Day One of the arguments before the Supreme Court over the constitutionality of the Affordable Care Act are wonky, but probably some of the most critical of the three-day stretch.

In a nutshell, they concern whether or not the parties have the right to sue over taxes not yet levied.

Via SCOTUSblog:

Section 7421 is actually a section within the Anti-Injunction Act that traces its origins to 1867; that law is often referred to as the Tax Anti-Injunction Act to distinguish it from another congressional enactment that is similar. Both have to do with defining the powers of the federal courts. The tax version is a part of Title 26 of the code of federal laws, and Title 26 deals only with tax issues. The section’s most important words are these: “no suit for the purpose of restraining the assessment or collection of any tax shall be maintained in any court by any person, whether or not such a person is the person against whom such tax was assessed.”

Before the words “no suit,” the section lists 12 exceptions to the ban that follows. None of those exceptions is involved in the health care cases, so they can be omitted from the discussion. Congress could, if it wished, eliminate the section as a potential barrier to the insurance mandate challenges, simply by passing a law to create a new exception just for that purpose; it has not done so yet, so the ban as written remains intact. It is important to note that when the section refers to “any tax” it only means any federal law, not any state law.

The quoted words of Section 7421 serve a basic goal of the federal government. As the Supreme Court put it in a 1984 decision (Bob Jones University v. Simon), “the principal purposes of this language” is “the protection of the government’s need to assess and collect taxes as expeditiously as possible with a minimum of pre-enforcement judicial interference.”

The heart of the question is whether or not a lawsuit can be brought before the tax under the individual mandate has been levied on anyone. If the court finds that this provision applies, then the arguments over the mandate are moot, and the court can move on to the Medicaid expansion in their decision process.

More from SCOTUSblog:

Although this may be the most complex issue, legally, that the Court will be considering next week, and it is the one that has drawn the least public interest, this question is of major importance: it draws the Court to the core issue of whether anyone had a legal right to file a lawsuit to challenge the insurance-purchase mandate before it actually goes into effect (now scheduled for January 1, 2014). If lawsuits turn out to have been barred, the mandate may not be challenged probably until 2015 at the earliest. The answer actually depends upon answers to two separate issues: is the Anti-Injunction Act the kind of law that defines a federal court’s authority – that is, does a court have jurisdiction to decide the case at all — and, if it is jurisdictional, does that bar a court challenge to a specific law written as the insurance mandate is written?

Without question, these three days’ arguments are not only deeply rooted in history, but will be historical regardless of the outcome. Audio recordings of the arguments will be released midday, and I’ll be writing them up as quickly as I can. Onward.

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Sunday’s Meet the Press was supposed to be a “serious” discussion about race in the context of the Trayvon Martin case. What it felt like to me was David Gregory trying to flog the idea that President Obama hasn’t led us into some “meaningful” national discussion about race while at the same time trying to minimize the impact race had on how the Trayvon Martin case has been handled.

Let’s begin with David Brooks’ statement at the very beginning of this particular segment, where he opines that racism is a “natural sin”; that is, it’s inherent in all of us, and not learned. Without climbing deep down into the weeds about whether it is racism or tribalism that’s natural, I think we can safely say that the hateful parts of racist behavior are learned and reinforced rather than genetic. It is one thing to gravitate toward others who look the same and another to shoot them. Or believe one is justified in shooting them, so making a statement like:

I would say it means that racism isn’t a disease, it’s a natural sin that we’re born into. And therefore, we have to fight it through civilization and through artifice. And by the way, it’s one of the reasons, when you have somebody with the gun in a neighborhood, it has to be someone trained–

See, I think it’s a disease. And even if it is a natural inclination, what makes Brooks think training would somehow erase a person’s racist inclinations? I think that even if it is natural, it is a disease and one that has been incubated and gone viral in this country, unleashed in 2008 with the full blessing of the right-wing politicians in our country.

Speaking of right-wing politicians, let’s shift right on over to Haley Barbour, who says Newt Gingrich’s comments are wrong but oh, so right.

DAVID GREGORY: Newt Gingrich spoke out pretty powerfully about this in the political realm. This is how he reacted, in part, to President Obama’s comments.

