[Guest post by Aaron Worthing; if you have tips, please send them here.]

Rahm Emanuel has said he wanted to run for Mayor of Chicago.  Only there was one small problem: he had to be a resident of Chicago for a year prior to taking office.  And he had stayed in Washington, D.C. long enough to put that into doubt.  Recently I saw where Emanuel tried to claim that despite his lack of, you know, presence, he was still a resident for purposes of the statute.  Now this is not as laughable as you might think.  Many times when the law talks about your domicile or residency, it is not about where you presently live, but where you intend to live, long term.  For instance, I have been allowed to do something similar for tax purposes, claiming to be a Texan through my years in law school in Connecticut and even working outside of Texas and thus being able to avoid state income taxes.  So depending on how the statute has been written, that might pass muster.  I won’t pretend to know.

But even if Rahm is right on the law, there is one teensy-weensy problem: the facts.  We will let NBC Chicago explain:

When Rahm Emanuel originally filed his 2009 Illinois tax return, he indicated he was only a “part-year resident’’ of the state that year, since he had moved to Washington D.C. to serve as President Obama’s chief of staff.

But after he decided to return to Chicago to run for mayor this fall — and after several people challenged whether he was eligible to run based on the fact that he hadn’t lived in the city for a full-year prior to the Feb. 2 election — he filed an amended return, according to the Chicago Sun-Times.

“The original return’s statements regarding part-year residency were not accurate,” Emanuel and his wife wrote in a return filed Nov. 24. “The amended returns make clear that we were full-year residents of Illinois in 2009. … We are also full-year residents of Illinois in 2010.”

So, even if his “I intended to return” theory works as a matter of interpretation, he has a serious factual problem.  One can look at the original tax return as an admission that he was no longer a resident of Chicago, and his belated amendment as nothing more than an attempt to cover up his mistake.

Of course that all assumes that this determination will be decided by applying the facts to the law, a dubious proposition in Chicago politics.

[Posted and authored by Aaron Worthing.]

[Guest post by Aaron Worthing; if you have tips, please send them here.]

*Please note, I am being sarcastic.

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In Ex Parte Bain, the Supreme Court said quite logically that:

It is never to be forgotten that, in the construction of the language of the Constitution here relied on, as indeed in all other instances where construction becomes necessary, we are to place ourselves as nearly as possible in the condition of the men who framed that instrument.

Justice Breyer would have us believe that he was doing that when he dissented from the decisions extending the right to bear arms:

If you look at the values and the historical record, you will see that the Founding Fathers never intended guns to go unregulated, Supreme Court Justice Stephen Breyer contended Sunday.

Appearing on “Fox News Sunday,” Breyer said history stands with the dissenters in the court’s decision to overturn a Washington, D.C., handgun ban in the 2008 case “D.C. v. Heller.”

Breyer wrote the dissent and was joined by Justices John Paul Stevens, David H. Souter and Ruth Bader Ginsburg. He said historians would side with him in the case because they have concluded that Founding Father James Madison was more worried that the Constitution may not be ratified than he was about granting individuals the right to bear arms.

Madison “was worried about opponents who would think Congress would call up state militias and nationalize them. ‘That can’t happen,’ said Madison,” said Breyer, adding that historians characterize Madison’s priority as, “I’ve got to get this document ratified.”

Therefore, Madison included the Second Amendment to appease the states, Breyer said.

“If you’re interested in history, and in this one history was important, then I think you do have to pay attention to the story,” Breyer said. “If that was his motive historically, the dissenters were right. And I think more of the historians were with us.”

What a load of crap.  First, if we are going to talk about things other than the words of the Second Amendment, you will lose this debate, Stevie.  The idea that our founders, having only recently resisted the British by arms, would turn around and surrender those same weapons to the Federal Government is ahistorical claptrap.  The founders were specifically afraid that the Federal Government would lead to tyranny, and the notion that they would be afraid of the Federal Government turning to tyranny and then disarm in the face of that fear is lunacy.

(more…)

[Guest post by Aaron Worthing; if you have tips, please send them here.]

Update: Legal Insurrection comes through with the opinion.  You have to use that annoying scribd thing, but beggars can’t be choosers.  No analysis yet, but you can read for yourself.

Update (III): Some analysis.  See below.  Update (IV): Now full analysis.

Literally just got a breaking news email from CNN: “Federal judge rules unconstitutional parts of Obama health care law. Justice Department expected to appeal.”  This is almost certainly the Richmond Virginia case, and not the Liberty University case from a week or so ago.

But this is extremely prelimary and we should take it with a grain of salt.  There was a significant issue as to whether any of the health care law could be severed from the main, and that is the kind of issue that reporters miss.  I mean not just out of bias, but they innocently miss this kind of issue.  Come back for updates when I get my meaty paws on the opinion, or at least more thorough reporting.

