Adam Serwer

The ACA Mandate Isn't "Unprecedented"

The latest health care ruling from the 11th Circuit, striking down the individual mandate, uses the word "unprecedented" to describe the mandate more than a dozen times*. The opinion concludes that "It cannot be denied that the individual mandate is an unprecedented exercise of congressional power." The 2-1 ruling is significant in that it marks the first Democratic appointee to vote to strike down the mandate, and the second Republican to vote to uphold it. It also upheld the rest of the law, striking down only the mandate. The thing is that the individual mandate is um, quite " precedented ." The opinion rationalizes the precedent set in Wickard that Congress has the authority to regulate activity that has "substantial economic effect on interstate commerce." The 11th Circuit judges, like the other opinions before them, argue that people not purchasing health insurance "have not made a voluntary choice to enter the stream of commerce," which is an odd argument, both because not...

Relitigating Torture

I have to admit I'm confused by this reader email posted by Ben Wittes on the recent Donald Rumsfeld torture civil cases , which he says " totally represents my own uncertainty" on the matter. On the one hand, there are some pretty carefully-thought-out legal arguments as to why the lawsuits should be dismissed: Extension of Bivens is not favored, interference with military decision-making, etc. On the other hand, I can’t escape the feeling that this is one of those issues where there is a narrow chain of legal reasoning, each step of which is perfectly reasonable, leading you to a conclusion that seems completely untenable, namely that an American citizen who was detained arbitrarily, held incommunicado and without access to counsel for as long as 9 months, tortured, and then released without charges has no remedy. But I equally can’t escape the feeling that this is a case that is not about damages for a wronged individual but about exposing and relitigating the policies of the last...

Due Process In Last Night's Debate

Debates are often a decent barometer of ideology, since candidates fall all over themselves to ingratiate themselves to their respective bases. Republicans have long since coalesced around a position of denying individuals accused of terrorism due process, but it's still remarkable to watch Republican presidential candidates reject due process out of hand. Here's Minnesota Congresswoman Michele Bachmann, disagreeing with Texas Rep. Ron Paul about trying suspected terrorists in civilian court: Well, because, simply, terrorists who commit acts against United States citizens, people who are from foreign countries who do that, do not have any right on our -- under our Constitution to Miranda rights. We've also seen that Guantanamo Bay has yielded significant information. In fact, we've learned that that led to the capture and the killing of bin Laden. This is a tool that we need to have in order to be able to prosecute the new type of war, the new type of warfare, and the new type of...

Fallout

The shadow war in Somalia . Basic economics . Can teachers overcome poverty? Eleven angry men .

Bachmann And Lincoln

There's a pretty vigorous discussion thread on my Bachmann post , but I want to follow up with a couple of points. Some folks argued that the fact that Bachmann endorsed the authors in question doesn't inherently mean she shares their distorted view of slavery. This is a mistake, as Ryan Lizza explains that to whatever degree she agrees with each individual point, she certainly agrees with the idea that slaveovers who refused to free their slaves might do so for "benevolent" reasons. Bachmann’s comment about slavery was not a gaffe. It is, as she would say, a world view. In “Christianity and the Constitution,” the book she worked on with Eidsmoe, her law-school mentor, he argues that John Jay, Alexander Hamilton, and John Adams “expressed their abhorrence for the institution” and explains that “many Christians opposed slavery even though they owned slaves.” They didn’t free their slaves, he writes, because of their benevolence. “It might be very difficult for a freed slave to make a...

Obama's Iftar Message

President Obama hosted an Iftar dinner celebrating the end of the Muslim holy month of Ramadan yesterday, and used it as an opportunity to urge tolerance and recognize the contributions of Muslim Americans. At one point in his speech, he pointed out that, contrary to conservatives claiming that Muslims collectively attacked America on 9/11, there were Muslim Americans on the plane that crashed into the towers: Muslim Americans were innocent passengers on those planes, including a young married couple looking forward to the birth of their first child. They were workers in the Twin Towers -- Americans by birth and Americans by choice, immigrants who crossed the oceans to give their children a better life. They were cooks and waiters, but also analysts and executives. There, in the towers where they worked, they came together for daily prayers and meals at Iftar. They were looking to the future — getting married, sending their kids to college, enjoying a well-deserved retirement. And...

All Communism Everything

Matthew Yglesias wonders if Jonathan Podhoretz is too stupid to understand that North Korean style communism and American style democracy are the only political systems available: My baseline assumption with this kind of thing is that we’re looking at dishonesty, but having read Podhoretz’s opus on the greatness of George W Bush it seems plausible to me that he’s actually unaware of the relevant facts. Suffice it to say, however, that there are a number of democratic political systems in the world that vary substantially from the American model without being Communist dictatorships. They have such a system in, for example, Canada. Germany offers an example of a somewhat different model. France has yet another model. But apparently if Norman Podhoretz is your dad and you can be editor of Commentary without knowing any of that. Podhoretz' intelligence aside, it's an established conservative rhetorical trope that there is no sunlight between robust social insurance and totalitarianism...

