Jun 28, 2012

Obamacare and Law Stuff

UPDATE VII: Here's a pretty legit reasoning on why it's not a 'tax':

Never before in the court’s history has it it interpreted as a tax: 1) What was explicitly stated to be a penalty in the statute; 2) Whose function, as demonstrated in the statute, is punitive; and 3) Whose position in the statute IS NOT IN THE FUNDING SECTION. Congress went to great lengths to assure the mandate was not, in any shape or form, interpretable as a tax. As the dissenters noted, the house rejected an earlier version of the statute that cast the mandate in the form of a tax.
One of my biggest beefs is that it is fundamentally anti-democratic for congress to effectively lie to the people (by calling something a 'mandate' and adamantly decrying it as 'not a tax'), especially when it comes to the taxing power.  Justice Scalia made the point in the dissent that the taxing power is important to be an on-its-face honest debate for the people, since the politicians who are willing to vote for a new tax are risking their own political futures.  They should not be allowed to circumvent that risk by lying to voters point-blank and having judges uphold those lies.

UPDATE VI: Sean Trende at RealClearPolitics seems to agree with my conspiratorial thought, that the Chief may have just insulated himself against charges of partisanship with this decision:

I don’t think invalidating the ACA would have affected the court’s legitimacy that much, at least outside of liberals in the legal academy. But taken as a whole, this series [ed. see below for the list] of decisions really might have irrevocably hurt the court’s reputation for independence.

But Roberts has something of an ace up his sleeve now. Accusations of hyper-partisanship are much harder to make against him, and he has more freedom to move on these issues.

All told, it is easier for the conservative wing of the court to make some significant rulings in some other policy areas. In so doing, he actually made significant progress for judicial conservatives while ruling against conservative policy. And he might still see that policy repealed if Republicans win in the fall. 

I don't know if that was his intention, but it's probably a helpful side effect for Roberts.  Trende lists some of the upcoming cases, which include major issues that will almost certainly be decided next term in big ways, including affirmative action, more campaign finance, and the Voting Rights Act.  If conservatives win those, then an entire generation of jurisprudence will have been swept away.

Still, I don't think that was his guiding thought.

UPDATE V: People are spinning the political ramifications of this like crazy, both saying that it's good for Obama (he can say his signature achievement was constitutional!) and that it's good for Romney (he can now saddle Obama with the biggest middle class tax cut in U.S. history and keep attacking Obamacare).  Some conservatives are also consoling themselves with the idea that while they are playing for single wins, Roberts is playing chess, looking long-term and big-picture.  It reminds me of this clip from The West Wing:

But it also makes me wonder--is Roberts building up some capital for himself?  That is, even though he's now upheld the law as constitutional, and since we now know that the other four conservative justices believe it to be unconstitutional in its entirety, doesn't that make it somewhat more likely that as various challenges to the law appear (the Catholic Church's suit against the HHS contraceptive mandate comes quickly to mind), Roberts has more leeway to strike those down?  Can't he now effectively gut the ACA of all meaning through various challenges, while still saying "I voted to uphold it"?  That way, the Court saves face from the media and libs bellowing 'it's so g*d d**n motherf****** partisan!!!!!1!!!', but he also gets rid of the most onerous provisions.

Or is that just thinking too hard about this?

UPDATE IV: Here's the reasoning behind the conservative dissents, treating a penalty as distinct from a tax:

In a few cases, this Court has held that a ‘tax’ imposed upon private conduct was so onerous as to be in effect a penalty.  But we have never held – never – that a penalty imposed for violation of the law was so trivial as to be in effect a tax.

UPDATE III: Some people think that Roberts may have pulled a switcheroo last minute, since the conservative dissent reads more like a majority opinion (referring to Ginsburg's dissent as 'the dissent' and not even debating the majority holding, that the individual mandate is a tax).  Weird if that actually happened.  If I recall, a similar thing happened in Planned Parenthood v. Casey, where Kennedy originally voted to overturn Roe v. Wade in the post-oral argument conference but then had second thoughts.  Rehnquist, if I recall, was really, really mad, since he had already started an epic opinion that then had to become a blistering dissent.