What the president said, in a sense, is disgraceful. It’s not a question of who that young man looked like. Any young American of any ethnic background should be safe, period.

DAVID GREGORY: Was that responsible, governor, what he said?

GOV. HALEY BARBOUR:
Well, I wouldn’t have characterized it that way. But look, he’s right. Any child, white, black, brown, red or yellow that gets killed, it’s a tragedy. And we need to get to the bottom of it. Now there’s– he’s absolutely dead right, there’s no difference because of what race somebody is when something like this happens.

In order to understand President Obama’s comment, one must accept on some level that the reason this case is now on the national radar is because there is a distinct possibility that George Zimmerman had drawn a bead on black kids in his neighborhood, and because the Sanford police department was willing to sweep the entire case under the rug as “justifiable homicide”. If this tragedy had happened in reverse; that is, Martin had shot Zimmerman, do you think for one New York second that the cops would have let Martin go, much less written off the entire case as justifiable?

Hell yes, race is an issue here, no matter what Newtie and his buddy Barbour think. Yes, any teenager dying is a tragedy, no question. But it’s not the fact of a teenager dying that’s the issue in this case. The issue in this case is a double standard and set of assumptions that blamed the victim while letting his killer off the hook. When the president said his own son would look just like Trayvon, he was making a powerful statement about how race impacts judgment and for this panel to sweep that under the rug simply undoes the idea that this is any sort of “serious” discussion about race.

Hello, everyone. It’s good to be back. Let’s get started with an eclectic selection for your pleasure:

BeggarsCanBeChoosers: Bill Maher is wrong about Dear Leader Rush.

Stinque: No, “liberal media,” both sides don’t do it. Stop the false equivalency BS.

Cosmic Variance: Ian McEwan and the passion of scientific discovery. (Republicans, you won’t understand this at all.)

Copeland on Film: The Godfather and American culture. (Very long post but essential for any film lover.)

And for a bit of gloomy fun this Monday, Analogue Adventures ponders the best breakup records ever. Feel free to suggest your own, either here or there.

Round-up by Michael J.W. Stickings of The Reaction (@mjwstickings). I’ll be here all week.

Send tips to [email protected]

Karoli sent me this screenshot (nice church lady facial expression) of the O’Reilly show from earlier THIS WEEK. Yes, Fox News is asking if Obama can “win” the women’s vote. This week. Heeyuh.

(Added: Nicole) This Tuesday, we’ll have a Blue America chat (11:00 am Pacific/2:00 pm Eastern) with former congressperson Carol Shea-Porter, trying to regain her seat from tea party candidate Frank Guinta. After two years on the job, New Hampshire voters definitely have voters’ remorse and we’re doing all we can to escort Guinta out of office. Those of you on Facebook, please share this page with your friends. Carol’s a solid progressive and key to our regaining control of the House.

Open thread below. …

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Matthew Dowd, President George W. Bush’s former chief strategist, on Sunday observed that the same conservative legislatures and governors who are championing so-called Christian values like prayer in schools are also pushing for dangerous gun laws that are counter to Christian teachings.

During a panel on ABC, “Nightline” anchor Terry Moran noted that Florida’s “Stand Your Ground” law gave officials cover to not arrest neighborhood watch vigilante George Zimmerman for killing Trayvon Martin, an unarmed 17-year-old African American boy.

“No other state has a law like this,” Moran explained. “Not only is it a ‘Stand Your Ground’ law — in the olden days under common law you had a duty to retreat. ‘Stand Your Ground’ says, no, you don’t have to. Florida goes one step farther. ‘Stand Your Ground’ is self defense — defense at trial. It would go to trial where the jury would figure out what happened.”

“In Florida, the law says if you raise a claim of self defense after killing someone in public, you can’t even be arrested,” he added. “It’s why prosecutors and police hated this law. It sabotaged our justice system. All this discussion we’ve heard — What did Zimmerman do? What did Trayvon do? — Juries are supposed to figure that out. The Florida law destroys that American system.”

“There is such irony about this,” Dowd agreed. “Most of the states that have passed this including Florida and the ‘Stand Your Ground’ laws and the expanded gun-ownership laws where you can carry a concealed weapon are also the same states and the same legislatures and the same governors who sort of pushed for prayer in the school.”

