The Braintrust Gets It Wrong. Again.

I hope everyone had a good fourth.

But there's still work to be done, still misinformation to be corrected, still Tribune-Review op-eds to be debunked.

Like this one, today:

The Obama administration just jumped out of the frying pan and into the fire with its abrupt Tuesday decision to delay a signature provision of ObamaCare.

Not only is the move to delay, until 2015, implementation of a mandate that larger employers (of 50 or more workers) provide health care insurance for their employees or face a $2,000 fine for each nakedly political — it postpones an onerous diktat with backdraft political implications until after the 2014 midterm elections — the administration's arbitrary decision to flout the law is patently illegal. [Emphases added.]

Arbitrary?  Well, let's see about that.  Here's how the Treasury Department explains the "abrupt" and "arbitrary" decision:

Over the past several months, the Administration has been engaging in a dialogue with businesses - many of which already provide health coverage for their workers - about the new employer and insurer reporting requirements under the Affordable Care Act (ACA). We have heard concerns about the complexity of the requirements and the need for more time to implement them effectively. We recognize that the vast majority of businesses that will need to do this reporting already provide health insurance to their workers, and we want to make sure it is easy for others to do so. We have listened to your feedback. And we are taking action.

The Administration is announcing that it will provide an additional year before the ACA mandatory employer and insurer reporting requirements begin. This is designed to meet two goals. First, it will allow us to consider ways to simplify the new reporting requirements consistent with the law. Second, it will provide time to adapt health coverage and reporting systems while employers are moving toward making health coverage affordable and accessible for their employees. Within the next week, we will publish formal guidance describing this transition. Just like the Administration’s effort to turn the initial 21-page application for health insurance into a three-page application, we are working hard to adapt and to be flexible about reporting requirements as we implement the law.

So not so abrupt or arbitrary, huh?  But take a look at the why of the delay: to give businesses more time to meet the requirements of the law.

And what does business have to say about this delay?  From the New York Times:

Employer groups were quick to applaud the delay. At the U.S. Chamber of Commerce, which has strongly opposed the law, Randy Johnson, senior vice president for labor, immigration and employee benefits, said in a statement, “The administration has finally recognized the obvious — employers need more time and clarification of the rules of the road before implementing the employer mandate.”

E. Neil Trautwein, a vice president of the National Retail Federation, said the delay “will provide employers and businesses more time to update their health care coverage without threat of arbitrary punishment.”

And why is there a need for a delay?  This from the Washington Post:

The decision comes as a result of years of bumps and setbacks for the overhaul, including legal challenges and political opposition that have hampered its implementation. Last summer, the Supreme Court upheld the law but struck down a mandatory expansion of Medicaid. State officials and businesses held off changing their policies through the 2012 presidential campaign because Obama’s GOP opponent, Mitt Romney, had promised to repeal the law.

Basically, business has been delaying implementing the policies hoping that either the Supreme Court overturns the law or Romney killed it.  In case you missed it, neither happened.

And so now they're running short of time and the Administration just gave them another year.

And yet to Scaife's braintrust, it's an "abrupt" and "arbitrary" decision designed to help out in the 2014 midterms.

But will it have much of an effect?  According to Brian Beutler at Talkingpointsmemo, not so much:

The provision in question — the so-called “employer mandate” — is intended to entice large employers to provide insurance to their full-time employees, and create a disincentive for large employers who might be tempted to unload their health care costs on to taxpayers by nudging their employees into Obamacare’s subsidized insurance exchanges.

Crucially, though, experts note that these incentives are fairly trivial in the grand scheme of employer sponsored insurance, and they don’t expect that the temporary delay of this particular penalty will have major consequences for the insurance market under Obamacare.

“[T]here is very little in the ACA that changes the incentives facing employers that already offer coverage to their workers, and fully 96 percent of employers with 50 or more workers already offer today,” write Linda J. Blumberg, John Holahan, and Judy Feder of the Urban Institute. “Competition for labor, the fact that most employees get greater value from the tax exclusion for employer sponsored insurance than they would from exchange-based subsidies, and the introduction of a requirement for individuals to obtain coverage or pay a penalty themselves, are the major factors that will keep the lion’s share of employers continuing to do just what they do today with no requirements in place to do so.”

