The Daily Parker

The temperature in downtown Chicago edged up to 100°F (38°C) this afternoon:

At 2:23 pm the temperature at Midway Airport as measured by observer Frank Wachowski reached 37.83°C . Last summer Midway recorded triple-digits on two occasions: July 20, 37.8°C, and July 21, 38.3°C. On both of those days the city's official thermometer at O'Hare International Airport peaked at 37.2°C.

So far today O'Hare's temperature has peaked at 37.2°C but should reach 37.8°C or higher later this afternoon. The city's last official 37.8°C day was on July 24, 2005 when the mercury hit 38.9°C.

I really don't want to go outside...but I have to go home at some point. Maybe I'll do an impromptu pub crawl to and from the El...

In my first pass through National Federation of Independent Business v. Sebelius, I am alternately stunned, fascinated, confused, and relieved. The more I think about it, though, the more I realize that big business was the big winner today.

Chief Justice Roberts delivered the opinion of the Court, upholding nearly all the provisions of the Affordable Care Act (aka "Obamneycare"). Justice Kennedy, usually the swing vote, joined on the right-wing dissent.

In a nutshell, the court ruled:

• The Anti-Injunction Act didn't bar the suit;
• The individual mandate can stand; but
• Congress can't cut off Medicaid funds to states if the states fail to expand Medicare coverage.

The Court decided the first two points on mutually-contradictory grounds. The Anti-Injunction Act prohibits people from filing suit "for the purposeof restraining the assessment or collection of any tax." So if the individual mandate is a tax, then no one can sue to stop it until after it actually takes effect. Under the individual mandate part of the ACA, the law says if you don't buy insurance as mandated starting in 2014, you have to pay a "penalty" to the IRS. Well, said Roberts, if Congress says it's a penalty, then it's not a tax, and so the Anti-Injunction Act doesn't apply. In other words, if Congress says something is a horse, then you can't sue it to keep it from flying.

In law school, we learn a Jedi mind trick called "permissibly advancing mutually-exclusive arguments." That is, a lawyer is not only permitted but expected to offer all reasonable theories of a case when making an appeal, even if they don't make any sense when viewed all together.

Say a lawyer is appealing a murder conviction. She may, with the Court's blessing, argue: "First, the judge used the wrong set of jury instructions. Second, the jury was tainted by the prosecutor. Third, the judge improperly let my client's confession into evidence. Fourth, the eyewitnesses who testified they saw my client kill the guy were tainted by the prosecutor. Fifth, the judge should have allowed my client's rabbi to testify. Sixth..."

Obviously, they can't all be true. And a reasonable person (other than a lawyer) might surmise from the arguments that, really, the client's a murderer. This is the sort of thing that (a) makes people hate lawyers and (b) provides us with safeguards against the legal process running amok. It's not obvious to most people, but the ability to make all possible arguments on appeal, even if some are self-contradictory, is much fairer to everyone than trying to guess which one argument will prevail.

After that explanation, it should come as no surprise that the Court found the individual mandate constitutional because it's a tax. Yes, Congress called it a horse; but it's a duck after all, and ducks gotta fly. "[I]t is well established that if a statute has two possible meanings, one of which violates the Constitution, courts should adopt the meaning thatdoes not do so," Roberts said in the Court's opinion today:

As we have explained, "every reasonable construction must be resorted to, in order to save a statute from unconstitutionality." Hooper v. California, 155 U. S. 648, 657 (1895). The Government asks us to interpret the mandate as imposing a tax, if it would otherwise violate the Constitution. Granting the Act the full measure of deference owed to federal statutes, it can be so read....

