Only We the People Can Break the Stranglehold of the NRA

Monday, December 24th, 2012
NRA Congress

Members of Congress have ranked the National Rifle Association (NRA) as the most powerful lobbying organization in the country.  The Institute for Legislative Action (ILA), the lobbying arm of the National Rifle Association of America, opposes gun-control legislation, calling instead for stricter enforcement of existing laws such as prohibiting convicted felons and violent criminals from possessing firearms and increased sentencing for gun-related crimes.

The lobby opposes any measure which it believes conflicts with the Second Amendment rights of gun owning citizens and as a matter of policy, the NRA endorses any incumbent who supports its positions and vigorously opposes incumbents and candidates who are against them.  Members of Congress rank the National Rifle Association as the most powerful lobbying organization in the country.  Their inability to fashion any sensible gun regulation confirms the influence the NRA has over members of Congress.

Even the attempted assassination of President Reagan did not spur Congress to examine gun regulations.  It took twelve years for Congress to consider and pass gun regulations.  In 1993, President Bill Clinton signed  the Brady Handgun Violence Prevention Act, a law requiring prospective gun owners to pass a federal background check before buying a gun.  In 1994, a Democratic-controlled Congress passed the Federal Assault Weapons Ban.  The law expired in 2004 and multiple attempts to renew it have all failed.

After the Columbine massacre in 1999, the Senate approved S. 254, the Violent and Repeat Juvenile Offender Accountability and Rehabilitation Act of 1999.  The bill included provisions on background checks with a mandatory three-day waiting period for background checks at gun shows and safety locks  While the bill did passed, the Senators who sponsored the bill; senators who had received backing from the gun lobby, then voted against it.   In the House chamber, Republican leaders weakened the bill then killed it with a vote of 280 to 147.  It’s a game of charades that intentionally gives a misleading public perception.

In an attempt to mount a legislative response to Citizens United, Democrats unveiled the Disclose Act.  Among other things, it would have required groups that purchased campaign ads to disclose the identity of their donors.  But when the National Rifle Association alerted Congressmen that it would mobilize a campaign to kill the bill unless the disclose provision was dropped, Congress wrote a provision of exemptions, in order to accommodate the NRA.  While, they heavily support Republicans, there are Democrats who receive their support as well.

Hopefully, in the wake of the Newtown, Conn. massacre, the NRA’s political power is facing new challenges. Will NRA-backed Congressmen seriously consider a legislative response to gun violence? Probably not, because politicians are more concerned about reelection than the welfare of the country or the desires of the majority of its citizens.

The NRA boasts a membership of 4 million members they can activate to oppose legislation.  It occurs to me that voters who believe there should be some constraint on gun availability far outnumber the membership of the NRA.  We need to make our representatives understand that they will not be reelected if they don’t honor the desires of the majority.  Remember that we united and beat Citizens United with all its money and influence…we can also break the stranglehold of the NRA.

An American Murder Timeline

In the wake of the Sandy Hook tragedy, there is yet another call for gun control regulations, but if past is prologue, the public will soon forget and go on to other events.  For sadly, in this country, our citizens are murdered every single day…one by one… and multiple murders happen with regularity. We must make sure this time is different and we achieve real change in reducing gun violence.

The Brad Blog gives a comprehensive timeline of the multiple killings that have occurred in this country since 1966.  The following, is a synopsis of that list.  For more information and to learn what weapons were used and the disposition of the killer, please go to The Brad Blog.

Aug. 1, 1966   Austin, TX. Charles Joseph Whitman, a 25 year-old engineering student and former Marine, killed 13 people and an unborn child, wounded 32.

July 12, 1976   37-year old Edward Charles Allaway, a paranoid schizophrenic custodian at Cal State Univ. Fullerton, killed seven people and wounded two others.

July 18, 1984   James Oliver Huberty opened fire inside the McDonald’s Restaurant in San Ysidro. He killed 21 and injured 19.

Aug. 20, 1986   Patrick Henry “Crazy Pat” Sherrill, a disgruntled US Postal Service employee in Edmond, OK murdered 14 co-workers.

Jan 17, 1989   Patrick Edward Purdy opened fire inside the Cleveland Elementary School in Stockton, CA  killing eight and wounding 30.

Sept 14, 1989   Joseph T. Wesbecker killed 8 people and wounded 12 in Louisville, KY.

June 18, 1990   James Edward Pough murdered nine and wounded four employees and customers of the General Motors Acceptance Corp. in Jacksonville, FL.

