Lawprof Jack Balkin says the individual mandate is constitutional because it's a tax.

Interesting argument:

The individual mandate, which amends the Internal Revenue Code, is not actually a mandate at all. It is a tax. It gives people a choice: they can buy health insurance or they can pay a tax roughly equal to the cost of health insurance, which is used to subsidize the government’s health care program and families who wish to purchase health insurance....

The Constitution gives Congress the power to tax and spend money for the general welfare. This tax promotes the general welfare because it makes health care more widely available and affordable. Under existing law, therefore, the tax is clearly constitutional.

The mandate is also not a “direct” tax which must be apportioned among the states by population. Direct taxes are taxes on land or “head” taxes on the general population. The individual mandate does not tax land. It is not assessed on the population generally but only on people who don’t buy insurance and aren’t otherwise exempt. It is a tax on behavior....

But will the Obama administration want to defend the mandate this way? Millions of Americans are getting a big new tax hit? It's not just a question of whether this argument will work in court. It's a question of whether Obama wants to shout out loud that the supposedly beneficent new law is a huge new tax on the very people he assured — over and over — that he would not raise taxes on.



"I can make a firm pledge under my plan, no family making less than $250,000 a year will see any form of tax increase. Not your income tax, not your payroll tax, not your capital gains taxes, not any of your taxes."

ANY FORM.

The phony quotes keep coming — and they go viral before even very quick corrections.

Yesterday, Yale lawprof Jack Balkin had to backtrack:

As I suspected, Justice Scalia did not say he would have dissented in Brown v. Board of Education in 1954. The newspaper account is incorrect and took his remarks out of context.

Although Professor Balkin picked up the story and wrote about it, to his credit, from the start, he hedged with phrases like "[i]f the current report is accurate."

The misrepresentation of Scalia's remarks went viral almost instantly, which is the way things go these days. Damage is done, even when the corrections are instantaneous.

This reminds me of those recent fake Rush Limbaugh quotes and the subsequent screw-up by Rush himself propagating some phony Barack Obama quotes. Rush was much better and quicker than his attackers about making a correction, but there's still some controversy about the way he corrected himself:

... I was libeled and slandered by countless members of the media, fabricated quotes, made-up quotes I never stated, never uttered, never wrote, nothing, were repeated all over this country by sportswriters, television cable hosts and so forth.  After we proved to them that I didn't do it they retracted it a week later, after the damage, and many of them said, "It still doesn't matter, we know Limbaugh thinks it anyway." 

So last Friday, I get a note from a friend who says, "You ought to see what's on this blog."  I looked at it, and it was Obama, his thesis from Columbia, "so-called Founders," didn't like what they did with the Constitution, there wasn't enough talk about distribution of wealth and so forth. I said, "Well, this has a ring of truth to it," because we've got Obama on radio from Chicago 2001 complaining about the Supreme Court not doing enough about redistribution.  So we ran with it, made a big deal out of it in the first hour.  In the second hour, I got a note saying, "Hey, Rush, we looked at this, we can't back this up, we can't find any actual sourcing for this."  So at that point I warned the audience that it may not be true, that we are still checking it. 

Shortly thereafter I learned that the whole thing was made up, it was a satire piece on an obscure website.  Then I said, "Okay, folks, I have to tell you, it's satire, there's no evidence that Obama ever wrote this, but, Media Tweak of the Day, I don't care, I know he thinks it anyway because I've got audio of Obama saying it, talking about the Supreme Court."  And we all got a great laugh about it because I corrected it immediately, I explained that it was a hoax, or was satire and then to tweak the media I said, "But I don't care, I'm sticking with it because I know he thinks it anyway."  So I dished out to Obama what the whole media did to me and I dished it back at the media as well....

Everyone jumped all over that, of course, because he didn't say he was sorry before he did what would be an otherwise justified punch-back at the media for the way they savaged him with fake quotes and withheld even corrections, not to mention apologies. Now, he must know that he screwed up what would have been excellent media criticism by not properly abasing himself first. You can see that he was milking the no sense of humor theme, but these talking heads who hate him are never going to find his sense of humor delightful, and he made it completely easy to portray him as a fool because he didn't first get in a clean apology ritual.

Is Jack Balkin more subversive than Eugene Volokh? Am I?