UPDATE II: The amount I guessed ($2300) as the 'tax' is incorrect.  Via this, it is as follows:

Under the Act’s complicated shared responsibility payment structure, the minimum shared responsibility payment amount per year for each adult who lacks minimum essential coverage will be $95 for 2014, $325 for 2015, $695 for 2016, and $695 or more for 2017 or later, increased due to cost-of-living adjustments

UPDATE II-A: That amount above is only for an individual.  For a family, it is substantially more.  I saw on the news today that by 2016, for a family, the penalty--ahem, 'tax'--is over $2000.

UPDATE:  The money quote (not so much legally as philosophically) from the opinion: "It is not our job to protect the people from the consequences of their political choices."  Or, in other words: "Hey, America, you elected the morons.  It's your fault they passed this crap in the first place."


So, I've tried to generally avoid the political on this blog for a while, since it just gets my blood boiling so much.  Drawing pictures is fun and happy and uncontroversial.  However, with a once-in-a-generation case having just been decided by the Supreme Court (SC), I feel that I need to just let all the pent-up nervousness and frustration out.  (Here's a link to the .PDF of the opinions.)

Now, for anyone who knows me or reads any of my stuff, it's pretty clear that I probably don't like the ACA ('Obamacare').  I don't.  Of course the American health care system is broken.  Of course costs are out of control.  Of course something needs to be done.  However, I have never been convinced that a centralization of authority into the hands of the federal government is the best alternative to the crap we have.  The federal government, while accomplishing some good things, is generally incompetent, especially at dealing with long-term, complex issues.  You want the government to regulate your health care?  Try going to a post office to send a package, and see how frustrating that is.  Do you really want those people taking out your spleen?  While that is an anecdotal response, it illustrates the larger problem: one-size-fits-all solutions by a government that has no competition to keep it efficient never succeed in the real world.  Government is bloated, heartless, and inefficient.  At least corporations are heartless and streamlined.  That's why, I fully predict, in the next few decades, the American healthcare system (even with Obamacare in place) will collapse upon itself.  It's just not sustainable, and any reasonable projection of Obamacare's costs show that to be true.  I'm not going to pretend that I have better ideas on how to deal with the crisis, but I also don't have to.  I'm not a politician.

Now, with that all said, onto the legal parts.

The ACA was upheld as constitutional today by a vote of 5-4, with Chief Justice Roberts joining the four SC liberals to hold that the individual mandate, the most controversial aspect of the bill, is a tax, and is therefore constitutional.  At first glance, that frustrates me, but I also can't necessarily disagree.  Anthony Kennedy (!), dissenting, writes that he (and Scalia, Thomas, and Alito) would've overturned the entire law.  His reasoning against the tax is this: in his view, congress doesn't have the authority under the Commerce Clause to force an individual to engage in a commercial transaction (I agree), and since it doesn't have that power in the first place, it doesn't have the power the treat that decree as a tax, so the taxing power doesn't apply (I am dubious on that).

Congress has passed numerous laws which can be construed in the same way as the individual mandate, if viewed as a tax.  For example, the mortgage-interest deduction.  If you own a home, you are able to deduct that amount, and your taxes are lowered.  Non-homeowners don't get that deduction.  While the mandate is viewed in different light (instead of 'buying something leads to deduction', it's 'not buying something leads to penalty'), the two, as a matter of formal logic, are effectively the same.  The individual mandate, instead of being viewed as a penalty, can be seen as a deduction in this light: everyone has to pay an extra dollar amount in taxes (or whatever the individual mandate penalty is), but those who buy health insurance can deduct that amount, so aren't taxed on it.  While it may seem a stretch to some, in my limited knowledge of constitutional law, I can't see that as being outside of congress's taxing power.

My only beef is the fact that it's been described as a 'penalty' by the administration and congress from the beginning.  It being regarded as a 'tax' seems disingenuous.  However, I guess the SC decided that, in the end, when you put lipstick on a pig (and call it a 'penalty'), it's still fundamentally a pig (a 'tax').  I'm not happy about it, but the reasoning is pretty sound, and Kennedy's dissent doesn't really convince me otherwise.  I'd like to see some better justification.