Dowd continued: “To me, there is such and irony here, that we want to be a Christian nation and we want to act in a Christian manner, but oh, by the way, we don’t believe in the turn your other cheek and we don’t believe in love your enemy. We believe in loading citizens and basically giving them an opportunity to shoot people.”

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[h/t Heather at Videocafe] 

Let’s begin with this: David Corn’s new book Showdown devotes maybe a paragraph to Fox News, but to listen to the cries and howls from Bret Baier and the rest of the Fox team, you’d think the entire book was about it. Here’s the teeny little excerpt they’re all upset about:

“…Fed by Fox News, they hear Obama is a Muslim 24/7, and it begins to seep in…The Republicans have been at this for 40 years. They have new resources, but the strategy is old,” Corn recounted Obama as saying.

Bret Baier is simply outraged that the president could say something so utterly unfair, so outrageously false about Fox News, and Howie Kurtz rides to the rescue to back him up, taking the quote and expanding it so that it now isn’t just “Fox News”, but specifically “Fox News hosts.”

Of course Fox News hosts don’t say it outright. They just let their guests say it and fail to correct them. This is how it’s done, and Corn pushed back hard on Baier with example after example after example of how wrong he was. Here is just one paragraph citing a few:

There’s more (as Media Matters has documented). Donald Trump, appearing on Bill O’Reilly’s show in March 2011, speculated that Obama was hiding his birth certificate because it declared he was born a Muslim. On April 26, 2011, controversial pastor Robert Jeffress onFox & Friends said, “why do 20 percent of Americans think the president is a Muslim? We’ll, as my kids would say, duh.” Last year, conservative radio talk show host, Lars Larson, echoing a familiar right-wing trope, said on Fox that the president shows “a whole lot of deference to Muslims and seems to forget Christians.” Fox folks, of course, have gone wild over Obama’s bowing before the Saudi king, and the network in 2008 pushed the false story that Obama attended an Islamic school in Indonesia.

If Howie Kurtz had an ounce of intellectual honesty, he would have given Corn an opportunity to respond to the critics who are willing to carry Fox News’ water whenever so ordered. And even more than that, he wouldn’t have allowed Baier’s qualifying word “host” to have gone by without noting the dishonesty of shifting a quote from Fox News, the organization, to Fox News hosts.

Also? If Kurtz had even an iota of intellectual honesty, he wouldn’t bring a commentator from Glenn Beck TV on the show to defend Fox. Glenn Beck and his TV channel are irrelevant, but leave it to Howie and his bookers to try to make them relevant, too. And Howie, this just makes me want to send you rotten tomatoes:

KURTZ: Now, I didn’t find any example of a Fox host saying that President Obama is Muslim, so what Bret Baier said is accurate.

Guess what? I didn’t find any example of David Corn or President Obama saying that either. I also had a ton of trouble finding any Fox News host who contradicted their guests’ claims, but I guess that was something Howie didn’t see fit to state for the record.

As we all know by now, Kurtz doesn’t really function as a media critic as much as he does a media rehabilitator. It wouldn’t do for Fox to be identified as the primary source for so many of the false fearmongering tales that seem to grab their viewers’ attention without backing them up and giving them the old rehabilitation pitch. Never mind that senior citizens get so gripped in their fear of Obama the Muslim that they die, rather than go to the hospital. None of that matters so long as Howie can make sure Fox is immune to its critics.

It’s really pathetic.

Full transcript follows, via CNN.

KURTZ: David Corn, you made news this week with your new book, “Showdown.” You quote President Obama as making a charge against Fox News. It was picked up by Fox anchor, Bret Baier. Let me play something for the audience. I’m going to ask you a question about it on the other side.

(BEGIN VIDEO CLIP)

BRET BAIER, FOX NEWS ANCHOR: He told labor leaders that he was, quote, “Losing white males because, in part, fed up by Fox News, they hear that Obama is a Muslim 24/7, and it begins to seep in.”

For the record, we found no example of a host saying President Obama is a Muslim.

(END VIDEO CLIP)

KURTZ: First of all, you used to be a Fox News analyst before you went to MSNBC. Where is the fair and balanced comment from Fox in this book?

CORN: There is no – I was quoting what the president was saying in a larger meeting about where the political culture is, OK?