I should underscore here that the Court said the individual mandate is not constitutional as a regulation of interstate commerce or as a "necessary and proper" act of Congress. This, I believe, is how the four moderate Justices got Roberts on board. Roberts seems like a true conservative. He generally doesn't want to overturn acts of Congress, but at the same time he generally doesn't to expand Federal power. He writes: "The Federal Government does not have the power to order people to buy health insurance. Section 5000A would therefore be unconstitutional if read as a command. The Federal Government does have the power to impose a tax on those without health insurance. Section 5000A is therefore constitutional, because it can reasonably be read as a tax."

Similarly, he overturns the Medicaid expansion program, with its penalty of withholding substantial Medicaid funding if states don't comply, as:

much more than "relatively mild encouragement"—it is a gun to the head. Section 1396c of the Medicaid Act provides that if a State’s Medicaid plan doesnot comply with the Act’s requirements, the Secretary ofHealth and Human Services may declare that "further payments will not be made to the State." 42 U. S. C. §1396c. A State that opts out of the Affordable Care Act’s expansion in health care coverage thus stands to lose not merely “a relatively small percentage” of its existing Medicaid funding, but all of it.

(Emphasis in the original.) He goes on, rebutting a point Justice Ginsburg makes in her concurrence:

The Medicaid expansion, however, accomplishes a shift in kind, not merely degree. The original program was designed to cover medical services for four particular categories of the needy: the disabled, the blind, the elderly, and needy families with dependent children. See 42 U. S. C. §1396a(a)(10). Previous amendments to Medicaid eligibility merely altered and expanded the boundaries of these categories. Under the Affordable Care Act, Medicaid is transformed into a program to meet the health careneeds of the entire nonelderly population with income below 133 percent of the poverty level. It is no longer aprogram to care for the neediest among us, but rather anelement of a comprehensive national plan to provide universal health insurance coverage.

Ah, there it is. The bugbear. The Policy that Will Not Pass: National health insurance coverage.

Roberts' opinion is a grudging concession to the 21st century, not a victory for progressives. His rationales for overturning Medicaid expansion, and for rejecting two good reasons for the individual mandate are designed to prevent a future Congress from moving to a single-payer system in the future. The opinion holds the line on keeping wealth in private hands, which, after all, is the right's principal goal. Private interests—insurance companies—will continue to profit from what ought to be a public service. (Don't forget: big insurance companies wanted the mandate, because it solves a huge business problem for them.)

Today is a win for the American people, and for President Obama; but Roberts, no idiot he, made sure it was a win for the big-business right as well.

(If I have the stomach for it, I'll read the Alito dissent later today.)

The New York Times just sent me a bulletin saying the Supreme Court has ruled on the Affordable Care Act, so I rushed to the Court's website to find...U.S. v. Alvarez.

In this case, a man falsely claimed to have won the Medal of Honor, and was convicted under 18 USC 704 (the "Stolen Valor Act"), which makes it a crime to lie about receiving military honors. In a 5-3 decision, the court said the act is unconstitutional under the first amendment. Justice Kennedy wrote the court's opinion, joined by Chief Justice Roberts and Justices Sotomayor and Ginsburg; Justice Breyer concurred (joined by Justice Kagan); and Justices (and Republican party operatives) Alito, Scalia, and Thomas dissented.

I'll come back to that—because the Court just announced National Federation of Independent Business v. Sebelius. Let me read this and follow up. Gimme a second.

Some misguided people in the ancestral homeland want to rename Big Ben in honor of a living monarch:

London's Big Ben clock tower is to be renamed Elizabeth Tower to mark the queen's 60th year on the British throne.

Prime Minister David Cameron welcomed the name change. "The renaming of the Clock Tower to the Elizabeth Tower is a fitting recognition of the Queen's 60 years of service. This is an exceptional tribute to an exceptional monarch," he said.

Reactions among the public were mixed, however. "Big Ben is so old and iconic, what is the sense in changing its name? All over the world people won't understand what the Elizabeth Tower is," said Romanian tourist Mara Ciortescu.