In other words, even in absence of Obamacare’s $2000-a-head penalty, employers still have very real incentives to offer their employees health benefits. And if the delay will only have a modest impact on the insurance market, then it should also have a modest impact on the law’s fiscal consequences.

Funny how much real reality differs from the false reality projected by the Tribune-Review editorial board - you know, once someone bothers to introduce facts to the discussion.

Jack Kelly Sunday

In this week's column, the P-G's Jack Kelly goes after President Obama's honesty.

I don't think Jack Kelly has any room to comment on this particular subject.  Anyone remember his incredibly dishonest attack on Van Jones in 2009?  How many lies were found in there?  Know what happened to that column?  It got pulled and scrubbed from the P-G website a few days later.

This is the guy currently lecturing us on presidential honesty.

Be that as it may, let's take a look at what he actually says, avoiding his obvious lack of credibility on the subject.

He begins:

Our first president was so revered for his integrity that most believed that even as a child, George Washington could not tell a lie.

What an interesting way to start a column on telling the truth!  Obviously, it's a reference to the "cherry tree" story part of George Washington's biography - a story that as far back as 1911, was acknowledged to have no supporting evidence outside of the assertion of the man, Parson Weems, making it.  Yet with near endless repetition, the story's "established" as fact.

Interesting thing to keep in mind when reading Jack's assertions about Obama's credibility.

Next paragraph:

Can our current president tell the truth? Former Amb. Fred Eckert has filled a 188-page book, "That's a Crock, Barack," with "untrue, duplicitous, arrogant and delusional" things Barack Obama has said.

But who's this Fred Eckert?

According to this review at Townhall.com, he's:

...a prototypical unsung hero of the conservative movement. Eckert paid his political dues in upstate New York in 1968, organizing local Republican support for the presidential candidacy of Richard Nixon, standing in opposition to the native New York liberal GOP hero, Nelson Rockefeller. This baptism of fire led Mr. Eckert to a series of increasingly responsible positions in New York municipal, county, and state government, most notably as a state senator for ten years, 1972-82. Eckert, a staunch conservative, who endorsed the Reagan presidential effort as early as 1975, served as U.S. Ambassador to Fiji from 1982-84. He then won a seat in the 99th Congress, serving as a Republican and representing a district based in Rochester, New York. He finished his calling in public life, serving as a second U.S. Ambassador to the United Nations Agency for Food and Agriculture during 1987-88.

Not really a detached observer, then is he?  Perhaps just labeling him, as Jack does, as merely a "former ambassador" leaves out some important information.  This is what's known as a lie of omission, my friends.

Oh, and according to that same review, the book's actually 183 pages, not 188. So, if that's true, I guess we caught Jack in another lie that discredits his entire column, huh?

Geez, this is easy.  Back to Jack:

A few caveats. Often when we say something that isn't true, we aren't lying, because we think it is true. We are ignorant or careless or both, but we aren't trying to deceive.

When a politician says one thing while seeking office, but does the opposite in office, that isn't exactly a lie. Sometimes a new president learns stuff that causes him to alter stances he took during the campaign. This could be why Mr. Obama reneged on his pledge to close the prison at Guantanamo Bay.

Closing the prison may have been delayed, but did Obama renege on his pledge to close the prison at Guantanamo Bay?

No.  When he signed HR 1473 in April of 2011, he wrote:

Today I have signed into law H.R. 1473, the "Department of Defense and Full-Year Continuing Appropriations Act, 2011".

Section 1112 of the Act bars the use of funds for the remainder of fiscal year 2011 to transfer Guantanamo detainees into the United States, and section 1113 bars the use of funds for the remainder of fiscal year 2011 to transfer detainees to the custody or effective control of foreign countries unless specified conditions are met. Section 1112 represents the continuation of a dangerous and unprecedented challenge to critical executive branch authority to determine when and where to prosecute Guantanamo detainees, based on the facts and the circumstances of each case and our national security interests. The prosecution of terrorists in Federal court is a powerful tool in our efforts to protect the Nation and must be among the options available to us. Any attempt to deprive the executive branch of that tool undermines our Nation's counterterrorism efforts and has the potential to harm our national security.

