"We felt that Wikileaks was developing in the wrong direction... There's too much concentration of power in one organisation; too much responsibility; too many bottlenecks..."

Coming soon: "Openleaks."

"Federal Judge Invalidates Key Provision of Health Care Law."

"Breaking news."

Judge Henry E. Hudson... wrote that the law’s central requirement that most Americans obtain health insurance exceeds the regulatory authority granted to Congress under the Commerce Clause of the Constitution. The insurance mandate is central to the law’s mission of covering more than 30 million uninsured because insurers argue that only by requiring healthy people to have policies can they afford to treat those with expensive chronic conditions.

The judge wrote that his survey of case law “yielded no reported decisions from any federal appellate courts extending the Commerce Clause or General Welfare Clause to encompass regulation of a person’s decision not to purchase a product, not withstanding its effect on interstate commerce or role in a global regulatory scheme.”

It sounds as though he's adopted the reasoning that we've expected a judge striking down the provision to use.

The opinion by Judge Hudson, who has a long history in Republican politics in northern Virginia, continued a partisan pattern in the health care cases. Thus far, judges appointed by Republican presidents have ruled consistently against the Obama administration while Democratic appointees have found for it.

I like the way the NYT report doesn't say it's Hudson who decided according to political preference. There's just a "pattern" here, and the judges on both sides of the issue have followed the pattern. Maybe some, none, or all are following politics. That's the best way to report it.

ADDED: From the opinion (citations omitted), here's the key conclusion about the Commerce Clause:

The power of Congress to regulate a class of activities that in the aggregate has a substantial and direct effect on interstate commerce is well settled. This even extends to noneconomic activity closely connected to the intended market. But these regulatory powers are triggered by some type of self-initiated action. Neither the Supreme Court nor any federal circuit court of appeals has extended the Commerce Clause powers to compel and individual to involuntarily enter the stream of commerce by purchasing a commodity in the private market.

A footnote at that point says: "The collective effect of an aggregate of such inactivity still falls short of the constitutional mark.

But what about the Necessary and Proper Clause? Orin Kerr detects an "obvious and quite significant error":

Judge Hudson assumes that the power granted to Congress by the Necessary and Proper Clause... does not expand Congress’s power beyond the Commerce Clause itself...

If a person’s decision not to purchase health insurance at a particular point in time does not constitute the type of economic activity subject to regulation under the Commerce Clause, then logically an attempt to enforce such provision under the Necessary and Proper Clause is equally offensive to the Constitution.

Judge Hudson does not cite any authority for this conclusion... The point of the Necessary and Proper clause is that it grants Congress the power to use means outside the enumerated list of of Article I powers to achieve the ends listed in Article I. If you say, as a matter of “logic” or otherwise, that the Necessary and Proper Clause only permits Congress to regulate using means that are themselves covered by the Commerce Clause, then the Necessary and Proper Clause is rendered a nullity.

Justice Stephen Breyer on "Fox News Sunday."

Watch here. Chris Wallace does a great job of needling him about things Breyer's written about constitutional interpretation and, Breyer, as I'd expect, rises to the occasion. Breyer literally waves the Constitution around, in tiny booklet form, and figuratively waves around a bigger book, his book "Making Our Democracy Work."

Now, let's rummage through the transcript. Chris Wallace questions him about "just applying the law as written," and Breyer plugs in the expected elementary lesson about the concision of the phrases in the Constitution and the need to apply them in the changed circumstances of the modern world (airplanes! the internet!), and then Wallace displays the text of the 2d Amendment:

WALLACE: "A well regulated militia being necessary to the security of a free state, the right of the people to keep and bear arms" -- the right of the people to keep and bear arms -- "shall not be infringed." Now, Justice, I understand why, as a matter of policy, in a world with a lot of urban violence and big cities, that some people would say we need gun control, particularly in a big city like Washington, as they have here, and in Chicago. You ruled in both of those cases. And in both cases the court voted twice over your dissent that the founders meant what they said, people have a right to bear arms.

Breyer, of course, is ready for this:

BREYER: Yes. Yes. That's a wonderful example because, of course, it's not a matter of policy. It is a matter of what those framers intended. And you saw that first phrase, "A well regulated militia being necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed."  What does that mean, the militia? Historians told us, and the dissenters thought they were right, that what that meant was that James Madison, thinking, "I've got to get this document ratified," was worried about opponents who would think Congress would call up state militias and nationalize them. "That can't happen," said Madison. And therefore, he wrote the Second Amendment to prove it. Now, if that was his motive historically, the dissenters were right.