However, the silver lining for 'originalists' (or whatever those of us who believe in a limited government of enumerated powers are calling ourselves these days), is that the Chief Justice made clear in his opinion that the individual mandate exceeds congress's powers under the Commerce Clause.  While not a cause for celebration, it is at least a cause for a sigh of relief.  My greatest fear has been that if the government has the power to compel you to enter into a private contract, it effectively has the power to do anything it wants, and therefore, we do not live under a government of limited, enumerated powers.  Roberts explicitly states that the ACA would be held unconstitutional under that rubric.  Now, there aren't many cases (read: there aren't any) coming forward to the SC any time soon dealing with other types of government mandates.  So, the finding won't have much general applicability.  However, it does put some kind of a limit onto the ever-expanding Commerce power that congress has been granted.  Frankly, I'd like to see more Commerce Clause cases come forward, and I'd like to see them be struck down as unconstitutional.  When push comes to shove, even more than an overturn of cases like Roe v. Wade, small-government folks should be trying to get Wickard v. Filburn thrown into the dustbin of history.  That's the case that gave congress such expansive power that it's allowed to enter into your most private dealings, under the auspices of 'regulating interstate commerce.'

So, in the end, the nation still stands, teetering under an unsustainable health care system and an unsustainable debt burden.  The optimist in me thinks it'll all work out fine, but the realist in me sees our current crop of politicians and concludes that it's all going to the dogs.  Good thing there's so much to look forward to!

And, to end on a happier note, here's a picture of a monkey carrying a puppy:

Jun 5, 2012

I Animated A Chimpanzee Walking

The title pretty much speaks for itself.  It's currently on 4s.  I need some breakdowns in there to smooth it out, but here's where it is thus far:

Jun 1, 2012

Presidential Portraits

Update: I just discovered that the place where I first heard about the TR story was not Theodore Rex, but the C-SPAN Inside the White House documentary. One of the historians they have recounts the story. My bad. But you should still read Theodore Rex.

Yesterday, former president George W. Bush returned to the White House for the first time since 2010, for the unveiling of his official presidential portrait.  The image is a good likeness (though I'm not a huge fan of the somewhat bland, washed-out style).  The portrait of Laura Bush was revealed as well, and it's pretty good too:

It got me wondering about presidential portraits.  What's the deal with them?  How long have they been around?  Are there 'official' versus 'unofficial' portraits?  Who pays for them?  Who owns them?

The answers seem to be a bit muddled, as would be expected in over two hundred years of history.  In recent decades, an official portrait is done of each president and first lady by an artist of their choosing.  It is paid for by the White House Historical Association (WHHA), which is a private non-profit that was originally founded by Jaqueline Kennedy.  The WHHA is well known as the vehicle through which most of the redecorations and alterations of the official White House state rooms are conducted.  I'm not sure of the exact relationship between it, the National Park Service (which runs the White House grounds, officially called the "Presidential Park"), and the official White House, but there seems to be a lot of interconnectedness there.

The WHHA also owns many of the portraits, acting as stewards of "The White House Collection" via the White House Acquisition Trust.  Presidents are given the chance to choose where to hang the various portraits of previous presidents in the collection.  For example, when Ronald Reagan became president, he had the portrait of Calvin Coolidge moved from the Grand Hall of the White House into the Cabinet Room in the West Wing, next to a portrait of Thomas Jefferson.  Both are famous for their small-government philosophies, so Reagan must've felt that he'd like them to be a visual philosophical reminder for those in his administration.

Who owns the other portraits?  Almost all of them are held by the National Portrait Gallery of the Smithsonian.  A few are held by various libraries (including the Library of Congress, I believe) and presidential homesteads (such as Monticello and Mount Vernon).

As for what's "official" and what's "unofficial," I have no idea.  My best understanding seems to be whether it is a portrait of the president as president, painted with the understanding of the president (not by a random person), and whether it is owned by a public or publicly-involved entity.

So, that's who owns and distributes them and what makes them 'official.'  But what about the portraits themselves?

Well, certainly the most famous one is the Gilbert Stuart portrait of George Washington, known as the "Lansdowne Portrait":

Interestingly enough, the portrait was commissioned by a U.S. Senator from Pennsylvania as a gift for an American sympathizer in the British Parliament, William Petty, Marquess of Lansdowne (hence the name).  It is unknown who owned the original until 2001, when it was bought for $30 million dollars and given to the National Portrait Gallery.  However, the portrait had been on official loan and display for a very, very long time.

The painting is most famous for being saved by First Lady Dolley Madison from the torching of the White House during the War of 1812.  It seems, however, that the one saved is not the original, but a replica, also painted by Gilbert Stuart.  Two more replicas done by the original artist are on display, and two more replicas done by different artists are on display in the U.S. Capitol.