Oct. 16, 1991   George Hennard of  Killeen, TX murdered 28 people and wounded 20.

July 1, 1993   Gian Luigi Ferri entered an office building at 101 California St. in San Francisco, where he murdered eight people and wounded six before committing suicide.

Dec 7, 1993   Colin Ferguson killed six people and wounded 19 on a Long Island commuter train.

Feb. 9, 1996  Clifton McRay of Ft Lauderdale gunned down five former co-workers.

Oct 1, 1997   After he murdered his mother with a kitchen knife, Luke Woodhan of  Pearl, MS killed three and wounded seven.

March 24, 1998   Mitchell Scott Johnson and Andrew Douglas Golden killed four female students and a teacher and wounded nine students and another teacher at a Middle School in Arizona.

May 21, 1998   Kip Kinkel of Springfield, murdered his parents,  two students and wounded 25.

April 20, 1999   High school students Eric Harris, 18, and Dylan Kleebold, 17, opened fire at Columbine H.S. near Littleton, CO, killed 12 classmates and a teacher and wounded 26 others.

July 29, 1999   A day trader murdered thirteen people, his wife and two children and nine inside two brokerage houses in Atlanta, GA.

Nov. 2, 1999   Byran Ayesugi entered the Xerox building in Honolulu, HA where he murdered seven people.

March 20, 2000   Robert Wayne Harris killed five people in Irving, Texas.

April 28, 2000   Immigration lawyer Richard Baumhammers, killed five people in Pittsburgh, PA.

Dec. 26, 2000   Michael “Mucko” McDermott, in Wakefield, MA shot and killed seven co-workers.

Feb. 5, 2001   William D. Baker, a former employee of Navistar International Corp. in Melrose Park, IL  killed five and injured four.

March 5, 2001   Charles ‘Andy’ Wiilliams, a 15-year old high school student killed two classmates and injured 13 others in Santee, CA

March 21, 2005   16-year old Jeffrey Weise drove to the Red Lake HS where he shot and killed seven people on campus and wounded five others.

Jan. 30, 2006    Jennifer San Marco shot and killed a neighbor in Goleta, CA,  and six others.

March 25, 2006   28-year old Kyle Aaron Huff killed six people and wounded two in Seattle.

Oct. 2, 2006   Charles Carl Roberts IV, murdered five Amish girls and injured five others at an Amish school in Lancaster County, PA.

April 16, 2007   32 people died when undergraduate Seung-Huyi Cho went on a rampage at Virginia Tech

Dec. 5, 2007   19-year old Robert A. Hawkins murdered eight people and wounded four in six minutes inside the Westroads Mall in Omaha, NE.

Feb. 14, 2008   Steven Kazmierczak entered a lecture hall at No. IL Univ. where he murdered five and injured 21.

March 10, 2009   Geneva County, AL: 28-year old Michael Kenneth McLendon, murdered 10 people, including two children.

April 3, 2009   Jiverly Antares Wong murdered eight people in Binghamton, NY.

Nov. 5, 2009   Nidal Malik Hasan, a U.S. Army Major, who was serving as a psychiatrist, killed 13 people and wounded 29 others inside Fort Hood, a military installation near Killeen, TX.

August 3, 2010   34-year old Omar Shariff Thornton murdered eight people inside a beer distribution warehouse in Manchester, CT.

Jan. 8, 2011   22-year old Jarold Lee Laughner killed six people, including a judge and a nine-year old child, and wounded 13 others in a supermarket parking lot near Tuscon, AZ.

April 2, 2012   One L. Goh killed 7 people and injured 3 at the Oikos University in Oakland, CA.

May 30, 2012   Ian L. Stawicki murdered four people inside a Univ. of WA-Seattle café, then shot another woman at a town hall and stole her SUV.

June 9, 2012   22-year old Desmonte D. Leonard, allegedly shot and killed three people, including two football players, and wounded three others, at Auburn University.

July 20, 2012   James Eagan Holmes entered the Century Theater in Aurora, CO, set off tear gas grenades before murdering 12 people and injuring 58.

Aug. 5, 2012   Wade Michael Page murdered six people and wounded four others inside a Sikh Temple in Oak Creek, WI.

Sept. 27, 2012   In Minneapolis, MN, Andrew J. Engeldinger killed five people and wounded three others.