There's some talk about judges acting like judges and how history can't answer some of the details. How do the old words and the old intent apply to new things? Breyer lists machine guns and torpedoes, and then, deviously, handguns. Wallace responds:

WALLACE: I understand. But it certainly didn't provide for a ban, at least that's what the court's decision was, your court's -- it didn't provide for a ban on all handguns as they have here in Washington, D.C.

BREYER: Are you a sportsman? Do you like to shoot pistols at targets? Well, get on the subway and go to Maryland. There is no problem, I don't think, for anyone who really wants to have...

WALLACE: But -- but it's...

BREYER: ... a gun.

WALLACE: ... but that's a policy issue. That's not a constitutional issue.

Breyer chooses not to jump on this point, perhaps because he'd have to say things that conservatives say. He'd have to promote federalism. Let me sketch it out.

If there isn't a right covering this particular subject, then state and local government will be able to legislate the policies that they, as a community, think are best. Yes, it's a policy issue, and — Breyer would say, if he'd gone on — that's why it's appropriate for legislative bodies to make decisions about it. If you don't like those decisions, the great thing about the United States is that you can move around and go to places that have policy preferences that suit your tastes. You have a right to travel and a right to change your residence to another state. And you also have the right to participate in politics, so there's also the alternative of trying to get the law in your state or city changed, so that handguns are not banned. Breyer's approach to the Second Amendment lets the people make the gun control laws what they want them to be and, when they do, they won't get caught up in litigation over the choices they make.

This is what conservatives say all the time about abortion and the separation of church and state (to cite the 2 most glaring examples). But here's Right Wing News — Chris Wysocki — excoriating Breyer for saying "get on the subway and go to Maryland."

Mind-boggling really, isn't it? Gee little black girl, do you want to go to the same school as white girls? Well, get on the subway and go to Maryland!

Well, no. There is a federal constitutional right covering that point, so you don't get the state-to-state variation. And that's the question: Is it a federal constitutional right or not? When you're arguing that there isn't a right, you're saying the law can vary from state to state. When is that intolerable and when isn't it? We all agree (now) to the uniform resolution of the school segregation problem that excluded decentralized decisionmaking. There is an Equal Protection right.

But there was, recently, a disagreement about the Second Amendment, and Breyer was on the side that thought there was no individual right. Put another way, Breyer's side of the Court thought that decentralized policymaking could govern. Do you think that's terrible? If you believe that there's a right, then, yes, of course, you do. But think of something else, where you think the Court is wrong about saying there's a right — perhaps, for you, abortion — and then, don't you remember all the times you made the argument that it wouldn't be so terrible because individual states could make their own decisions and people could move (or travel) to the states that gave them what they wanted?


Wysocki continues:

So mister, what if you are in a wheelchair? This doctor's office has stairs. If you want to see an accessible doctor, get on the subway and go to Maryland!

Whoa! You think the Constitution obliges private citizens, like doctors, to make their buildings wheelchair accessible?! That's so left-wing! Check your blog's name! What's the "Right Wing News" today, that righties have gone all lefty? That would be news!

***

(I have some more things to say about the Breyer interview, but I'll start a new post for that.)

CORRECTION: Sorry, I had "Chris Matthews" in the first sentence of this post. It's Chris Wallace.

About that Christmas tree.

I said it's okay — and green enough — to get an artificial Christmas tree. Then Professor Yin came in with some scary stuff about lead, and Professor Bainbridge says don't get a tree at all, and don't even get presents — give it all to charity.

What's the best solution to the Christmas tree problem?
	A real tree, a cut tree. Follow tradition!
	A nice new artificial tree. The lead problem is solved, right?
	Some sort of potted tree, that you reuse or replant or something.
	No tree at all!
pollcode.com free polls

The "60 Minutes" profile of John Boehner.

Very nicely done, with much crying. Watch the whole thing — plus extras — here. Don't miss the last line.

ADDED: Meade said:

Leslie Stahl: "...and third in line to the presidency."

Oh, I see - after Friday's presser, Obama is now first in line.

Did you see Paul McCartney on "Saturday Night Live" last night?

Oh, that wasn't last night. That was back in 1993. Here's a report of last night's show, and here's the clip of him doing — of all things — "A Day in the Life." I don't think The Beatles ever did that live. It was weird having Paul sing the John part (as well as the comb-across-my-hair Paul part), and the last verse was replaced by the chorus of "Give Peace a Chance" — in case you didn't pick up on the tribute to John (a few days after the 30th anniversary of his death.)

"I wasn't really dead," says Paul, in that 1993 clip, when Chris Farley asks if the "Paul is dead" thing was a hoax. And now, Paul lives on, and poor Chris is dead. Chris was born here in Madison and is buried here, in a cemetery at the end of a street named Farley.