So it was the Congress that stopped the closing of the prison by barring the use of funds to transfer anyone out of there.  A paragraph or so later, he wrote:

Despite my continued strong objection to these provisions, I have signed this Act because of the importance of avoiding a lapse in appropriations for the Federal Government, including our military activities, for the remainder of fiscal year 2011.

Nevertheless, my Administration will work with the Congress to seek repeal of these restrictions, will seek to mitigate their effects, and will oppose any attempt to extend or expand them in the future.

Categorizing this as "reneging" is simply a lie, Jack.

But let's take a look at some of the things Jack says are actual lies.  For example, Jack ends his list with this debunked factoid:

"If you like your doctor, you can keep your doctor," he said. Post-Obamacare, 83 percent of physicians are considering quitting medicine, according to a survey by the Doctor Patient Medical Association.

Politifact looked at the survey and found out some very interesting things.

For example, it's not a poll and that, in itself, undermines the scientific credibility of its "findings."  Add on to that the fact that the survey was done by the Doctor Patient Medical Association Foundation - a group founded to oppose the health care law. Who did they send the survey to? Did the respondents know about the group when they received the survey?  Did they agree with the group's politics before starting the survey?  Then there's the return rate:

The survey was conducted by fax and online from April 18 to May 22, 2012. Of 16,227 faxes that were successfully delivered to doctors’ offices, 699, or 4.3 percent, submitted responses.

4.3% responses?  And then the methodology of the survey questions themselves:

the question actually does not mention the law. In fact, none of the two dozen questions in the poll mentions anything about it.

Instead, the question asks about "current changes," which could include not just the law, but many other factors, such as changes driven by insurance companies and hospital systems. There’s no way of knowing what specifically the respondents were referring to.

So it's a mistake to assume that all those physicians would leave their profession because of "Obamacare."

Presenting it all as if it is, is another huge lie, Jack.  You should know that.

And I didn't even get to any of the hard stuff.

Jack Kelly Sunday

Ok, so it's a day late - so sue me.

With Jack's P-G column this week he lengthens by one this list of crazie Roberts Conspiracy Theories.   As much as he might disagree with the Supreme Court decision validating the Affordable Care Act, he points out its (unintended??) consequences:

Some conservatives think the chief justice did the right thing. Not legally -- I agree with his critics that Chief Justice Roberts tortured the law to make it go where he wanted to take it -- but politically.

If the president is re-elected, it wouldn't have mattered if the Supreme Court had thrown out the health care law. He'd simply ignore the decision. (He's already ignoring the ruling that Obamacare is a tax.) The only way to restore constitutional government is to remove Barack Obama from office. I think that's why -- after siding with the conservatives on every point of law -- the chief justice strained so to find Obamacare constitutional.

See? Roberts found the law constitutional in order to make it easier for the GOP to remove Barack Obama from office!  It's all so clear.  I can see the truth now (Acts 9:18).

But think of what that says about what Jack's thinking.  Let's assume he actually believes what the GOP thinktanks are saying about "Obamacare."  For example, that it's a "job-killer" or that it "raises taxes" on Americans.

For Jack, these horrors to be visited on the American People are acceptable (for other people to suffer through, of course) as long as their presence makes it easier for Mitt Romney to win in November.

Nice to see your true colors, Jack.

ObamaCare upheld by US Supreme Court

Via SCOTUSblog:

10:13
Tom:
The bottom line: the entire ACA is upheld, with the exception that the federal government's power to terminate states' Medicaid funds is narrowly read.

10:15
Tom: Chief Justice Roberts' vote saved the ACA.

10:18
Amy Howe:
The money quote from the section on the mandate: 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.  

10:20
Amy Howe:
The court reinforces that individuals can simply refuse to pay the tax and not comply with the mandate.  

10:20
Amy Howe:
On the Medicaid issue, a majority of the Court holds that the Medicaid expansion is constitutional but that it w/b unconstitutional for the federal government to withhold Medicaid funds for non-compliance with the expansion provisions.

10:26
Lyle:
Justice Ginsburg makes clear that the vote is 5-4 on sustaining the mandate as a form of tax. Her opinion, for herself and Sotomayor, Breyer and Kagan, joins the key section of Roberts opinion on that point. She would go further and uphold the mandate under the Commerce Clause, which Roberts wouldn't. Her opinion on Commerce does not control.

While you're waiting to hear from the Supremes...