Yale lawprof Jack Balkin is in China, checking out which lawprof blogs are blocked:

I was able to reach Volokh Conspiracy, SCOTUSBlog, How Appealing, Election Law, Instapundit, Mirror of Justice, Concurring Opinions, Becker-Posner, PrawfsBlawg, Feminist Law Professors, Business Associations Blog, Lessig Blog, and Black Prof. I was not able to reach Balkinization, Althouse, U Chicago, Leiter Law School and The Conglomerate.

There is almost no reason to believe that, from the standpoint of the Chinese government, Balkinization is more subversive than Volokh Conspiracy or Becker Posner, or a number of other blogs on this list. It is likely that, as with most Internet filtering schemes, the results are some combination of overblocking technology, arbitrary decisionmaking, and simple luck of the draw.

I can think of plenty of reasons why the Althouse blog is more subversive!

What effect will the Supreme Court's gun case have on the '08 election?

Jack Balkin asks a great question. To answer his question, he predicts what the Court will say in its decision in District of Columbia v. Heller:

(1) that the 2nd amendment protects an individual right, (2) that this right applies against laws in federal territories like the District of Columbia, (3) that a relatively deferential standard of reasonableness applies, and (4) that, even under this relatively deferential statute at least one part of the D.C. gun control law is unconstitutional. That is to say, I predict a decision that tries to split the difference and is aimed roughly at the middle of public opinion, even if not the exact center.

That sounds right to me.

Will people get stirred up if the outcome is that hedged and bland? Balkin thinks the newspaper headlines will scare people — and they'll scare people into the embrace of the Democrats:

[I]f the Court strikes down any part of the D.C. handgun ban, the headlines in the newspapers will announce that the Court has protected gun owners rights and that gun control laws around the country are now constitutionally vulnerable....

So, just as a decision favoring abortion rights fires up pro-life politics, a decision recognizing gun rights will stir up the people who support gun control.

Obviously if I am wrong in my predictions, and the Court adopts the collective rights theory, conservatives will benefit. But I think there is very little chance that the Court would take this case if it a majority did not want to embrace the individual rights position. And even if members of a conservative majority understood that the appearance of a conservative result would help liberals and Democrats, I do not think it would change their decision in the case.

Is Balkin trying to mess with Justice Kennedy's head?

Anyway, Balkin's prediction is that the Court will slice it down the middle, but people, under the sway of inflammatory newspaper headlines, will misunderstand the case and vote for Hillary Clinton.

Very interesting. I think he's missing something, though.

The decision won't come for many months. (Oral argument should be in March.) During this time, it won't be a court opinion affecting voters minds, it will be a debate about gun rights and, more broadly, how to interpret the Constitution. Candidates will be asked all sorts of questions as this issue comes to the forefront.

The issue will get intertwined — I predict — with the abortion question. How should we interpret the text of the 2d Amendment, and how does that fit with the way you interpret the Constitution to protect the right of privacy? What kind of Justice will you put on the Supreme Court? If you support Roe v. Wade, you can't suddenly switch to strict constructionism to beat that pesky 2d Amendment into submission.

Things can get complicated, and it will be a difficult dance — more difficult for some that others. I'm not ready to assume Hillary Clinton will be the Democratic candidate.

Barack Obama ought to see an opportunity here. He was a constitutional law professor. He may have the skill to speak elegantly about constitutional rights when asked questions that leave Hillary Clinton spluttering for answers that don't sound hypocritical. John Edwards has legal skill too, and he may find a way to speak clearly and persuasively to people about constitutional law.

Meanwhile, the Republicans can make progress promoting a coherent approach to constitutional interpretation and sound judicial appointments, but they too are vulnerable to stumbing over the complexities. Who will do the worst? There are lots of contenders! But it's quite likely Giuliani will do the best, given his extremely strong legal background.

ADDED: Glenn Reynolds assesses the effect on the election. Unlike Balkin, he concentrates on the pre-decision debate about the issue:

[T]he court has ensured that the gun-rights issue will move to the forefront this election season, at both the presidential and congressional levels. This is probably bad for Democrats, given that most Americans believe they have some sort of right to arms under the Constitution.

It's also probably bad for Rudy Giuliani and Mitt Romney, who have generally been less supportive of gun rights than the other GOP contenders. But maybe Hillary Clinton will prove flexible: Bill Clinton said that the gun issue cost the Democrats control of Congress in 1994, and Hillary no doubt remembers that.

In the nowhere of the blogosphere....