And of course this is the first victory after two district court defeats, so let’s not get too excited.  It does increase the chances of a Supreme Court appeal, although I suspect it was already virtually certain to end up there anyway.

Update: Let me thank all the people who emailed me about this.  I saw on my own, but I still appreciate it.

Update (III): I will go silent on the issue until I finish my lunch and finish reading all of it, but it looks like the mandate and anything referencing the mandate are severed out of the law.  I have literally no idea how much that is.  The relevant ‘graphs:

Finally, in evaluating severability, the Court must determine whether in the absence of the severed unconstitutional provision, Congress would have enacted the statute…. [This] element of the analysis is difficult to apply in this case given the haste with which the final version of the 2,700 page bill was rushed to the floor for a Christmas Eve vote. It would be virtually impossible within the present record to determine whether Congress would have passed this bill, encompassing a wide variety of topics related and unrelated to heath care, without Section 1501. Even then, the Court’s conclusions would be speculative at best. Moreover, without the benefit of extensive expert testimony and significant supplementation of the record, this Court cannot determine what, if any, portion of the bill would not be able to survive independently.

Therefore, this Court will hew closely to the time-honored rule to sever with circumspection, severing any “problematic portions while leaving the remainder intact.”…  Accordingly, the Court will sever only Section 1501 and directly-dependent provisions which make specific reference to Section 1501.

Which I suspect means that many provisions that were financially dependant on the mandate will remain in place.  So if this ruling stands, then the law will have to amended or repealed to avoid significant stress on the health insurance industry.  As in, if they don’t do something, the industry might go bankrupt.  I have said before that I don’t believe that this is the right approach to severability.

The concern, however, is that with a divided Congress and a President devoted to this law, will they be able to do anything to stop this in time?

And if nothing happens and the health insurance industry is bankrupted, would that be in the left’s eyes a bug, or a feature?

Update (IV): I read the opinion, and there is little that is surprising here.  There is the familiar debate about whether the penalty is a tax or not, and the analysis is very similar to Judge Vinson’s analysis in the Florida case, which I discussed here.  And then there is the usual question of whether inactivity can be characterized as economic activity.  This time the court said, no, but the analysis was a little bit interesting.  The court seemed to concede that under some strained definition of the terms, a refusal to buy health insurance was “economic activity,” but then brushed it aside with one word: “traditional.”  In other words, sure you could come up with some slick argument that this is really activity, but traditionally this is not how the term has been understood.  I think given the hash the Supreme Court has made out of the commerce clause, this is about as much as we could hope for a court doing without actually overturning Wickard v. Filburn (which held that growing crops for personal consumption was interstate commerce).

Also, I have long said (but I don’t think here at Patterico’s) that the courts are also concerned that Congress should not be allowed to do anything it wants under the commerce clause.  There has to be a logical limit to their power.  And that concern is echoed in the opinion in this line: “This broad definition of the economic activity subject to congressional regulation lacks logical limitation and is unsupported by Commerce Clause jurisprudence.”

But bluntly I am really not sure this decision is good news if it is upheld exactly as is.  I have long said that without the mandate, health insurance companies will go bankrupt.  For instance, consider the rule with pre-existing conditions.  Health insurance, like all other forms of insurance, depends on cultivating a large number of policy holders whose costs are less than their payments.  Yes, your insurance company might cover a few doctor’s visits and a few pills, but the real purpose in health insurance is to guard you against a serious illness that costs you far more than your premium.  So its almost like as if me and 99 of my closest friends said this, “we know that in the next year one of us will get really seriously ill, and will not be able to afford to pay the bills.  And if that happens, the rest of us will pay your bill.”

It’s the same concept as with fire insurance.  Most of us will never have a fire in their house.  But we buy fire insurance because we know it could happen to us, and if it does, we have this agreement that provides for compensation in that event.

But rules like telling insurance companies that they cannot exclude people for pre-existing conditions makes hash out of the entire concept.  Why would any person rationally choose to pay a monthly fee for insurance if they can just pay nothing, and wait until they get sick and then buy health insurance?  Its like asking to buy fire insurance after your house burned down and demanding that they cover the fire you just had.  It makes no economic sense.