Dec. 14, 2012   20-year old Adam Lanza murdered 27 people, including 20 children, aged six and seven, inside the Sandy Hook Elementary School in Newtown, CT .

Dec. 21, 2012   44-year old Jeffrey Lee Michael shot and killed three people and wounded a state trooper in rural PA.

Are You Registered to Vote?

Thursday, September 27th, 2012

By Josh Marks

Tuesday was National Voter Registration Day. We are now only 40 days to the most important election of our lifetime. This is not just about reelecting President Obama, but electing moderates and progressives at every level of government who will work with President Obama in a constructive way instead of obstructing everything and tearing down Obama.

Democrats need to retake control of the House of Representatives and keep control in the Senate. There are also important elections at the state, city and local level. President Obama not only needs a Congress that will work with him, but state governors as well (see Chris Christie, Bob McDonnell, Rick Scott and Scott Walker as examples of the types of failed leaders we need to kick to the curb across the country).  Not to mention the many important ballot measures such as California’s Clean Energy Jobs Act, Prop 39, which today received an endorsement from the Los Angeles Times; and Los Angeles County’s Measure J to start seven transit and eight highway improvement projects in five years by extending the half-cent transportation sales tax voters approved in 2008. Measure J is predicted to accelerate 250,000 jobs over the next decade. Winning Progressive has provided a comprehensive two part rundown of some of the most important state ballot initiatives. Click here for part 1 and click here for part 2.

According to the National Voter Registration Day website, 3,144 volunteers have registered 175,430 voters with 238 of 1,206 organizations reporting so far. That is great. That is democracy in action. That is how we defeat Republican voter suppression efforts and attempts by right-wing billionaires like Sheldon Adelson to buy this election for Mitt Romney.

Are you registered to vote? If you aren’t, there is still time. Click here to register.

If you think your vote doesn’t matter then you are wrong. People are dying around the world for the precious right to vote. It is not something to take for granted. You say there isn’t a difference between the Democrats and Republicans? Wrong again. There is a mountain of difference between Obama and Romney. How did supporting Ralph Nader (including me) over Al Gore work out? Do you think Gore would have been exactly like Bush and done nothing about climate change, put two wars on a credit card and blow Bill Clinton’s budget surplus to pass tax cuts for the rich and create record deficits? How different would America and the world look like right now if Gore had won that election over Bush?

Let’s not have regrets. Let’s reelect Barack Obama and moderates and progressives who will work with him to solve our many challenges.

If you still need convincing, there is an organization called Our Time that is mobilizing to register young Americans to vote through online social media channels and by harnessing the power of the entertainment industry community. Their goal is to register at least one million young Americans to vote in this election through their free online voter registration tool. Here is Steve Carell with a serious threat for you if you don’t register to vote:






Repelling the “Nanny State” with “Nanny Judges”

Tuesday, July 10th, 2012

(By Fay Paxton, cross-posted at The Pragmatic Pundit)

If I hear that right-wing narrative about how the federal government and its do-gooder programs are holding America back one more time, like Rick Santorum, I’m liable to puke.  “If only government would get out of the way, along with its regulations, its taxes and its social safety net.. “ they sing.   They spout platitudes about bygone days, a rose-colored social construct, and the sanctity of the Constitution.  The irony is, the very politicians and citizens who can lay claim to middle and upper class status (and fight so ferociously to withhold it from everyone else) can do so only because of a government “New Deal” that lifted their parents or grandparents from the ravages of the Great Depression.

The Tea Party and Justice Broccoli invoke the Tenth Amendment and “states rights”, but, in fact, the Constitution represents the shift of power from the states to the national government.  It eradicates states’ sovereignty which had existed under the Articles of Confederation.  The goal of the Constitutional Convention was to create a federal system that could address national problems and make the country competitive with Europe.  It also sought to protect the new nation from outside forces as well as those within.  Unlike the idiots who represent our government today, the Founders who drafted the Constitution, quite sensibly saw danger in disunity.

The Tenth Amendment states simply that: 

“The powers not delegated to the United States by the  Constitution, nor prohibited by it to the States, are reserved to the States respectively or to the people.” 

Now think about it, what exactly does that mean?  Then consider that the very first Article of the Constitution, the touchstone of our nation,  states,  “ALL LEGISLATIVE POWERS herein granted shall be vested in a Congress of the United States.”  So what then are the powers not delegated to the Congress by the Constitution?  The Tenth Amendment is nothing more than a seed of peace, added to appease the State’s Rights advocates, who even today are still fighting the Civil War and that includes Justice Broccoli, et al.