Perry's Pals: Neocons And Sharia Panickers

Josh Rogin takes a look at Rick Perry's foreign policy brain trust, and quotes a Perry adviser who says he'd be a "hawk internationalist." "He will distinguish himself from other Republicans as a hawk internationalist, embracing American exceptionalism and the unique role we must play in confronting the many threats we face," one foreign policy advisor with knowledge of Perry's thinking told The Cable. "He has no sympathy for the neo-isolationist impulses emanating from some quarters of the Republican Party." Here's the list Rogin compiles: The experts that he has reached out to include former Undersecretary of Defense for Policy Doug Feith, former NSC strategy guru William Luti, former Assistant U.S. Attorney and National Review columnist Andrew McCarthy, former Pentagon official Charles "Cully" Stimson, former Deputy Assistant Secretary of Defense for Europe Daniel Fata, former Pentagon China official Dan Blumenthal, the Heritage Foundation's Asia expert Peter Brookes, and former U...

Tomming, Ctd

Following up on yesterday's conversation about Cornel West and Tavis Smiley, Randall Kennedy reviews Touré's new book urging an embrace of "post-blackness," meaning "we are [like President Barack Obama] rooted in, but not restricted by, Blackness." Kennedy's book Sellout posited that communities--particularly historically oppressed ones--have a right to police their boundaries, because doing so can apply coercive pressure on those doing harm to the community. His argument held the caveat that the burden of justifying that pressure should be large and that excommunication, the harshest punishment, should only be reserved for the worst offenses--such as black people who argue that blacks are genetically inferior. In this vein, his book offered a strong defense of Justice Clarence Thomas as someone who, in his own way, was deeply concerned about black advancement and therefore wasn't worth of the label "sellout.' I agree. Reviewing Touré's book however, Kennedy points out that any...

Fallout

As you can probably tell from my twitter feed, I was following Tavis Smiley and Cornel West around earlier today so I wasn't able to post as much. But here are some end of the day links: Superman, New Deal Liberal . The AJC loses Cynthia Tucker. Conservative blames British riots on diversity, but America is much more diverse . Administration is deeply confusing on Secure Communities.

Pajamas Media Documents Change At DoJ

In the latest in a series of conservative unintended advertisements for change at the civil rights division of the Justice Department, Pajamas Media have announced that through the results of a Freedom of Information Act Request, they've determined that "There are so many aggressive attorneys who previously worked at the ACLU, NAACP, Legal Aid, or at the Lawyers’ Committee for Civil Rights that it is a wonder these organizations have anyone left on their staffs." Matt Gertz notes that, ostensibly, this is meant to prove that the Obama administration is as politicized as the Bush administration was when it screened out applicants to the civil rights division who were insufficiently conservative, the leadership exchanged racist jokes over email, and enforcement of most voting protections for minorities declined . More comedy: Pajamas Media offers J. Christian Adams, who was hired back when Bush appointees didn't want to hire ""lefties" or "big libs," folks he saw as "adherents to Mao's...

Sympathetic Plaintiffs

Dahlia Lithwick l ooks at the plaintiffs in one of the Donald Rumsfeld torture civil suits and writes: That it was a brave and right choice may not be enough to rescue this case if and when it ever comes to a trial. (The case may still be appealed to the full Seventh Circuit or to the Supreme Court.) It will be a challenge for the plaintiffs to show what they say they can prove. But the case, even as it stands today, should suffice to remind the rest of us that this isn't a case about foreigners at Guantanamo but a case about a Navy veteran caught up in a series of errors in the field. This case isn't about the rights of an enemy soldier detained on a battlefield with a weapon in his hand. It's about the rights of brave whistle-blowers who were tortured by bureaucratic mistake. If you don't believe the war on terror is migrating into your backyard, this case is confirmation. If you don't think the state-secrets doctrine will be trotted out to protect the government's abuse of innocent...

Not Tomming

Comedian Steve Harvey has words with Tavis Smiley and Cornel West: The Original King of Comedy, Family Feud host and suit designer didn't stop there. After reading Smiley's request that Obama join him for "a roundtable for two or three days on poverty," Harvey joked, "Who in the hell got 2-3 days for your ass? I ain't got time to sit down with your monkey behind for two, three days, let alone the President of the United States. We got three wars going on, the economy crashing and we going to sit down with Tavis ass for three days?" Harvey ended the rant insisting that somebody is paying Smiley and West to produce the Poverty Tour, asking "where are you getting the money for these buses?" But not before performing a skit where he said he was the president of UTLO.org (which stands out for "Uncle Tom Look Out") and that he spotted an "uncle tom" driving a bus. I didn't have any patience for this sort of argument when West was making it, and I don't have any for it now. Being black and...

Fallout

Nostalgia as a species of laziness. Texas closes a prison for the first time ever. Conservatives mad DoJ is hiring civil-rights lawyers to work on civil rights. Feminist societies have more fun.

"Let Britain Burn"

John Derbyshire may have had a few before deciding to comment on the riots in Britain: Why does the British government not do its duty? Because it is the government of a modern Western nation, sunk like the rest of us in trembling, whimpering guilt over class and race. Through British veins runs the poisonous fake idealism of “human rights” and “sensitivity,” of happy-clappy multicultural groveling and sick, weak, deracinated moral universalism — the rotten fruit of a debased, sentimentalized Christianity. Totally with him on the "deracinated moral universalism" of "sentimentalized Christianity." We should get rid of that. The problem is, won't some of Derbyshire's comrades be a little squeamish about worshiping a black guy ?

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