... I'm trying to put on a necklace and to fend off a tsunami of possibly doughy Clinton sycophants.

ADDED: Not only did I typo "sycophants" as "syncophants," but the video is entirely out of sync! I'll see if I can fix it. Damn! [BUT: I think I know how.]... FIXED!

IN THE COMMENTS: I like what John Stodder says here. (And he may be interested to know what lawprof Jack Balkin said here, which I used to have up in the banner.)

What to ask Mukasey.

4 law professors say what questions they'd like the Senate Judiciary Committee to ask Michael Mukasey. (The Attorney General nominee testifies today.)

A sampling:

Jack Goldsmith: "In 2002 the Department of Justice opined, 'Any effort by Congress to regulate the interrogations of battlefield combatants would violate the Constitution’s sole vesting of the commander-in-chief authority in the president.' Do you agree with this statement? How do you define the scope of the president’s exclusive military powers?"

Charles Fried: "Priorities in law enforcement and particular conceptions of controversial legal issues — affirmative action, severity and leniency in criminal prosecution and sentencing, antitrust policies, civil rights enforcement — have always been part of a president’s project for the nation. And yet the public expects and the rule of law demands impartiality in law enforcement. So the attorney general cannot be independent of the president who appointed him, as are judges or the chairman of the Federal Reserve Board, but neither must he be a political operative pushing the president’s advantage at every turn. How would you balance these conflicting demands?"

Jack Balkin: "When, if ever, should the government prosecute journalists or other citizens for publishing classified information leaked to them about government activities of questionable legality?"

UPDATE: Mukasey on the "torture memo": "The Bybee memo, to paraphrase a French diplomat, was worse than a sin, it was a mistake. It was unnecessary."

The Erwin Chemerinsky mystery, part 2.

(Part 1 is here.)

Michael Drake speaks:

The decision was mine and mine alone. It was not based on pressure from donors, politicians or the University of California Board of Regents. It was a culmination of discussions -- with many people over a period of time -- that convinced me that Professor Chemerinsky and I would not be able to partner effectively to build a world-class law school at UC Irvine. That is my overarching priority.

My decision was absolutely not based on Professor Chemerinsky's place on the political spectrum, which is, in fact, quite similar to my own.

Nor was this a matter of academic freedom. UC Irvine -- and I personally -- staunchly support and defend freedom of speech and the expression of a wide range of viewpoints on our campus; nowhere is this more important than at a public university. There are individuals with political views far more liberal than Professor Chemerinsky's or mine who conduct research, teach and serve in senior administrative positions at UC Irvine....

I am confident that our search process will ultimately result in the appointment of a founding dean who will work with my colleagues and me to build the world-class law school that we envision for UC Irvine.

What bureaucratic drivel! Glad you're so convinced and confident about absolutely everything. We're not.

UPDATE: The L.A. Times reports on the furor at UCI:

The search for Chemerinsky took nine months before a formal agreement was reached, and search committee members said they would now probably start again from scratch...

Although Drake has denied that he took action under pressure from conservatives, [psychology professor Elizabeth F. ] Loftus said Thursday that the chancellor told the [dean search] committee during an emergency meeting Wednesday night that he was forced to make the decision by outside forces whom he did not name. A second member of the committee confirmed Loftus' account to The Times but asked to remain anonymous.

"I asked whether it was one or two voices or an avalanche, and the answer is that it was an avalanche," Loftus said. "But we are not supposed to capitulate to that in the world of academic freedom."

And here's lawprof Jack Balkin:

This is a disgraceful way to treat Erwin Chemerinsky, a very fine legal scholar. It is bad enough that Drake fired him in what can only be described as an act of cowardice. Now he must go on an extended public relations campaign lying about why he did so and further impugning Chemerinsky in the process. One suspects that the next person whose job is on the line will be Drake himself.

Can anyone explain why Drake should not resign? After nine months of searching for a dean and recruiting a man who is highly respected throughout the law school community, he turned around and fired him in a way that has undercut the whole project of founding a law school at UCI.

"You can do legal scholarship as performance art, like Ann."

Jack Balkin said that at the conference, making an impressive play for a spot in the banner... and winning it! He was talking about the different ways of doing law blogs:

"You can do legal scholarship as performance art, like Ann. I sometimes regard what she does as a kind of art. She's performing in a certain way. It's aesthetic and there's a certain high style to it."

(Here's Jack's blog.)