Hear, hear, Miss Ciortescu. Her Majesty isn't some Emirati despot trying to make a name for herself by, for example, conditioning a huge "loan" on naming rights. She is Queen Elizabeth the Second, by the Grace of God Queen of this Realm and of Her other Realms and Territories, Head of the Commonwealth, Defender of the Faith. She does not need a bell named after her.

I could make a snarky comment about how right-wing politicians often use some patriotic ruse to distract from their abject failure to solve real problems, but nothing comes to mind. Elizabeth Windsor didn't forge the damn bell; neither did Sir Benjamin Hall. The difference is, Sir Benjamin is dead; Queen Elizabeth is not. Naming things after living people, no matter how noble the person in question may be, is simply not done. The Cameron government should know that. I expect the sovereign would agree.

I don't know how extensive this is, but Google Maps street view now goes inside buildings:

To see this for yourself, go on Google Maps to 1028 W Diversey Pkwy, Chicago, 60614. Click on the balloon over Paddy Long's Pub, and click Street View. Notice the double chevron pointing toward the sidewalk:

Click that. And then explore.

I can only weep that we didn't have this kind of data throughout history to see how people lived in the past. And I can only weep for what this will do to privacy.

Update: It looks like they mostly have bars and pubs, including Tommy Nevin's, where Parker spent much of his puppyhood.

Chicago is about to get hotter than the pit of hell:

Our predicted 39°C high Thursday would mark the first "official" triple-digit [Fahrenheit] temperature in Chicago in 7 years. (Note: 38°C readings occurred at Midway Airport twice last July—but NOT at O'Hare, the official site.) And the heat appears likely to hang on through the coming weekend and into next week—though scattered thunderstorms may bubble up in spots and afternoon breezes off Lake Michigan may temper the hottest readings on area beaches from Friday forward—though only modestly.

Monday's comfortable high of 24°C high fell 3°C below normal and was the coolest daytime high here in 12 days.

So what can anyone do knowing this kind of heat is coming? Spend as much time outside as possible before it does, of course! When's lunch?

The U.S. Supreme Court handed down three decisions in the last few minutes that generally change nothing, though one of them was unexpectedly unanimous.

First, in Arizona v. U.S., a unanimous court (except Justice Kagan, who recused herself) agreed that the supremacy and naturalization clauses make Arizona's draconian immigration law unconstitutional. Justice Kennedy wrote the opinion; Republican party operatives Justices Scalia, Thomas, and Alito dissented in part.

In his dissent, Scalia proposes changing U.S. law to allow individual states to exile people:

Today’s opinion...deprives States of what most would consider the defining characteristic of sovereignty: the power to exclude from the sovereign’s territory people who have no right to be there.

What the...? For argument, even if individual states had that power at some point in U.S. history, states long ago gave it up. By "long ago" I mean in 1865, when the principle of national sovereignty was demonstrated conclusively. Scalia quotes from a 1758 treatise and the Articles of Confederation, and the Sedition Act to shore up his opinion. I'd say he's lost his mind but that presupposes facts not in evidence.

Thomas agrees with the result but dissents on the grounds that, well, the supremacy clause doesn't exist. Actually, he finds "that there is no conflict between the 'ordinary meanin[g]' of the relevant federal laws and that of the four provisions of Arizona law at issue here," which makes his view of the relevant statutes—how does one say?—uniquely narrow.

Alito's partial dissent has a little more nuance, but still comes from a belief in limiting federal power and granting states more authority within their borders.

Second, the Court issued a 5-4 per curiam decision (without a signed opinion) in American Tradition Partnership v. Montana, striking down a century-old Montana law prohibiting corporations from spending money on elections. No surprise there; the party hacks simply upheld Citizens United. However, Justice Breyer wrote a short dissent that encapsulates the frustration the non-stooges on the court feel about the majority:

Montana’s experience, like considerable experience elsewhere since the Court’s decision in Citizens United, casts grave doubt on the Court’s supposition that independent expenditures do not corrupt or appear to do so.

