Obama supports Bush tax cuts, to a point

President Obama is asking Congress to extend the Bush tax cuts, except for taxpayers who make over $250,000.

So will Democrats now admit that President Bush had a good idea?

Should Republicans oppose the proposal because it will raise taxes on wealthier Americans?  Or will Democrats kill or will the president veto the measure if it includes everybody?

Will this help the recovery or just increase the deficit?

How do you think this plays out?

 

Obama Calls for Extending Middle-Income Tax Rates – Businessweek.

Institutionalism vs. Constitutionalism

As I keep saying, there are different kinds of conservatism.  Michael Gerson makes that point in his discussion of Supreme Court Justice John Roberts’ ruling on Obamacare:

His health-care ruling did expose a division between two varieties of judicial conservatism — institutionalism and constitutionalism — that can lead to very different outcomes.

Roberts has emerged as the great institutionalist, concerned primarily about the place of the Supreme Court in American political life. In this view, the court maintains its power by exercising it sparingly — deferring whenever possible to the legislative branch. Institutionalism embodies a temperamental conservatism — a commitment to continuity, humility and prudence.

The main constitutionalists on the court are Antonin Scalia and Clarence Thomas, focused on the rigorous application of the words of the founding document. In this view, the meaning of the text is primary, whatever the political consequences of applying it. Constitutionalism is often accompanied by an understandable complaint: If the conservative response following every period of liberal activism is humility and continuity, then the ideological ratchet turns only leftward.

My natural sympathies are with institutionalism as an antidote to judicial arrogance. Donning a black robe does not assume or create a superior knowledge of public policy. Roberts’s desire to defer, particularly on a divisive issue in the middle of a presidential election, is the right tendency, the correct Burkean instinct.

But judges are also not hired as political philosophers, Burkean or otherwise. Their legitimacy comes from a credible application of the law. And the outcome of the health care case came down to one point of law: Roberts’s interpretation of the statute as a constitutional tax rather than an unconstitutional mandate. In his ruling, Roberts admits this view is hardly the most obvious one: “The question is not whether that is the most natural interpretation of the mandate, but only whether it is a ‘fairly possible’ one.”

The problem is that Roberts’s interpretation is not fairly, or even remotely, possible. If the law had been written in the Roberts version — as a regressive federal tax on the uninsured — there is no chance it would have passed Congress. More to the point, the law that Roberts describes would have covered a different number of the uninsured. Academic studies indicate that people respond differently to tax penalties than they do the legal mandates. “When the imperative to buy insurance,” notes Yuval Levin, “is instead presented as a choice between two options, more people will likely choose the cheaper option (which, for almost everyone, will be paying the tax rather than buying the coverage).”

Why did Roberts not account for this policy distinction? The most natural interpretation is that he didn’t know anything about it. Which is precisely the point. Roberts is not a health policy expert. His clever reinterpretation of the health law would actually change its outcome. This is not an alternate reading but an alternate universe.

Even in a short time, Roberts’s decision has not worn well. What initially seemed wise now smacks of mere cleverness — less a judge’s prudence than a lawyer’s trick. To find the health-care law constitutional, Roberts reimagined it. It was outcome-based jurisprudence, even if the intended outcome was institutional harmony. It was an act of judicial arrogance, even in the cause of judicial deference. And it raises deeper concerns. Unmoored from a reasonable interpretation of the law, institutionalism easily becomes the creed of the philosopher-king — hovering above the balance of powers, tinkering benevolently here and there, instead of living within the constraints of the system.

via Michael Gerson: John Roberts’s alternate universe – The Washington Post.

Lots of good lines here:  Outcome-based jurisprudence.  Obamacare as a tax on the uninsured.  Fairly-possible interpretations.

I don’t know that a Burkean kind of conservative–one who is protective of traditions, institutions, and culture–would really defer to such a recent decision that has not yet become a tradition.

Still, what do you think of this philosophical dichotomy?  Where else do you see it?

“I love my country, it’s the government I’m afraid of”

Tourist shops here in the D.C. area sell a t-shirt that says, “I love my country, it’s the government I’m afraid of!”  (sic, the comma splice)   I believe it was first worn by liberals opposed to George W. Bush.  Now it’s being worn by conservatives opposed to Barack Obama.  (I present this as evidence for my assertion that both liberals and conservatives have become cynical when it comes to patriotic ideals.)

Now I understand the point.  It’s possible to love America with its purple mountain majesties, its history, its people, and its ideals while being utterly opposed to the government.  That’s a commendable distinction.  At the same time, in a democratic republic, the people choose their leaders and elect their government, so there is going to be a connection between the country and the government.  There is a fine line between hating a nation’s government and hating the nation.

In the older patriotism of my childhood, which I talk about in that other post, there was a palpable distinction–parallel to the rejection by orthodox Christianity of the Donatist heresy–between the office and the person who holds the office.  Critics respected the office of the presidency or of a Senator or Congressman, even if they attacked a particular office holder.  A person might complain about politicians in Washington, but not “Congress” as a whole.

