUS noted the absurdity of Madison's construction:

A tax on carriages, if apportioned, would be oppressive and pernicious. How would it work? In some states there are many carriages and in others but few. Shall the whole sum fall on one or two individuals in a state who may happen to own and possess carriages? The thing would be absurd and inequitable.

In answer to this objection, it has been observed that the sum, and not the tax, is to be apportioned, and that Congress may select in the different states different articles or objects from whence to raise the apportioned sum. The idea is novel.

What, shall land be taxed in one state, slaves in another, carriages in a third, and horses in a fourth, or shall several of these be thrown together in order to levy and make the quoted sum? The scheme is fanciful. It would not work well, and perhaps is utterly impracticable.

This view held for almost a century:

those Justices who wrote opinions either directly asserted or strongly suggested that only two forms of taxation were direct: capitations and land taxes. See id., at 175; id., at 177 (opinion of Paterson, J.); id., at 183 (opinion of Iredell, J.). That narrow view of what a direct tax might be persisted for a century. In 1880, for example, we explained that “direct taxes, within the meaning of the Constitution, are only capitation taxes, as expressed in that instrument and taxes on real estate.” Springer, supra, at 602.

In 1895, we expanded our interpretation to include taxes on personal property and income from personal property, in the course of striking down aspects of the federal income tax. Pollock v. Farmers’ Loan & Trust Co., 158 U. S. 601, 618 (1895). That result was overturned by the Sixteenth Amendment, although we continued to consider taxes on personal property to be direct taxes. See Eisner v. Macomber, 252 U. S. 189, 218–219 (1920).

Why am I bringing this up now?  Because that little capsule summary is included along with a couple references Hylton in Chief Justice Roberts' opinion upholding Obamacare.  Figured that was germane given the shutdown is over the individual mandate's tax penalty, and that DoJ is asking SCOTUS to rule on the birth control mandate.

Anyway, it seems that taxing the rich has not only always been a good idea, it's also always been the law!

ntodd

And Then There's St Clair, Like A Bad Penny...

While Burgoyne was disgraced and never held another command, the same was not true of General Arthur St Clair on our side.

He and Schuyler got their butts kicked (really not their fault) at Ticonderoga, and were unable to do much to help Warner at Hubbardton.  Still, Congress was not happy with St Clair, and many wanted to drum him out of service.

Might've been good if he had never been given another command.  Instead, he was in charge of the worst military defeat in US history, which spurred the very first Congressional investigation ever and led the to passage of the Militia Acts of 1792.

ntodd

Byebye, Burgoyne!

Well, not quite.  The Second Battle of Saratoga was lost, but there was still plenty of dickering to be done:

When he read Gates’s shocking terms, Burgoyne reconvened the officers who had met the day before and they “declared unanimously that they would rather die than accept such dishonorable conditions.”

Their objection was principally to two particulars in Gates’s demands: that they would ground arms inside their camp and surrender as prisoners ol‘ war. Burgoyne’s reply to the American general minced no words: “If General Gates does not mean to recede from the first and sixth articles of his proposal, the treaty [is] to end and hostilities immediately to commence.”
...
At sunset Burgoyne sent Kingston back with his own proposals, saying he would accept no changes. To Gates’s statement that the British retreat was cut off, he replied dramatically that his army, “however reduced, will never admit that their retreat is cut off while they have arms in their hands.” His troops were to march out of camp with the honors of war and ground arms at the bank of the Hudson at the command of their own officers. All officers would retain their swords and equipment, the soldiers their knapsacks; and the army was to march to Boston, where they would be properly fed and sheltered before embarking for England.

The only condition imposed was that they were not to serve in North America again during the present war (which came as a great relief to some of his own officers and most of the Germans). The Canadians were to be given laissez-passer to return home, and non- combatants were to be treated as British citizens. A host of other provisos followed, relatively minor, all generous to the defeated force. Once again Gates astonished everybody by accepting all the British proposals with only a single provision: “This capitulation to be finished at five. . . .”

Burgoyne’s suspicions were immediately amused. Why should Gates agree so readily to what were extraordinary terms, and what was behind his demand for concluding the surrender so precipitately? Surely this meant that Clinton was coming closer every day and Gates was in a rush to conclude the business so he could defend himself against the attack from the south. The Briton requested a postponement of the surrender, and once again Gates agreed.

The British general was right. Gates had received word that a British fleet of twenty sail was heading upstream carrying Vaughan’s troops to Esopus, and since he had no information on the size of that force, he wanted to waste no more time on negotiations. Unfortunately his motives were all too apparent, and Burgoyne now sent a message to him that although they both saw eye to eye on most matters, others required “explanation and precision,” and more time would be needed for discussion. He would name two officers who could speak for him and asked that Gates do the same.

Yeah, well, the game was lost, despite a few moments of false hope for Burgoyne, so on the 17th:

The prisoners were approaching with fifes and drums playing, and the waiting Americans lined both sides of the road, standing with muskets at their sides, eyes looking straight ahead or lowered in deference to the defeated men, though it was “a very agreeable sight,” according to Ephraim Squier. Brigade by brigade, regiment by regiment, the British and Brunswickers paraded through this gauntlet, their jaws tight with anger and pride, arms swinging freely now that they had no weapons to carry, seeing for the first time the face of destiny.

The road ahead sliced through the rich bottomland along the Hudson, and it was a gumbo of pockmarks and ruts, the scars left by more than fifteen thousand pairs of feet, horses, wagons, and gun carriages sloshing through rain and mud during the past two weeks. Along the road, stretching out as far as the eye could see, were those rows of rebels, and American iifers suddenly struck up the shrill notes of “Yankee Doodle,” the impudent little tune that was introduced during the French and Indian War by a British doctor who composed verses mocking the rustic Yankee recruits.
...
An English officer said the Yankees “love [it] the best of all their songs; they sing it in camp & consider it as warlike as the grenadiers march: it is the a b c of lovers & the song which lulls to sleep their children. After our rapid successes we had accustomed ourselves to regard the Yanks with contempt, & it was not a little mortifying to us to hear them play that air when their army assembled to be witnesses of our surrender.”

And thus the dark days of Summer '77 receded as The Great Turning Point brought us new assistance from France.  Still a long slog toward total independence...

ntodd

Zombie Nation

Kernkraft 400!

ntodd