At the Blizzard Café...

... you can dust away the last of the snow...



... and peer into the cold sunset.

Bloomberg uses the quirk of phrase that shows he hasn't absorbed the most basic message of the Tea Party movement.

From today's "Meet the Press":

DAVID GREGORY: Do you believe the tax cuts have an actual stimulative effect on the economy?

BLOOMBERG: I don't think there's any question that they put more people -- more money in people's hands, and I think that the public will do a better job with more money in their hands to stimulate the economy than you will do with government programs.

GREGORY: But, Mayor, economists say, especially wealthier Americans don't end up necessarily spending money that they, that they keep through tax cuts. And look at the effect of the Bush tax cuts over a decade... what some have called a decade of, of futility, if you look at the number of jobs created.

BLOOMBERG: OK. But number one, some of these things are not connected, they just happen to have at same -- happened at the same time. And I think the more money you put in people's hands, the more they will spend. And if they don't spend it, they invest it. And investing it is another way of creating jobs.

Did you notice the phrase? He uses it twice. Interestingly, David Gregory takes care to avoid it, so Bloomberg had a good prompt, but he used it anyway.

Tablescape with pizza.

ADDED: The red thing is a Ball of Whacks.

IN THE COMMENTS: Palladian has his tablescape, which contains an image of this page:



And Roger von Oech, the designer of the Ball of Whacks stops in.

It was 10 years ago today. Bush v. Gore.

The much-maligned Supreme Court decision came down, crushing the dreams of those of us whose hearts raced at the legal arguments that took the sound-bite form "count all the votes" and rankled at the other side's sound bite: "the votes have been counted... they've been counted and recounted."

Oh! How I wish I'd been blogging then. There were such interesting details every step of the way. Legal angles that could have been explained and examined. The reporting on the TV news was so biased and stupid. Things would have played out a lot differently if there had been legal bloggers picking through the fast-accumulating wreckage hour by hour. Instead we got those TV sound bites.

Have you noticed that you don't hear about "sound bites" — "5-second sound bites" — anymore? There's "viral video" now. Viral video and internet memes... and bloggers to call bullshit on mainstream media.

Ah, but what fun it would have been to have been calling the bullshit in the late autumn of the year 2000.

"In an effort to relieve her boredom, Julie proceeded to throw a glass out a window."

Am I the only one here who remembers listening to "The Anecdote of Horatio & Julie" on the radio, late at night, in the 1960s... WFMU?

What item of sports memorabilia sold for $4.3 million — a sports memorabilia record?

The original rules of basketball.

The two, signed typescript pages that set out the 13 rules were drawn up by the sport's Canadian founder, James Naismith, in 1891....

Naismith had written the rules to set up a new winter sport for boys at a YMCA in Springfield, Massachusetts, where he was a physical education teacher.

The school had given him two weeks to come up with a new sport and he finalised it the day before the deadline, pinning the rules on a gym bulletin board.

Oh, and by the way...

At the same auction, President Abraham Lincoln's Emancipation Proclamation, which declared the freedom of slaves held in southern states during the Civil War and was owned by ex-Senator Bobby Kennedy, fetched $3,778,500.

But that's not the original handwritten proclamation, which is in the National Archives. The Bobby Kennedy document is "one of 48 printed copies signed by Lincoln." Bobby paid $9,500 in 1964 for $9,500. Who knows how much of the $3,778,500 comes from the infusion of Kennedyosity.

Also at the auction, this guidon:

"Home Secretary Theresa May has confirmed there was 'contact' between the Duchess of Cornwall and one of the protesters who attacked her car."

"But she did not confirm reports the duchess was poked with a stick during student protests on Thursday."

Poked with a stick! The Duchess!

***

"The Duchess! The Duchess! Oh my dear paws! Oh my fur and whiskers! She'll get me executed, as sure as ferrets are ferrets!"

"Will Barack Obama depart as President of the United States?"

You can bet on it.

"A blizzard warning continues Sunday in much of southern Wisconsin until 6 p.m...."

"... with north and northwest winds gusting up to 45 mph blowing snow across roadways, the National Weather Service said.... Wisconsin Emergency Operations Center in Madison... is advising everyone in the state to stay home Sunday...."



Okay.

IN THE COMMENTS: MamaM said:

28? 18 with another 10 under the surface.

Alert Alert: Bowl Deceptively Deep.
Recall Previous Loss. Recalculate

Ok, 36 at the most.

She's remembering last December's orange bowl challenge. I said:



(Extra info about the amazing bowl here.)

Mommy blogging.

The other side of.