James Fallows of The Atlantic has a few choice words on our long-term coup:

Normally I shy away from apocalyptic readings of the American predicament. We're a big, messy country; we've been through a lot -- perhaps even more than we thought, what with Abraham Lincoln and the vampires. We'll probably muddle through this and be very worried about something else ten years from now. But when you look at the sequence from Bush v. Gore, through Citizens United, to what seems to be coming on the health-care front; and you combine it with ongoing efforts in Florida and elsewhere to prevent voting from presumably Democratic blocs; and add that to the simply unprecedented abuse of the filibuster in the years since the Democrats won control of the Senate and then took the White House, you have what we'd identify as a kind of long-term coup if we saw it happening anywhere else.**

You can read the whole article here.

(h/t to Spork)

From Sunday's Tribune-Review

Sorry for the lateness of this - I have been fighting a killer of a cold.

We all know how the Trib's editorial board routinely refrains from logic, from reality but some days (and yesterday was a good example) they just pop the cork on a new layer of inexact-itude.

Take a look:

The Congressional Budget Office confirms what Democrats were trying to fob off on Republicans as "reckless partisan rhetoric": ObamaCare is a jobs killer. How many? Try 800,000. Higher costs, fewer jobs, more government control. Yet again, class, it's a tutorial in what "progressivism" is all about.

Except that when you look at what CBO director Douglas Elmendorf actually said, you find that the Trib has it completely totally ass-backwards wrong.

And had they read the Wall Street Journal, they'd know that:

Speaking Thursday before the House Budget Committee, the Congressional Budget Office director estimated that ObamaCare will cause the labor force to shrink by about half a percentage point by the end of the next decade. That isn't the same as claiming that there will be 800,000 fewer jobs available, but rather, as Mr. Elmendorf said, that the law will reduce "the propensity to work." As with any other government subsidy, people receiving "free" health care won't have as much incentive to search for a job or work full time. [emphasis added]

Let's explain further. Better yet, here's the CBO itself, doing something the braintrust doesn't seem to want to do - give you clear information:

The Patient Protection and Affordable Care Act(Public Law 111-148) and the Health Care Education Reconciliation Act of 2010 (P.L. 111-152) will affect some individuals’ decisions about whether and how much to work and employers’ decisions about hiring workers.1 The Congressional Budget Office(CBO) estimates that the legislation, on net, will reduce the amount of labor used in the economy by a small amount—roughly half a percent—primarily by reducing the amount of labor that workers choose to supply.

And then:

The expansion of Medicaid and the availability of subsidies through the exchanges will effectively increase beneficiaries’ financial resources. Those additional resources will encourage some people to work fewer hours or to withdraw from the labor market.

So it's not about the jobs, but about workers. With Health Care Reform implemented fewer people would have to work that second job or do overtime just to pay for their health care. Or if they know their health insurance is solid, they might be able to retire sooner and not have to wait for Medicare to kick in. The supply of labor would be reduced - but not the number of jobs.

A huge difference the Trib blurred into a lie.

Now go back and look at what the Trib fobbed off as true. What they wrote is completely wrong and it only shows (yet again) that the braintrust must think its readership is a bunch of idiots who'll believe whatever partisan drivel plops on their doorstep every morning.

Health Care Reform Vote: A Tale Of Three Representatives

The P-G today writes about how our three local members of the House of Representatives voted on the Repealing Giving Our Jobs a Lethal Injection of Socialism That Is Poisoning Our Economy And Our Freedom Health Care Law Act.

The results are not suprising. Republican Tim Murphy voted for, Democrats Doyle and Altmire against. The P-G's opening:

The vote itself is a legislative dead end, but U.S. House Republicans on Wednesday began what they hope is a road to reshaping the new health care overhaul law with a vote to repeal it.

By a 245-189 margin, the new GOP-controlled House kept a central promise of the fall campaign, though the Democratic-controlled Senate has said it will not consider repeal and President Barack Obama has vowed to veto it.

The symbolism was nonetheless important to Republicans in setting the tone as their pledged health care work gets under way.

"Putting up the vote this way we're going to, in other words, take a roll call of members of Congress and say: 'Do you agree that there's more wrong with this bill than right?' " said Rep. Tim Murphy, R-Upper St. Clair. "Then we're going to lay that out as our marker on the field and start from there."