The mandate was vital to making sure that these kinds of provisions didn’t bankrupt the insurance companies.  I mean, that is not just my opinion.  That is what Sebelius argued to the court:

The core of the Secretary’s primary argument under the Commerce Clause is that the Minimum Essential Coverage Provision is a necessary measure to ensure the success of its larger reforms of the interstate health insurance market.s The Secretary emphasizes that the ACA is a vital step in transforming a currently dysfunctional interstate health insurance market. In the Secretary’s view, the key elements of health care reform are coverage of those with preexisting conditions and prevention of discriminatory premiums on the basis of medical history. These features, the Secretary maintains, will have a material effect on the health insurance underwriting process, and inevitably, the cost of insurance coverage. Therefore, without full market participation, the financial foundation supporting the health care system will fail, in effect causing the entire health care regime to “implode.” Unless everyone is required by law to purchase health insurance, or pay a penalty, the revenue base will be insufficient to underwrite the costs of insuring individuals presently considered as high risk or uninsurable.

So what happens if the mandate is gone?  Well, then Congress must either repeal the law or come up with another way to balance the books, and Obama must go along.  And what if they can’t get this done?  Things are not exactly going well on the taxation front, are they?  So what if they don’t pass it.

Oh, and what if the entire health insurance industry implodes?  Will the Democrats hope to argue that this proves that we need a public option?

And could that have been the idea all along?

My tendency is to avoid the most paranoid answer to these kinds of questions.  I have argued before that their conduct seems much more like inattention.  I mean you do not pass the “_____ Act of _______” because you doing a careful job of doing things.  So, I am more likely to think the Democrats were like Phil Hare and they didn’t care about the constitutionality of this law, and if they gave it any thought at all, they actually convinced themselves they could do it.  But you have to wonder if they were really that clueless.  Or were they, as Dustin once dubbed Elena Kagan, “stupid like a fox.”

And even if they didn’t intend for this situation to occur, will enough liberals in Congress seek to take advantage of it to destroy the health insurance industry?

Mind you, this impending doom is used by the Obama administration to argue that it is within their power.  I, on the other hand, believe that we should presume that Congress does not intent to intentionally bankrupt an industry and therefore I believe it justifies striking down most, if not all, of Obamacare.  But the court didn’t agree with either perspective, and picked a middle course that is in some ways actually worse than the two extremes.

I would further add that I have previously pointed out that this law also violates the right to boycott under the first amendment, another good reason to strike it down and for my money the real reason why Obamacare is doomed is because it would undermine Lawrence v. Texas.

So, in short, today I am not entirely happy.  What we need is either for Congress or the Courts to knock down most if not all of this ugly thing and not just one part.

[Posted and authored by Aaron Worthing.]

[Guest post by Aaron Worthing; if you have tips, please send them here.]

This is not as risible as the LA Times and the well-named Congressman Weiner saying that keeping the tax rate the same = deficit spending, but it’s pretty bad.  And in some ways it is worse because it is Charles Krauthammer.  I mean normally Krauthammer is not a Weiner.  I think he is typically brilliant and a basically honest broker.  But his column last Friday is a bit much.

Barack Obama won the great tax-cut showdown of 2010 – and House Democrats don’t have a clue that he did. In the deal struck this week, the president negotiated the biggest stimulus in American history, larger than his $814 billion 2009 stimulus package. It will pump a trillion borrowed Chinese dollars into the U.S. economy over the next two years – which just happen to be the two years of the run-up to the next presidential election. This is a defeat?

If Obama had asked for a second stimulus directly, he would have been laughed out of town. Stimulus I was so reviled that the Democrats banished the word from their lexicon throughout the 2010 campaign. And yet, despite a very weak post-election hand, Obama got the Republicans to offer to increase spending and cut taxes by $990 billion over two years. Two-thirds of that is above and beyond extension of the Bush tax cuts but includes such urgent national necessities as windmill subsidies.

So you catch that?  The Republicans fought for and won legislation that would not have raised taxes.  And Krauthammer not only treats this as a tax cut, but as a stimulus.  And further, this was all something that supposedly Obama wanted. As though Obama hadn’t revealed himself to be in favor to increased taxation for several years running, and not just on the “rich” who earn more than $250K.

Krauthammer goes on:

After all, these are the same Republicans who spent 2010 running on limited government and reducing debt. And this budget busting occurs less than a week after the president’s deficit commission had supposedly signaled a new national consensus of austerity and frugality.

Yes, they ran on those two things.  And keeping the tax cuts.  You forgot that part, Chuck.  Indeed, one of the best ways to limit government is to cut taxes, because the less money the government has, the less it can do..

And this assumes that raising taxes necessarily increases revenue.  You are free to believe that, Charles, but it would be helpful to state that assumption plainly.  Some of us tend to think that money is best invested in the people, rather than the government.

And then he demonstrates that he literally doesn’t understand the Tea Party movement at all:

While getting Republicans to boost his own reelection chances, [Obama] gets them to make a mockery of their newfound, second-chance, post-Bush, Tea-Party, this-time-we’re-serious persona of debt-averse fiscal responsibility.