So he was talking about Glenn Beck and Sarah Palin representing the Senate Republican Party, and was not blaming Fox News.

He was saying, basically in part fed up by Fox News. There’s always excessive rhetoric out there. And they hear Obama is a Muslim 24/7.

KURTZ: You don’t think Fox New deserved the chance to respond to that?

CORN: No. I mean, Bret did and he got it wrong.

KURTZ: OK. We’ll come back to your beef with Baier.

CORN: I mean, listen -

KURTZ: But let me get Amy Holmes in on this same question. Is this a fair charge for Obama to make and fair for David to report it the way he did.

AMY HOLMES, ANCHOR, GBTV: Well, whether or not it’s fair for President Obama to make it, I think we’ve seen that President Obama is quite preoccupied with the coverage of himself by Fox News.

It’s not the first time he’s mentioned Fox News and I see that there is certainly a story there as to why the president is, you know, maybe much like Lyndon Johnson was, so preoccupied with his own press coverage.

And if you remember, President Bush got attacked for not following the press, for not reading the “New York Times” every morning.

As for David, you know, using this bit in his book – I haven’t read the entire context so I don’t know if he used it fairly or not.

KURTZ: OK. Let me -

HOLMES: But as I say, President Obama’s own preoccupation I think is the story.

KURTZ: Now, I didn’t find any example of a Fox host saying that President Obama is Muslim, so what Bret Baier said is accurate.

But here’s a clip of Sean Hannity interviewing a guest named Brigitte Gabriel about the question of why Obama is perceived by some, inaccurately, I need to add, as a Muslim.

(BEGIN VIDEO CLIP)

SEAN HANNITY, HOST, “HANNITY”: Do you think people maybe have taken all of those things and his actions as president and come to a wrong conclusion or what do you think?

BRIGITTE GABRIEL, ACT FOR AMERICA: Finally, people are paying attention to things after the fog has been lifted off of their eyes as to who did we really elect as president? The signs and information were all out there. President Obama was born into the Islamic faith, raised as a Muslim as a child, to a father who was a Muslim.

HANNITY: Do you think he is a Muslim?

GABRIEL: He attended Islamic schools. I cannot speak on what God he prays to in his private space.

(END VIDEO CLIP)

KURTZ: And they did add that President Obama spent 25 years in Jeremiah Wright’s Christian church. What’s your beef with what Bret Baier said?

CORN: Well, (UNINTELLIGIBLE) from Mother Jones which I’ll put on my Twitter feed, @DavidCornDC, after the show. But there are lots of cases when people on Fox are either validating this or sort of creating an environment.

Donald Trump comes on. He says why don’t we have the birth certificate? Maybe because it says he’s a Muslim. They had controversial pastor Robert Jeffress on who was asked – he said, actually, “Why do people think Obama is a Muslim? Duh?” I mean, so -

KURTZ: And you feel like they haven’t pushed back sufficiently. Others have made the claim. All right. David Corn, I’ve got to go. Amy Holmes in New York, David Corn here, thanks very much for joining us this Sunday morning.

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While discussing the upcoming arguments before the Supreme Court starting Monday on whether the Affordable Care Act is constitutional, ABC’s Terry Moran and guest Matthew Dowd both pointed out the obvious, much to the chagrin of This Week regular George Will, that there is politics involved with the Supreme Court deciding to hear this case.

MORAN: They took it at a different time, in some ways. The Republicans, Michele Bachmann, are making this the number-one issue. Some of the biggest mistakes the Supreme Court has ever made is when they decided cases they didn’t have to. And John Roberts as chief justice, loves the court, is very protective of its institutional authority. The more it gets involved in politics, the more that authority comes down.

WILL: I really disagree with Terry on this. I think the Supreme Court is composed of nine intelligent, conscientious judges who are prepared to judge in this case. Why did they take it? Because the circuits are in conflict, and the circuits — some important circuit judges say — in very persuasive opinions — that portions of the law — at least two portions — are unconstitutional, the Medicaid expansion, which is a burden that eviscerates (ph) federalism and, of course, the mandate.