Were the matter up to me, I would vote to grant the petition for certiorari in order to reconsider Citizens United or, at least, its application in this case. But given the Court’s per curiam disposition, I do not see a significant possibility of reconsideration.

Finally, the Court ruled 5-4 in Miller v. Alabama that 14-year-old children can't be sentenced to life without parole, no matter what they've done. Justice Kagan delivered the opinion for the rational side of the court, saying the 8th Amendment prohibition of cruel and unusual punishments means that children should have a chance at parole, someday. Roberts wrote the general dissent for the other bunch, with Thomas and Alito offering additional dissents because they weren't happy just voting "no" once. Roberts says that life without parole isn't in itself cruel or unusual; Thomas says the decision violates original intent; and Alito says that some crimes are so big they deserve big punishments.

Stay tuned for the big decision on the Affordable Care Act this Thursday...

James Fallows today suggested a parlor game you can play at home:

This is distilled from a longer item earlier today, at the suggestion of my colleagues. It's a simple game you can try at home. Pick a country and describe a sequence in which:

• First, a presidential election is decided by five people, who don't even try to explain their choice in normal legal terms.
• Then the beneficiary of that decision appoints the next two members of the court, who present themselves for consideration as restrained, humble figures who care only about law rather than ideology.
• Once on the bench, for life, those two actively second-guess and re-do existing law, to advance the interests of the party that appointed them.
• Meanwhile their party's representatives in the Senate abuse procedural rules to an extent never previously seen to block legislation—and appointments, especially to the courts.
• And, when a major piece of legislation gets through, the party's majority on the Supreme Court prepares to negate it -- even though the details of the plan were originally Republican proposals and even though the party's presidential nominee endorsed these concepts only a few years ago.

How would you describe a democracy where power was being shifted that way?

I would describe it as a creeping oligarchy, or even, given the party in question, a shuffle towards feudalism. It's nice to know I'm not at home. (And also that James Fallows is a much better writer than I am.)

I have just spent an hour of my life—one that I will never get back—trying to figure out why I couldn't install any software from .msi files on one of my Windows 7 machines. Every time I tried, I would get a message that the installer "could not find the file specified."

I'll spare you all the steps I went through to figure out why this was happening, and get to the punchline:

Yeah, you see, the SYSTEM account needs full control over any file you're trying to install on Windows. Here's how it should look:

So, if you're a security-conscious individual who's locked down his PC thoroughly, and you can't seem to install anything on Windows anymore, check the permissions on the folder containing the .msi file.

As we say in programming: herp-a-derp.

Continuing my general theme the last few days, the New York Times reminds us what Mitt Romney's biggest backer really wants:

Mr. Adelson’s other overriding interest is his own wallet. He rails against the president’s “socialist-style economy” and redistribution of wealth, but what he really fears is Mr. Obama’s proposal to raise taxes on companies like his that make a huge amount of money overseas. Ninety percent of the earnings of his company, the Las Vegas Sands Corporation, come from hotel and casino properties in Singapore and Macau. (The latter is located, by the way, in China, a socialist country the last time we checked.)

Because of the lower tax rate in those countries (currently zero in Macau), the company now has a United States corporate tax rate of 9.8 percent, compared with the statutory rate of 35 percent. President Obama has repeatedly proposed ending the deductions and credits that allow corporations like Las Vegas Sands to shelter billions in income overseas, but has been blocked by Republicans.

Mr. Obama’s Justice Department is also investigating whether Mr. Adelson’s Macau operations violated the Foreign Corrupt Practices Act, an inquiry that Mr. Adelson undoubtedly hopes will go away in a Romney administration. For such a man, at a time when there are no legal or moral limits to the purchase of influence, spending tens of millions is a pittance to elect Republicans who promise to keep his billions intact.

What title should a man get when he donates $100 million to an election campaign? Would that be worth an earldom or a duchy?