I speak of the Tenth Amendment because the tortured interpretation of its meaning places us where we find ourselves today.  It is the basis for the “laboratories of democracy” concept that many refer to regarding healthcare.  Never mind that we’ve already had healthcare experiments.  In 1994 Kentucky enacted reforms regarding preexisting conditions, but without an individual mandate. Kentucky was forced to repeal the reform when insurance costs rose so steeply insurers pulled out of the market altogether. Initiatives introduced in New York and New Jersey faced similar problems.  While, in Massachusetts, where reform was coupled with an individual mandate, the system has worked.  How many laboratories do we need?

And finally, there’s that pathetic whine about “loss of liberty”.  A decision that Congress has the power to enact the individual mandate speaks only to whether the government has the power to require citizens to participate in health insurance.  Nothing more, nothing less. The framers gave Congress the power to address problems of national scope that could not adequately be left to the states. Healthcare is precisely such a problem. One that has been broached by both Democratic and Republican presidents for nearly a century.  Clearly, were states up to the task, we would not have this dilemma.  The same can be said of the Republicans, who now have ALL the answers, but apparently had none when they occupied the House, Senate and White House from 2001 to 2007.  They should change their name to the Reactionaries.

My friend argues that if the government can tell us to buy health insurance, they will soon tell us we must buy an electric car or place solar panels on our homes.  An asinine theory, for we have a choice to purchase a car or not, to buy a house or not. Illness, an accident or debilitating disease is not a choice.  Besides, the individual mandate is aimed at people who fail to acquire insurance, and then cannot pay the cost of their own health care when they need it. That cost is ultimately borne by the rest of us. The Congressional Budget Office estimated that in 2008 the uninsured shifted $43 billion of health care costs to those of us who are covered.

Have you noticed that those who yell loudest are already insured and are therefore not affected by the new law?  Whatever the case, absolutely nothing in the Constitution even remotely guarantees a right to be a free rider and to shift the costs of one’s health care to others.

According to Justice Broccoli,  “If every person comes within the Commerce Clause power of Congress to regulate by the simple reason that he will one day engage in commerce, the idea of a limited Government power is at an end.”

Congress plainly can tax for the purpose of providing health insurance. It does so already, through Medicare and Medicaid. Of course, Medicare contributions are a tax, not a purchase.  Or is it?  Isn’t it a purchase of insurance?  Whatever, to my way of thinking, an obligation to pay has the same effect whether we call it a tax, purchase, fee, fine, penalty or contribution. In fact, Medicare is even worse than the Affordable Care Act, because it requires an investment over a lifetime, that God forbid, one might not live long enough to collect.  But of course, Medicare forces us to buy health insurance from the government, rather than from private insurers, even though the option is available. In the final analysis, the problem, solution, intent and end result are the same.

The four justices said people who don’t want health insurance are “quite simply not participants in that market, and cannot be made so (and thereby subjected to regulation) by the simple device of defining participants to include all those who will, later in their lifetime, probably purchase the goods or services covered by the mandated insurance.”

This ignores the very purpose and idea of insurance.  It provides  protection against a possible eventuality.  Medicare presumes that people will reach age 65 and need medical attention.  An employed 22 year-old is not exempt because they refuse to project 43 years into the future.  Consequently, in that same vein, the  Medicare mandate legislates “inactivity” for 43 years. Would it really be erroneous to suggest that Medicare “purchases” future healthcare coverage?  And since the 22 year-old cannot actually benefit from the purchase, can the purchaser be considered “inactive”? Such knit-picking analogies could go on forever.

Justice Broccoli wrote:  “Indeed, the main objection many have to the Mandate is that they have no intention of purchasing most or even any of such goods or services and thus no need to buy insurance for those purchases.”

Despite proclamations about Justice Broccoli’s superior intellect, this is far-flung reasoning.  People require medical care and in fact die, at every stage of life.  The question is not whether one wants it, but whether it is needed.  One may not want a vaccination, afterall who actually plans to contract polio, yet it is mandated none the less.  Such a statement indicates that he was less worried about the interpretation of the Constitution and the economic viability of the nation than he was about the boundaries of government authority.

The argument  that the framers could not possibly have envisioned a congressional power to force purchases is upended by the fact that in 1798, Congress required seamen to buy hospital insurance.  Some believed the Justices felt the Merchant Marine law outdated, but when giving his snide dissent to the immigration law, Justice Broccoli had no problem reaching all the way back into the caverns of abolitionists.