A large chunk of the article was devoted to Altmire. Here's why:

Mr. Altmire presented a curious case as one of several Democrats who voted against the health care overhaul law last year, then refused to back an outright repeal. Mr. Altmire, who has a background in health care as a former lobbyist for UPMC, said he still sees serious problems with the law -- but a political exercise like this isn't the way to solve them.

Conservative groups such as American Crossroads -- which spent tens of millions backing Republicans in the November elections -- have attacked Mr. Altmire and other Democratic "no" votes on the initial bill for the apparent inconsistency in not backing a repeal.

If you head over to his congressional website, Altmire explains:

I voted against the 2010 health care reform bill because I believe it is a flawed, partisan proposal that will, on the whole, do more harm than good. The law has numerous provisions that will result in higher costs for families and businesses, and it does little to correct the inefficiencies and control the costs in our current health care system. It also lacks serious quality improvement provisions that would make our health care system work better for everyone.

A paragraph later:

However, I will not waste the time and resources of the American taxpayers by engaging in a purely partisan exercise that has no chance of becoming law. Additionally, I will not diminish the health care coverage of millions of Americans by voting to repeal the positive provisions of this law that have already taken effect, including closing the Medicare prescription drug donut hole; guaranteeing health insurance coverage for children with pre-existing conditions; banning lifetime insurance caps and rescissions; and offering free preventative care for seniors. Make no mistake, a vote for complete repeal is a vote to raise out-of-pocket costs for every Medicare beneficiary and take away private health care coverage for Americans with chronic health conditions.

So in general, Altmire agrees with Murphy, that the bill does more harm than good, though he won't vote to diminish coverage, reopen the donut hole, etc.

Here's some of the type of heat Altmire is getting. From the National Review Online:

Alex Cortes, chairman of DefundIt.org, has been leading an effort by conservative groups urging these Democrats to support repeal. He released the following statement today, praising Boren and Ross:

If only their colleagues had their same intellectual consistency and recognize the common-sense reality that if you are truly against something, then you will take the actions necessary to get rid of it. Thankfully there are still several hours left before the vote and I suggest some persuasive tea time may be in order.

Cortes told National Review Online that any Democrat who opposed the original bill and didn’t vote to repeal it would be engaging in “the heart of dishonesty” and warned that every politician who opposed repeal did so at their own peril because “the American people are on our side.”

Not surprisingly, the NRO's last line is not entirely accurate. A CNN/Opinion Research Poll from late December found that while 50% of those polled opposed the Health Care Reform bill, they were not all opposed for the same reason. Oddly enough, of those opposed 13% said it was "not liberal enough." 43% were in favor of the bill.

With a bit of arithmetic, we can conclude that only 37% oppose the bill because it goes to far, while 56% (a nice majority, by the way) think it's OK or it doesn't go far enough.

Something for Congressman Altmire to think about.

Jack Kelly Sunday

In this week's Post-Gazette column Jack Kelly (a non-lawyer as far as I know) does some non-legal analysis on the recent ruling by Virginia federal district judge Henry Hudson, who found that the "individual mandate" section of the recently passed Health Care Reform as unconstitutional.

Being a non-lawyer myself, I guess I can do some non-lawyerly analysis on Jack's non-lawyerly analysis without running the risk of practicing law without a license. (Which is a very serious crime, or so I am told.)

After parroting some poll data from the GOP-leaning Rasmussen, Jack shows his stuff:

The same day a federal district judge in Virginia ruled the key provision in Obamacare, which requires Americans to buy health insurance or pay a hefty fine (2.5 percent of annual income), is unconstitutional.

Two other federal district judges, one in Michigan and another in Virginia, have ruled the individual mandate is constitutional.

The issue is whether the authority granted to Congress by the Constitution "To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes" permits Congress to require private citizens to buy a particular product.

Good for Jack for pointing out the two judges who ruled the individual mandate as constitutional.

Here's how Jack on the legal basis of Hudson's findings:

But the Supreme Court tortured the Commerce Clause in the 1940 case of Wickard v. Filburn, in which it held Congress could regulate how much wheat an Ohio farmer could grow on his own land to feed his own livestock. This was interstate commerce, the Court "reasoned," because if Filburn didn't grow his own wheat, he'd have had to buy wheat to feed his livestock, and he might have bought it from out of state.