What Will, Moran or any of the rest of them on this panel failed to mention was the name Clarence Thomas and his wife Ginni and whether Thomas ought to be recusing himself from the case. It’s been astounding to me to watch most of the media coverage over the last week and not see their names mentioned once.

If anyone needs a reminder of why Thomas should not be hearing this case and just how “political” his involvement is, I’ll just refer you to these posts:

Clarence Thomas “Forgot” 20 Years of Disclosure? Really?

Justice Clarence Thomas Should Resign For His Egregious Conflicts of Interest and Unethical Behavior

Ginni Thomas as Lobbyist? Really?

Clarence Thomas Fails to Disclose Citizens United In-Kind Contributions

Full transcript below the fold.

STEPHANOPOULOS: And tax capital gains as regular income. Let’s move on to health care. We heard from Michele Bachmann. She thinks that’s the biggest issue in this presidential campaign. Want to go to the Supreme Court right now. People have been lining up for about three days waiting for these arguments, oral arguments at the Supreme Court, unprecedented three days…

(CROSSTALK)

STEPHANOPOULOS: … starting on tomorrow, Monday. Terry Moran, you cover the court for us. And basically, the Supreme Court has four options that I can see, correct me if I’m wrong. They can uphold the law. They can overturn it in whole. They can split it. They can overturn the mandate, uphold the rest of the law. Or they can punt, just decide nothing until the tax takes hold in 2014. Which do you think is most likely and why?

MORAN: Well, the smart money is betting that the Supreme Court will uphold this law. Now, a lot of the same smart money bet that the Supreme Court would not declare corporations are people and have First Amendment or will award the 2000 election to George W. Bush.

That’s — I think that what — one of the overlooked factors here is the politics, and not the impact that the Supreme Court can have on the presidential campaign, but the other way. What does the presidential campaign do the way the justices think here?

The people’s representatives passed this law, whether you like it or not. Now the people are engaged in a great free democratic political debate. Why should the Supreme Court come in and call a halt to that debate preemptively and take the political…

(CROSSTALK)

MORAN: They can punt. They can punt. And I think they will.

ROBERTS: But why did they — why did they take it, then? Why did they take the case if they were going to (OFF-MIKE)

MORAN: They took it at a different time, in some ways. The Republicans, Michele Bachmann, are making this the number-one issue. Some of the biggest mistakes the Supreme Court has ever made is when they decided cases they didn’t have to. And John Roberts as chief justice, loves the court, is very protective of its institutional authority. The more it gets involved in politics, the more that authority comes down.

WILL: I really disagree with Terry on this. I think the Supreme Court is composed of nine intelligent, conscientious judges who are prepared to judge in this case. Why did they take it? Because the circuits are in conflict, and the circuits — some important circuit judges say — in very persuasive opinions — that portions of the law — at least two portions — are unconstitutional, the Medicaid expansion, which is a burden that eviscerates (ph) federalism and, of course, the mandate.

They’re going to decide — try at long last to see if there is any limiting principle on the ability of Congress to act simply because it asserts that whatever they’re regulating has a substantial impact on interstate commerce. If there is no limiting principle, then the Madisonian architecture of limited government is gone and the federal government has an unlimited…

(CROSSTALK)

STEPHANOPOULOS: And, George, the way they posed the question — or the way a lot of the briefs pose the question is if we can — if the government can force you to buy health insurance, why can’t it force you to eat broccoli?

On the other hand, you look, Cokie, at a lot of the precedents, and if the court follows the precedents, even Justice Scalia and Justice Roberts in the past have voted for an expansive view of the Commerce Clause.

ROBERTS: (OFF-MIKE) Commerce Clause, which, of course, says that the Congress has the right to regulate interstate commerce. But the — and everything now is considered interstate commerce.

WILL: That’s the problem.

ROBERTS: Well (OFF-MIKE) President Kennedy and Mrs. Murphy’s boarding house. If it’s in interstate commerce, it’ll be affected. Well, of course, the ’64 civil rights law did affect every — every institution, and that is the way it has been interpreted.

But the question here is, of course, the difference is that it’s asking you to do something and to purchase something. And, of course, the answer is, well, health care is different, that we all will participate in the health care system one way or the other. And…

(CROSSTALK)

ROBERTS: … people do is to go to the emergency room, which we all then end up paying for.