More importantly, the Justices initially determined they could hear the case because the mandate did not represent a tax.  Only to turn full circle and determine the mandate could only be legitimate because it is a tax.  But wait!  If the mandate is a tax, how does the court have the right to pass judgment at all before it goes into effect?  This is the kind of insidious legal beagle double-speak one should expect to hear at a bond hearing.  Instead of hallowed halls of deliberation, the Supreme Court sounds more like  “Let’s Make a Deal” with Justice Roberts assuming the role of Monty Hall.

I see absolutely nothing heroic or commendable about the Robert’s decision. The justices ignored precedent, Congress’s right and duty to regulate and secure the economic welfare of the nation,  and the Constitution in favor of an ideology that is entrenched in the defunct Articles of Confederation.    I do not accept that any of them had serious doubts about the Constitutionality of the minimum coverage provisions of the Affordable Care Act, but were simply determined to reinterpret the limits of the Commerce Clause, undermine the Federal government and who knows, perhaps even this President.  So it came down to, you give me the Medicaid that Conservatives mortally despise and I’ll give you the mandate.

People who shudder at the prospect of the nation becoming a “nanny state” should be equally concerned when “nanny judges” tell us what laws we can write.

Will Voters Punish Republicans for Punishing the American People?

Thursday, July 5th, 2012

By Josh Marks

Republicans are the problem. That is the conclusion of the excellent new tome “It’s Even Worse Than It Looks: How the American Constitutional System Collided With the New Politics of Extremism” by congressional scholars Thomas E. Mann and Norman J. Ornstein. Mann is a liberal from the Brookings Institution and Ornstein is a conservative from the American Enterprise Institute, so they can hardly be accused of a partisan agenda.

“It’s Even Worse Than It Looks” labels today’s GOP as an “insurgent outlier” in American politics that “contributes disproportionately to its dysfunction.” The Republican leadership made it clear from day one President Obama took office that their mission was to make sure he spends only one term in the White House. Then in 2010, the House of Representatives was overtaken by right-wing extremists with a take-no-prisoners approach to (un)governing.

Anti-government Republicans have a strategy to “starve the beast” with damaging cuts to the public sector so the federal government has a difficult time of doing their job. They want the American people to lose faith in Washington institutions and it appears to be working given the low approval ratings of Congress. The mainstream media contributes to the anti-Washington sentiment by trying to be “fair and balanced” and blaming both sides for the dysfunction rather than squarely aiming at the Republicans for their relentless filibustering obstructionism.

So it is quite clear that for the past nearly two years, Republicans in Congress have put President Obama, congressional Democrats and by extension the American people through hell by refusing to even consider legislation that would put people back to work. Teaching and national service positions remain unfilled. Construction workers sit at home while infrastructure projects are idle. Global warming continues on a dangerous course while many Republicans refuse to even acknowledge the reality of man-made climate change let alone attempt legislation to tackle the problem.

But will the average voter punish the Republicans for punishing them? Historically, when times are tough there is the urge to “throw the bums out of office.” Mann and Orenstein provide a dire warning if we want to find our way out of the current dysfunction. First they  warn that “voters often treat elections as referendums on the performance of the party of government,” meaning that this gives Republicans an incentive to obstruct President Obama’s agenda because they cynically plan on the American people blaming Obama for the economy.

There is also the danger that swing voters who don’t pay close attention to the everyday workings of Congress and how the Republicans have made every little decision into an epic battle, will “simply bet that times will improve with different leaders.” This is what happened in 2010. The economy was (unrealistically) not improving fast enough so many voters chose Tea Party Republicans hoping something, anything different would make things better. Instead it made things worse.

Thankfully, the book is not all doom and gloom. Mann and Orenstein are actually optimistic that today’s deeply dysfunctional political situation will change. They go over specific proposals such as expanding the vote (and fighting Republican-led efforts to restrict the vote), modernizing voter registration, moving election day from Tuesday to the weekend so it is easier to get to the polls, and following the Australian system by making attendance at the polls mandatory.

There are many other excellent ideas, such as restoring majority rule in Congress and limiting filibusters, but the most immediate change needs to be made within the Republican Party and by the American voter. The authors argue that change must come from within the GOP. The hard swing to the right must be countered by an uprising from pragmatic moderates and centrists who used to have more of a say in the Republican Party but now look in horror at the uncompromising extremists who have taken over the GOP.