Sure, because what the Tea Party was all about, was raising taxes, right Chucky?

Seriously, who exactly do you think you are fooling, Chaz?  I mean look, I get it.  You don’t like supply side economics.  You don’t buy into the laffer curve.  And if that is how you feel, say it.  Make the case that the best way to reduce the debt is by raising taxes.  But don’t pretend this is 1) violating party principles, or 2) a victory for Obama or 3) a violation of Tea Party principles.  Because that is just pure bull___.

Well, at least that is one theory to explain this completely “wtf?!” column.  The other is that he is hoping that all the liberals who read his columns will suddenly decide that this is a good deal and vote for it.  Consider this passage toward the end:

Where, after all, does the left go? Stay home on Election Day 2012? Vote Republican?

No, says the current buzz, the left will instead challenge Obama for the Democratic nomination. Really now? For decades, African Americans have been this party’s most loyal constituency. They vote 9 to 1 Democratic through hell and high water, through impeachment and recession, through everything. After four centuries of enduring much, African Americans finally see one of their own achieve the presidency. And their own party is going to deny him a shot at his own reelection?

Not even Democrats are that stupid. The remaining question is whether they are just stupid enough to not understand – and therefore vote down – the swindle of the year just pulled off by their own president.

When you read this you start to really wonder whether he is engaged in reverse psychology.  He is saying, “I am mad at republicans for passing this, and democrats would be stupid not to take this deal.”  But maybe in fact he likes the deal and is hoping democrats will be convinced by columns like his own to pass it.  “If Krauthammer, a true conservative hates it, it must be good!”

But of course that depends on his entire column being a lie, a bit of dishonest performance art, which seems like a questionable approach for writing a column.  As a general rule of thumb, I believe in politics being carried out honestly, having our disagreements openly, and not hiding it behind layers of B.S.  Hence, why I am calling Krauthammer on this column, whatever his motivation in writing it.

[Posted and authored by Aaron Worthing.]

The AP seemingly catches Sarah Palin being overly concerned with appearances when she is supposed to be worried about cholera victims:

In case you can’t read the caption, it says: “Dieu Nalio Chery / AP Photo. Former Alaska Gov. Sarah Palin, center, has her hair done during a visit to a cholera treatment center set up by the NGO Samaritan’s Purse in Cabaret, Haiti, Saturday Dec. 11, 2010. Palin arrived Saturday in Haiti as part of a brief humanitarian mission in an impoverished nation struggling to overcome post-election violence and a cholera epidemic. At right, Palin’s husband, Todd Palin.”

And at left, the hairdresser.

The picture was designed to make liberals choleric, and it worked.

The Daily Mail’s story was titled Ready for her close-up… Sarah Palin lands in Haiti (well, she wants to look just right for those poor cholera-stricken residents).

But my favorite reaction is from the Huffington Post’s Michael Shaw, in a post titled Reading the Pictures: Palin Does Haiti Cholera: How’s My Hair? (and, Did AP Lend a Curl?). What is interesting is that Shaw sensed the media bias — but decided that it meant that the Palins had really behaved badly towards the media:

If I find the fantastically clever Sarah Palin to be one of the shallowest and blatantly self-serving politicians, err, political celebrities I’ve ever seen, it doesn’t stop me from taking pause upon seeing these AP shots from Franklin Graham’s cholera treatment center in Haiti.

Damn right it’s revolting seeing Sarah getting her hair made up like this field hospital is her movie set . . .

And then, the multiple shots of Sarah sanitizing and washing her hands suggests the former Gov is primarily concerned, above all humanitarian else, about catching something.

There are two questions I can’t quite answer, however. 1.) Compassion notwithstanding, could these exact same images have been created if it was Biden, Bill Clinton, Hillary or Nancy Pelosi moving around this camp with media in tow over the same afternoon? 2.) How much was it the Palin team’s behavior, attitude or reputation that so encouraged these AP photographers (one or both local?) along with AP photo editors to suddenly drop the typical, everyday play-along (since we all get the difference between this vs. this) and deliver these scathing photo op-defying pictures of “the Sarah show?”

You have to love the mind-bending pretzel logic. If the media was unfair to Sarah Palin, it must show that Sarah Palin was being a big huge jerk to the media.

Because, why else would the media be unfair to Sarah Palin??

Here’s the problem. The sleuths at Free Republic figured out, based on clothing, that the “hairdresser” was Sarah’s daughter Bristol (h/t Eric Blair):

There she is, second from the right. That’s right: Bristol Palin was the hairdresser, simply fixing an out of place strand of hair on her mom’s head.

Which, of course, the photographer would have known. But deliberately chose not to reveal.

What media bias?