BRAZILE: Yes. The law is — I believe — I’m not a lawyer. I don’t even pretend to be one. The law is constitutional. Multiple circuit courts have upheld the individual responsibility clause. Congress has broad authority under the necessary and proper clause and interstate commerce clause.

And the law is also fair. I mean, to require that people who can afford to purchase insurance, I think, it’s going to be ruled constitutional.

STEPHANOPOULOS: Matthew, to go back to Terry’s original point, this is coming in the middle of a presidential campaign. How does it play? If the Supreme Court upholds it, does it leech out all of the anger? Or does it just create a backlash?

DOWD: Well, that’s what I think. The Supreme Court always acts like they’re above politics, but these days, they can’t be above the politics of anything. They basically have to enter into the middle of it.

To me, this — if Mitt Romney’s the likely Republican nominee — I disagree totally with Michele Bachmann on this and many other Republicans — the idea that this is going to be a big negative for Barack Obama — first of all, Mitt Romney can’t really make an authentic argument about this law, by having passed a version of this law in the state, and which…

ROBERTS: And, by the way, which is doing very well.

DOWD: … the president copied. But even if this is overturned, which I have some doubts that it will, but even if it’s overturned, I think that actually helps the president, because what happens then at that point, the president says, I tried to give you — you know, get rid of sort of the clauses that you don’t like. I tried to expand it so people could still keep coverage. I tried to do this, and I tried to do this, and this — here we go with the Supreme Court, and the Republicans, and this what they did — I actually think in the end this law, against Mitt Romney, at worst is neutral and at best could help the president.

WILL: I think Matt may be right about that, but, again, I think this is a serious argument about serious constitutional issues. Independent of the fact that the public doesn’t like it or the fact that it is the president’s signature achievement.

To the argument that health care is unique because everyone uses it, everyone uses food, shelter, clothing, energy, transportation. This is a comprehensive argument, if you let it loose in this case.

Second, a judge has actually said, well, we’re not regulating the inactivity of not buying health insurance. We’re regulating the mental activity of choosing not to buy health insurance. When you get into this kind of Orwellian language, you’re doing something wrong.

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(h/t Heather at VideoCafe) 

This Week with George Stephanopoulos marks the passings of two soldiers in Afghanistan.

US Army SGT Jamie D Jarboe, 27, Frankfort, IN
US Army SPC Dennis P Weichel Jr, 29, Providence, RI

In addition, the following notable names lost their lives this week. Tongan King George Tupou V, defense contractor Sanford McDonnell, director Ulu Grosbard, entrepreneur Murray Lender, and athlete Lonnie Wright.

According to iCasualties, the total number of allied service members killed in Afghanistan is now 2,935. During the last week, Iraq Body Count lists 112 Iraqi civilians killed, for a total of 260 for the month to date.

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White House senior advisor David Plouffe on Sunday blasted several Republican presidential candidates after they claimed President Barack Obama was trying to divide America by speaking about an unarmed African American teen in Florida who was gunned down by a neighborhood watch enthusiast.

Responding to a reporter on Friday, Obama said he felt for the parents of slain 17-year-old Trayvon Martin after he was pursued and gunned down by neighborhood watch leader George Zimmerman.

“You know, if I had a son, he would look like Trayvon,” the president explained.

By Friday afternoon, former House Speaker Newt Gingrich was accusing Obama of trying to divide the country with racial comments.

“That’s just nonsense,” Gingrich said of Obama’s remarks. “Dividing this country up, it is a tragedy this young man was shot.”

Also on Friday, former Pennsylvania Sen. Rick Santorum lashed out at the president.

“And then, his, again, politicizing it, this is not what presidents of the United States do,” Santorum told conservative radio host Hugh Hewitt. “What the president should do is try to bring people together, not use these types of horrible and tragic cases to try to drive a wedge in America.”

On Sunday, CNN’s Candy Crowley asked Plouffe for his reaction.

“At some points, this Republican primary has been more of a circus show and a clown show. And those two comments are really irresponsible. I would consider them reprehensible.”

“The president spoke movingly about this tragedy as a father. He made it clear that there’s investigations going on. So, I think those comments were really hard to stomach really, and I guess trying to appeal to people’s worst instincts.”