The longer term fix is a transition to a Westminster-style parliamentary system that “provides a much cleaner form of democratic accountability than the American system.” More importantly in the short term regarding this November’s election, the authors provide the following recommendation to voters:

“Punish a party for ideological extremism by voting against it. (Today, that means the GOP.) It is a surefire way to bring the party back into the political mainstream.”

SCOTUS and the ACA: A 9-0, 1-3-1-4, 5-4, 5-4, 3-2-4 Decision

Saturday, June 30th, 2012

(By NCrissie B)

The media reporting a 5-4 Supreme Court decision upholding the Affordable Care Act is not wrong, but it’s not exactly right either. In their 193-page decision, the Court weighed several issues: whether the case was premature under the Tax Anti-Injunction Act, whether the individual mandate was authorized by the Commerce, Necessary and Proper, or Taxing and Spending Clauses, and whether the Medicaid expansion was a legitimate inducement or an unconstitutional coercion of state action. The votes were different on each issue, and those differences may be significant in future cases.

Was the case premature under the Tax Anti-Injunction Act? NO (9-0)

The Tax Anti-Injunction Act (TAIA), first passed in 1867 and reenacted in 1954, prohibits courts from blocking the collection of taxes enacted by Congress. Instead, individuals must first pay the tax. Then, if they have legal grounds to object, they may petition the IRS for a refund and file a lawsuit if the IRS does not respond. Thus, a tax cannot be challenged in court until it has been paid.

As mechanism for enforcing the individual mandate is a “penalty” paid to the IRS, and as neither the mandate nor the “penalty” take effect until 2014, no one has yet paid that “penalty.” Some legal scholars argued that – because the “penalty” looks a lot like a “tax” – the individual mandate could not be challenged until the “tax” was due and paid, in 2014. The Obama administration did not raise this defense, but the Court solicited briefs from other parties and considered the issue.

Chief Justice Roberts held that as the TAIA was enacted by Congress, Congress has the authority to decide whether the TAIA will apply to a law. Congress expresses such decisions by using or not using “tax” and related words in drafting a law. As Congress did not term the individual mandate “penalty” a “tax” – Chief Justice Roberts held – Congress did not intend the TAIA to apply to that provision and the challenges to the ACA were not premature. No Justices dissented.

Was the individual mandate authorized by the Commerce, Necessary and Proper, or Taxing and Spending Clauses? NO (1-3-1-4), NO (5-4), YES (5-4)

The Obama administration claimed the individual mandate was authorized by the Commerce Clause, the Necessary and Proper Clause, and/or the Taxing and Spending Clause. Note that the Court did not have to find the individual mandate was authorized by all three or even two of these three clauses. Any one would suffice. The Court split differently on each clause:

    • Commerce Clause: NO (1-3-1-4)Chief Justice Roberts held that while Congress has long regulated the supply of goods and services, Congress may not regulate the demand for goods and services under the Commerce Clause. That is, Congress may regulate market “activity,” but not market “inactivity.” Contrary to some media reports, Chief Justice Roberts did not “narrow” Congress’ authority under the Commerce Clause. He simply refused to expand that authority to cover demand or “inactivity.”

      Justices Scalia, Kennedy, and Alito concurred, making essentially the same argument (but with more mentions of broccoli).

      Justice Thomas concurred in a separate opinion that would have narrowed Congress’ authority under the Commerce Clause.

      Justices Ginsburg, Breyer, Sotomayor, and Kagan dissented, writing that almost everyone buys health care at some point, either through health insurance or “self-insurance.” Thus, they argued, almost everyone “participates in” the health care market and Congress may regulate that under the Commerce Clause.


    • Necessary and Proper Clause: NO (5-4)Chief Justice Roberts, joined by Justices Scalia, Kennedy, Thomas, and Alito in a separate opinion, held that the Necessary and Proper Clause could not stand alone to authorize an act of Congress that was not authorized under another provision of the Constitution. It was not, in Chief Justice Roberts’ wording, a “by any means necessary” provision.

      Justices Ginsburg, Breyer, Sotomayor, and Kagan dissented, arguing that the guaranteed issue and community rating provisions of the ACA would fail without the individual mandate, thus the mandate was “necessary and proper.”