Here are two more of Washington, both done by Rembrandt Peale, and held in the collection of the National Portrait Gallery.  According to the Gallery's website, young Rembrandt Peale was so nervous to be painting the illustrious Washington that his father, Charles Willson Peale (another famous American portrait artist) had to come with him to sittings to keep him calm:

Gilbert Stuart, Rembrandt Peale, Charles Willson Peale, and an artist named John Trumball were the main portraitists of the early American period (though Trumball's most famous images are his portrait of Alexander Hamilton, which appears on the ten dollar bill and the signing of the Declaration of Independence, on display in the U.S. Capitol rotunda and reprinted on the back of the two dollar bill).

Many of the early portraits, then, were simply commissioned by the presidents themselves or their various compatriots.  Apparently, in 1800, Congress did allocate $700 to purchase the Lansdowne portrait of Washington.  Beyond that, however, it doesn't seem that the government did much purchasing of art (the Smithsonian wasn't founded until 1846, and the White House didn't really have much of a budget in the early days--in fact, I recall reading a few years ago that it wasn't until the early 1900's that president's didn't have to pay for their official State functions out of their own pockets).

The next notable portrait is the famous one of Abraham Lincoln, leaning forward in his chair, deep in thought.  It currently hangs (and has for quite some time) above the mantle in the State Dining Room in the White House:

Interestingly, this portrait was not done in Lincoln's lifetime.  And, it wasn't the original official portrait of Lincoln.  In 1869, an official portrait contest, put on by Congress, with the winner chosen by President Ulysses S. Grant selected this portrait of Lincoln instead:

The famous one was owned by Lincoln's son, Robert, and eventually bought and hung in the White House.

The next one is probably my favorite portrait in the collection, primarily because it was done by one of my favorite artists of all time, John Singer Sargent. I recount what I remember about it from Edmund Morris's excellent biography, Theodore Rex.

Apparently, the president and Sargent had been going at it for a long time, with Sargent continually unhappy with how Roosevelt was posing.  There was something off, and Roosevelt's character simply wasn't coming through in the way Sargent wanted.  As both a very energetic and irascible man, Roosevelt grew impatient, and was about to burst into a tirade against the artist for wasting his time.  He put one hand on his hip and tightened his grip on the knob of the staircase he was standing next to.  As he began to step forward, his face contorted in determined anger, Sargent told him to stop.  His pose was perfect!  And today, we are left with that--an image of a perturbed Roosevelt, brimming with pent-up energy, which hangs in the East Room, on the other side of the wall as the Lansdowne Washington portrait:

Another interesting story is that of the John Kennedy portrait.  Jaqueline had it commissioned after his assassination by one of her favorite artists, who created a stunning image of JFK in deep thought.  His pose exhibits all alone in the power of his office.  It's totally different than the other official portraits, in that the president is in a pose that doesn't show his face.  My mom thinks it's stupid.  I love it.  It's my second favorite, after the Roosevelt one above:

Kennedy, of course, was followed in office by Lyndon Johnson, who was his Vice President and, previously, the majority leader in the U.S. Senate, hailing from Texas.  Johnson's first official portrait was well done (I think), with the artist including the Capitol in the background (since he had served there for many decades) and a lovely Texas sunset.  Johnson hated it:

Instead, he went with a super-lame totally 1960's-era portrait.  Boring!

A similar thing happened with Richard Nixon.  Norman Rockwell, the famous portraitist, was commissioned to paint his official portrait.  However, when it came back, people looked at it and asked "Would you buy a used car from this man?"  It's actually a really well-done portrait (and a better likeness than the official one), but I can see why he wouldn't've wanted it to be the portrait everyone sees of him:

Those are the most interesting ones that I know of.  The unofficial portraits owned by the National Portrait Gallery of Reagan and George H.W. Bush are better, in my opinion, than either president's official White House portrait (especially Bush's).  I'm not a huge fan of Clinton's official one either.

I do, however, really like this unofficial one of George W. Bush owned by the National Portrait Gallery.  It's more relaxed and captures his sense of humor (which, I guess, depending on whether you like him or hate him will probably change whether you like the portrait or not).  I have no particular animus against him (also not a big fan of many of his policies, but he seems like a nice enough guy), so I think it's well done: