Batman, Brief Sniffing, and the HOTS…
Posted July 6, 2012on:
Good Friday morning Widdershin friends. If you are anything like me a holiday falling midweek throws me into a cosmic time warp somewhere between a Star Trek episode and Groundhog Day.
In any event, I was planning on a “big thought” Friday, but given that I recently purchased a new box of highly absorbent Q-tips my big thoughts have suddenly winnowed away, so let’s try a Whitman’s Sampler of lesser, but nonetheless, insignificant thoughts from your unnecessarily verbose scribe.
You say Tomato, I say Tax
Since the Supreme Court ruled last week on the Affordable Care Act and then beat a hasty retreat for undisclosed locations, there have been all manner of dustups. I’ll deal with a couple. First, there’s Eric Fehrnstrom’s statement that Governor
Romney didn’t agree with the mandate being a tax. Eric is a longtime Romney confidant being something like Alfred to Romney’s Batman. Upon further reflection, Governor Romney promptly threw Eric under the Batmobile and stated quite unequivocally that he now believed the mandate was a tax. Eric Fehrnstrom was the spokesmorman who had previously stated that positions taken in the primary were like an Etch-A-Sketch — after the primary you just turned them over, shake them, and they magically disappear. I’m imagining the good Mr. Fehrnstrom upside down being given a good shaking like a two-year old bottle of ketchup.
Quite simply, there is absolutely no difference if the mandate is called a tax or a penalty because the language of the ACA is exactly the same for both — not one jot or tittle’s difference. Ezra Klein asks the definitive question of, “Who cares what you call it, it’s all the same.”
Wake Up and Smell the Briefs
While we’re at it, let’s turn the luminescent wattage of the Bat Signal on the crazy conspiracy theories around Justice Roberts’ decision regarding the Affordable Care Act. His decision has bunched more underwear than a bargain bin at Victoria’s Secret. To hear the neo-cons, you would have thought they were being sent to Lorena Bobbitt’s snip and tuck boutique with the Chief Justice being called everything from a traitor to a drug addled zombie.
There’s nothing sinister or even revelatory about Roberts’ decision. Here’s the down and dirty — Supreme Court Rule 14 says a party must clearly state all questions of law to be heard before the Court. This statement of issues isn’t hidden, it is one of the very first pages in all briefs before the Supreme Court. The issue of the mandate being a penalty versus a tax was certified and before the Court from the very first day. It isn’t unusual when the government is a party to a Supreme Court case that alternative theories are pled — meaning, if you don’t like the Column A choice, would you like to consider something from Column B or Column C. To be highly legalistic here, there’s a Supreme Court maxim that has been around since God was a boy that says if there are two readings of an act of Congress, the Court must use the one that is constitutional to uphold the law.
Enunciated first in 1928 by Justice Oliver Wendell Holmes in Blodgett v. Holden it stands for the proposition of judicial restraint and deference to the legislative branch. Sound familiar? It is the same refrain you constantly hear from the same chorus of neo-cons each time they fail to agree with a Supreme Court decision.
This concept isn’t “legal rocket science,” it is taught in first year Con Law — so all those pundits who mewled about a conspiracy or Justice Roberts being a traitor to the conservative cause, you have the Column A choice — they are stupid, Column B choice — they need better teevee ratings, or Column C — they are Sean Hannity (see Column A).
Texans Don’t Get the HOTS
In a little reported item from the Lone Star State, the Texas Republican Party passed a resolution against teaching critical thinking skills in Texas schools. In the platform plank, the statement said critical thinking leads to questioning authority and calling into question long-standing beliefs. While that is their stated resistance to the idea of young people “boning” up on critical thinking, I think it had more to do with the acronym representing (H)igher (O)rder (T)hinking (S)kills since obviously they didn’t want Texan kids getting the HOTS.
This is significant when you consider textbook publishers more often than not tailor their textbooks to the curriculum of the Texas School Board. Texas provides 48 million textbooks in any given year and essentially controls 46 or 47 other states in terms of textbook content. For several years the Texas School Board was chaired by an ultra-conservative dentist who among other memorable statements said, “Somebody’s gotta stand up to the experts.” He has since been defeated, but this textbook purification crusade continues so as to destroy the “liberal myths” of separation of church and state, evolution, and any number of other heretical thoughts espoused by Satan’s own handy men cleverly called scientists. This crusade is about controlling the minds of young people today since tomorrow they could be controlling government — I’m not kidding, that is the stated goal.
Holy Coincidence Batman
To round out the day with yet another Batman reference, I thought it appropriate to mention that Justice Scalia has done his best Burgess Meredith impression of the Penguin and waddled across First Street, NE to address the Tea Party Caucus in Congress. Even though they were having fish for lunch, it is very unusual for a sitting Supreme Court Justice to do something so partisan. I mention this because in the Arizona immigration case, Justice Scalia waxed on at length about the parade of horribles that immigration had visited upon Arizona without so much as a single citation to support his accusations. (As of yet, there is no citing protocol for Fox News.) Much like earlier in this Supreme Court term when he squawked from the bench about the “Cornhusker Kickback” that was neither in case before the Court nor ever actually enacted by any legislation.
It would ruffle more than a few of Justice Scalia’s feathers to know that as of last year, there were estimated to be 360,000 illegal immigrants in Arizona, which is less than 6 percent of the Arizona population — below the estimated average illegal immigrant population in the United States. So much for Arizona bearing the brunt of illegal immigration, as was pointed out in the Slate article by Judge Richard Posner of the 7th Circuit Court of Appeals.
Justice Scalia to conservatives is often called brilliant, scary smart, and an intellect of heretofore unknown heights, but to paraphrase the adage, “in the land of the blind, a one-eyed man is king,” — in the land of wing nuts, a tool can be king.
This is an “all skate” open thread.
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