Wickard v. Filburn is a vile precedent which should be overturned. But courts respect precedents, even bad ones.

It leads directly to the next question: What did those other two judges have to say? One, Judge Norman Moon of the Western District of Virginia, addresses whether the Commerce Clause can regulate "inactivity":

Far from "inactivity," by choosing to forgo insurance, Plaintiffs are making an economic decision to try to pay for health care services later, out of pocket, rather than now, through the purchase of insurance. As Congress found, the total incidence of these economic decisions has a substantial impact on the national market for health care by collectively shifting billions of dollars on to other market participants and driving up the prices of insurance policies.

The other, Judge George Steeh of the Eastern District of Michigan, had a little more:

There is a rational basis to conclude that, in the aggregate, decisions to forego insurance coverage in preference to attempting to pay for health care out of pocket drive up the cost of insurance. The costs of caring for the uninsured who prove unable to pay are shifted to health care providers, to the insured population in the form of higher premiums, to governments, and to taxpayers. The decision whether to purchase insurance or to attempt to pay for health care out of pocket, is plainly economic. These decisions, viewed in the aggregate, have clear and direct impacts on health care providers, taxpayers, and the insured population who ultimately pay for the care provided to those who go without insurance. These are the economic effects addressed by Congress in enacting the Act and the minimum coverage provision.

So what's this Wickard v. Filburn case? It's not just about wheat and the rights of an individual farmer. From the decision:

Commerce among the states in wheat is large and important. Although wheat is raised in every state but one, production in most states is not equal to consumption. Sixteen states on average have had a surplus of wheat above their own requirements for feed, seed, and food. Thirty-two states and the District of Columbia, where production has been below consumption, have looked to these surplus-producing states for their supply as well as for wheat for export and carryover.

And:

It is well established by decisions of this Court that the power to regulate commerce includes the power to regulate the prices at which commodities in that commerce are dealt in and practices affecting such prices. One of the primary purposes of the Act in question was to increase the market price of wheat and to that end to limit the volume thereof that could affect the market. It can hardly be denied that a factor of such volume and variability as home-consumed wheat would have a substantial influence on price and market conditions. This may arise because being in marketable condition such wheat overhangs the market and if induced by rising prices tends to flow into the market and check price increases. But if we assume that it is never marketed, it supplies a need of the man who grew it which would otherwise be reflected by purchases in the open market. Home-grown wheat in this sense competes with wheat in commerce. The stimulation of commerce is a use of the regulatory function quite as definitely as prohibitions or restrictions thereon. This record leaves us in no doubt that Congress may properly have considered that wheat consumed on the farm where grown if wholly outside the scheme of regulation would have a substantial effect in defeating and obstructing its purpose to stimulate trade therein at increased prices.

Taken in aggregate, Congress can, under he Commerce Clause (Article I, Section 8, Clause 3) and the Necessary and Proper Clause (Article I, Section 8, Clause 18) regulate who much a farmer can grow in his/her own farm. Vile or not, that's what the Supreme Court said.

But is Judge Hudson's reasoning beyond that sound? As I am still not a lawyer so let's check in with some (h/t mediamatters.org). Here's Orin Kerr from the conservative/libertarian Volokh Conspiracy:

I’ve had a chance to read Judge Hudson’s opinion, and it seems to me it has a fairly obvious and quite significant error. Judge Hudson assumes that the power granted to Congress by the Necessary and Proper Clause — “To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers” — does not expand Congress’s power beyond the Commerce Clause itself. The key line is on page 18:

If a person’s decision not to purchase health insurance at a particular point in time does not constitute the type of economic activity subject to regulation under the Commerce Clause, then logically an attempt to enforce such provision under the Necessary and Proper Clause is equally offensive to the Constitution.

Judge Hudson does not cite any authority for this conclusion: He seems to believe it is required by logic. But it is incorrect. The point of the Necessary and Proper clause is that it grants Congress the power to use means outside the enumerated list of of Article I powers to achieve the ends listed in Article I. If you say, as a matter of “logic” or otherwise, that the Necessary and Proper Clause only permits Congress to regulate using means that are themselves covered by the Commerce Clause, then the Necessary and Proper Clause is rendered a nullity. But that’s not how the Supreme Court has interpreted the Clause, from Chief Justice Marshall onwards. Indeed, as far as I know, not even the most vociferous critics of the mandate have suggested that the Necessary and Proper Clause can be read this way.