Today. . . .I don’t know.  I worry about the preservation of our institutions if hardly anyone has any respect for them.

I suppose some people are afraid of their country–thinking the American people are essentially racist, plutocratic, and oppressive– but love their government, which they want to protect them from society.  Is there a similar danger in the sentiment on the t-shirt?

More than two parents

A bill before the California legislature would let children have more than two parents:

State Sen. Mark Leno is pushing legislation to allow a child to have multiple parents.

“The bill brings California into the 21st century, recognizing that there are more than Ozzie and Harriet families today,” the San Francisco Democrat said.

Surrogate births, same-sex parenthood and assisted reproduction are changing society by creating new possibilities for nontraditional households and relationships. . . .

Under Leno’s bill, if three or more people who acted as parents could not agree on custody, visitation and child support, a judge could split those things up among them.

SB 1476 is not meant to expand the definition of who can qualify as a parent, only to eliminate the limit of two per child.

Under current law, a parent can be a man who signs a voluntary declaration of paternity, for example. It also can be a man who was married and living with a child’s mother, or who took a baby into his home and represented the infant as his own.

Leno’s bill, which has passed the Senate and is now in the Assembly, would apply equally to men or women, and to straight or gay couples.

Examples of three-parent relationships that could be affected by SB 1476 include:

• A family in which a man began dating a woman while she was pregnant, then raised that child with her for seven years. The youth also had a parental relationship with the biological father.

• A same-sex couple who asked a close male friend to help them conceive, then decided that all three would raise the child.

• A divorce in which a woman and her second husband were the legal parents of a child, but the biological father maintained close ties as well.

SB 1476 stemmed from an appellate court case last year involving a child’s biological mother, her same-sex partner, and a man who had an affair with the biological mother and impregnated her while she was separated temporarily from her female lover.

via California bill would allow a child to have more than two parents – State Politics – The Sacramento Bee.

Obamacare punishments as a tax

Thanks to Todd, who helps me with the technical side of this blog, for stepping in with the news emergencies while I was away.  You’ve discussed how the Supreme Court upheld Obamacare in its insurance purchase mandate.  Litigation on other Obamacare issues is getting under way.  (There are now 23 lawsuits against the contraception and abortifacient mandate.)

What do you think about conservative Chief Justice Robert putting the best construction on Obamacare by construing its penalties as a tax?  The reasoning was that people who refuse to buy health insurance will face a penalty, but it is being collected not by a court, as with a fine, but by the Internal Revenue Service.  Therefore, it is as if a tax has been imposed, which you can get out of if you buy health insurance.

The bill itself never calls the penalties a tax, nor did its authors or President Obama himself (who specifically said it was not a tax).

Is this logical?  Is this a proper function of a court opinion, to construe a bill despite its wording so that it can pass constitutional muster?

Some people are praising Justice Robert for his Solomonic compromise.  Some conservatives are saying that at least he ruled against the overly-broad application of the Commerce Clause, which can subject just about everything to government supervision since just about everything has economic implications.  This was, in fact, the basis of the administration’s defense of Obamacare, that Congress can make laws regarding interstate commerce.  The court ruled that forcing people to buy something is not commerce, as such.  But since that argument was found specious, Justice Robert kindly supplied an argument of his own that he could accept, even though the administration’s lawyers didn’t make it.   Some Republicans are saying that, at least, defining Obamacare as a tax can allow them to score political points by attacking President Obama and the Democrats as having raised taxes.

But this strikes me as a very dangerous ruling.  What other behavior could the Executive Branch require using the tax code to enforce fines apart from the safeguards of the Judicial Branch?  Could General Motors get bailed out by imposing a tax on everyone who does not buy a Chevy?

Also, does anyone know whether the Affordable Health Care Act was initiated in the House of Representatives, rather than the Senate?  Tax bills have to begin in the House.  Maybe this bill did, coincidentally, have that origin, even though it was never presented as a tax bill.  If not, since the Supreme Court declared it a tax bill, I’d think it would have to have been.

At any rate, this strikes me as a crisis not only with the Constitution–with the executive, legislative, and judicial branches all mixed up and infringing on each other–but with language itself, creating new meanings (“tax”) for existing words (“penalty”).

The Wall Street Journal: A Vast New Taxing Power – WSJ.com.

And the ruling on the health care law is…

Today, the Supreme Court will announce its decision on the 2010 health care bill. According to the official schedule, the ruling won’t have occurred by the time this post goes live — and it certainly hasn’t happened as I actually write this post on Wednesday night — so I don’t have a lot to say about the decision right now. But presumably you all will, as events unfold.

If you’re reading this before the decision has been announced, you can read SCOTUSblog’s helpful summary of what exactly we’re waiting for. Law junkies can also follow SCOTUSblog’s live coverage of the event throughout the day – they’ve even created a backup site in case their main site gets flooded with viewers.

So, did the Supreme Court get it right?


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