    • Taxing and Spending Clause: YES (5-4)Chief Justice Roberts, joined by Justices Ginsburg, Breyer, Sotomayor, and Kagan, held that the individual mandate could reasonably be read to establish a tax for people who did not buy health insurance. While Congress did not invoke the TAIA by calling the “shared responsibility fee” a tax, Chief Justice Roberts held that the TAIA issue was a statutory decision of Congress, while the Taxing and Spending Clause issue was a separate constitutional decision for the Court.

      Justices Scalia, Kennedy, Thomas, and Alito dissented, arguing the Court must either find the “penalty” or “shared responsibility fee” was a “tax” (making the entire case premature under the TAIA) or was not a “tax” (making the individual mandate unconstitutional).

Chief Justice Roberts, joined by Justices Ginsburg, Breyer, Sotomayor, and Kagan held that because the individual mandate was constitutional under the Taxing and Spending Clause, there was no need to consider whether the rest of the ACA could survive without the mandate.

Justices Scalia, Kennedy, Thomas, and Alito dissented, arguing that Congress had not specified that the rest of the ACA could be upheld without the individual mandate, and indeed that the rest of the ACA would be unworkable without the mandate. They would have overturned the entire ACA.

Did the Medicaid expansion induce or coerce state action? PENALTY NARROWED: 3-2-4

Chief Justice Roberts, joined by Justices Breyer and Kagan, held that the Medicaid expansion provision – which would have withheld all of Medicaid funding unless a state expanded Medicaid eligibility to all adults earning less than 133% of the federal poverty level – was indeed unconstitutionally coercive. Cutting off all federal Medicaid funds to states that did not expand eligibility would have gutted their budgets, forcing them to end existing Medicaid programs, raise taxes to make up for lost federal funding, or cut other state programs. However, they held that the provision was constitutional if read to apply only to new federal funds designated for expanded Medicaid eligibility, and thus they interpreted the provision that way.

Justices Ginsburg and Sotomayor dissented in part, arguing that the Medicaid expansion provision was an inducement similar to previous federal changes in Medicaid, and concurred in part, accepting Chief Justice Roberts’ remedy.

Justices Scalia, Kennedy, Thomas, and Alito concurred in part, agreeing that the Medicaid expansion was coercive rather than an inducement, and dissented in part, arguing the only remedy was to strike the entire Medicaid expansion provision.

Tomorrow we’ll discuss what the decision means – and what it doesn’t – for the future of the ACA, Medicaid, and the Commerce Clause.


(Crossposted from Blogistan Polytechnic Institute (

Occupy Congress on Jan. 17

Saturday, January 14th, 2012

(Winning Progressive is happy to introduce everyone to our newest contributor, Josh Marks.  Josh is a Washington, D.C.-based environmental journalist and clean energy blogger. He was most recently a senior writer and editor at Green American Magazine and writes about the sustainable economy at his Green Forward website.)

(By Josh Marks)

“I think you’d have to go back to the 1850s to find a period of congressional dysfunction like the one we’re in today.” – Daniel Feller, U.S. History professor at the University of Tennessee

WASHINGTON – Tuesday, January 17th marks the return of the least popular (9% approval rating) and one of the least productive (62 signed laws) sessions of Congress in American history. And when the second session of the 112th Congress arrives on Capitol Hill they will hear all about it.

Lawmakers will be greeted by thousands of demonstrators from the most recent evolution of Occupy Wall Street – Occupy Congress.

Occupy Congress’ day of action, dubbed #J17 by organizers, will feature of a full slate of activities including citizens from across the country arranging meetings with their legislators, teach-ins, a rally, party and D.C. Voting Rights Vigil.

But what does Occupy Congress want? There are many issues to address and many failures to point out. Failure to take action on jobs. Failure to take action on clean energy and climate change. Failure to take action on infrastructure. Failure to take action on the housing crisis. Failure to take action on income inequality and the middle class. These are but a few of the many urgent items Congress has failed to even vote on. But the number one overriding issue preventing any real change is big money undermining the political process.

Lawmakers are used to being lobbied by big corporations with deep pockets. On Tuesday they will finally hear from the largest lobbying group in this country – the 300 million citizens of the United States of America.

I plan on reporting from the evening protest and rally so stay tuned to Winning Progressive for full coverage of the event.

How can you get involved?

The Occupy Congress website provides an events schedule, transportation logistics for those planning to come to Washington, D.C. from another state, a guide to scheduling a direct meeting with your congressperson, a list of solidarity events taking place around the world, how to donate food and more.