Given that existing Supreme Court caselaw gives the federal government a fairly straightforward argument in support of the mandate under the Necessary and Proper clause, Judge Hudson’s error leads him to assume away as a matter of “logic” what is the major question in the case. That is unfortunate, I think.

We can agree, I should think, that Hudson's decision isn't as solid as Jack would like us to think.

I think he'd have us believe the party's over, let's call it a day. But if Hudson's opinion is all he has so far, the game is far from over.

Politifact's Biggest Lie Of 2010

We all know what it is, don't we?

Health Care Reform is a government takeover of the healthcare system.

From Politifact:

In the spring of 2009, a Republican strategist settled on a brilliant and powerful attack line for President Barack Obama's ambitious plan to overhaul America's health insurance system. Frank Luntz, a consultant famous for his phraseology, urged GOP leaders to call it a "government takeover."

"Takeovers are like coups," Luntz wrote in a 28-page memo. "They both lead to dictators and a loss of freedom."

The line stuck. By the time the health care bill was headed toward passage in early 2010, Obama and congressional Democrats had sanded down their program, dropping the "public option" concept that was derided as too much government intrusion. The law passed in March, with new regulations, but no government-run plan.

But as Republicans smelled serious opportunity in the midterm elections, they didn't let facts get in the way of a great punchline. And few in the press challenged their frequent assertion that under Obama, the government was going to take over the health care industry.

PolitiFact editors and reporters have chosen "government takeover of health care" as the 2010 Lie of the Year. Uttered by dozens of politicians and pundits, it played an important role in shaping public opinion about the health care plan and was a significant factor in the Democrats' shellacking in the November elections.

They point out that they are making no judgement about whether the Health Care Reform bill was a good idea or a bad idea. They're just saying that the statement "HCR is a government takeover" is "simply not true."

Here's what they said:

PolitiFact reporters have studied the 906-page bill and interviewed independent health care experts. We have concluded it is inaccurate to call the plan a government takeover because it relies largely on the existing system of health coverage provided by employers.

It's true that the law does significantly increase government regulation of health insurers. But it is, at its heart, a system that relies on private companies and the free market.

Republicans who maintain the Democratic plan is a government takeover say that characterization is justified because the plan increases federal regulation and will require Americans to buy health insurance.

But while those provisions are real, the majority of Americans will continue to get coverage from private insurers. And it will bring new business for the insurance industry: People who don"t currently have coverage will get it, for the most part, from private insurance companies.

Consider some analogies about strict government regulation. The Federal Aviation Administration imposes detailed rules on airlines. State laws require drivers to have car insurance. Regulators tell electric utilities what they can charge. Yet that heavy regulation is not described as a government takeover.

And politifact is not alone in calling this lie a lie. Here's factcheck.org:

Despite the fact that the federal health insurance plan (a.k.a. the “public option”) is now gone from the bill, Republicans and conservative groups have continued to claim that the bill institutes a system like the one in the United Kingdom, or Canada, or otherwise amounts to a government takeover. It doesn’t. A pure government-run system was never among the leading Democratic proposals, much to the chagrin of single-payer advocates. Instead, the bill builds on our current system of private insurance, and in fact, drums up more business for private companies by mandating that individuals buy coverage and giving many subsidies to do so.

So when we read:

Constitutional questions have dogged the health care bill since its introduction. But rather than address these issues head on, supporters of the legislation have shrugged them off. Speaker Nancy Pelosi, when asked where the Constitution grants the power to impose an individual mandate to buy insurance, famously replied, "Are you serious?"

This is the same tactic being used by defenders of the federal takeover of health care in response to the lawsuit against the new law.

We know that this is a lie - there is no federal takeover of health care.

By the way, the writer of that above passage, Nathan Benefield is the director of policy research at the Commonwealth Foundation. The same Commonwealth Foundation that's received about $2.2 million over the past 2 decades or so from the foundations controlled by Richard Mellon Scaife (including $50,000 in "start up" funds in 1988).

No matter who pays for it, it's still a lie.