IRS Apology Misleading

    Lois Lerner blamed a “local career employee” of the Cincinnati office. That is disingenuous for at least two reasons: 1. All applications for exempt status are mailed to Covington, KY, which is across the river from Cincinnati. The Cincinnati IRS office handles applications for exempt status from all states. This is true for both 501(c)(3) and (c)(4) applications. As the Director of the Exempt Organization | Read More »

    Flawed, but likely not harmful (beyond immediate issue)

    The taxing power argument by the Chief Justice is flawed in several ways.  As the dissent noted, the Court should not have decided such an important case on grounds so lightly briefed and argued. Essentially, the Court guts the Constitutional requirement that capitations be apportioned.  If what would otherwise be a capitation has any exceptions or exemptions, it is not a capitation.  That is so | Read More »

    Day Two: Obamacare is Going Down

    From the diaries… Wow.  To continue with Handicapping Health Care. Bottom line, I stand by what I said in Handicapping Health Care; however, I increase the odds.  I would handicap it at 65% unconstitutional.  The vote is likely 5-4, but plausibly 6-3, and remotely 7-2.  If the vote is Constitutional, it will be 5-4 (95% chance) and 6-3 (5% chance). The Solicitor General began horribly, sounding | Read More »

    Handicapping Health Care

    [from the diaries] Supreme Court oral arguments on the Affordable Care Act begin Monday.  We can expect a decision either in June or October.  I predict June.  What will it be?  I’ll go out on a limb and predict Unconstitutional by 5-4.  My confidence level is under 60%.  I would not be surprised at Unconstitutional, 6-3, but the odds are less than 1%.  Constitutional at | Read More »

    Health Care Litigation Update

    Two Federal Courts found the health care mandate constitutional – in Michigan and in Virginia.  Two others, in preliminary rulings, indicate they will likely rule the mandate unconstitutional – in Virginia and in Florida.  For what it is worth, the former are both Democrat appointees and the latter Republican appointees. The Michigan case is before the Sixth Circuit Court of Appeals, with briefs due soon.  The | Read More »

    Virginia Case on Obamacare

    The Court denied a motion to dismiss.  The opinion is here.  Procedurally, this is significant as it moves the case forward for a full review.  Is it predictive of anything?  After reading the decision several times, these are my thoughts: Particularly interesting are the Court’s comments that the penalty is beyond the outer limits of the commerce clause so far.  At page 25, the Court | Read More »


    Health Care Penalty: Unconstitutional Tax

    As I’ve posted before, the Health Care Act violates the Taxing Powers of the Constitution. My more extensive study now appears in Of Constitutional Decapitation and Health Care. The article appears in the July 12, 2010 issue of Tax Notes, the premier publication on Tax Law matters. As I understand the copyright issues, I may post this link and you may download a copy for | Read More »

    Sad Day in America: CLS lost

    While the opinion appears limited in scope and the remand may deal with selective enforcement, allowing state institutions to force student organizations which receive very modest support (largely from student fees) to be open to all is unfortunate. What will become of CLS, Federalists, College Republicans and other groups.  Must we now allow all persons not only to attend, but also to join and to | Read More »

    Of Constitutional De-Capitation

    Of the many arguments regarding the unconstitutionality of the Health Care Act, its containing an un-apportioned Capitation tax is the strongest. Article 1, section 9 of the U.S. Constitution provides: No capitation, or other direct, Tax shall be laid, unless in Proportion to the Census or Enumeration herein before directed to be taken. As the Supreme Court correctly explained in Knowlton v. Moore, 178 U.S. | Read More »

    This is MY Town Hall Meeting

    “I set the rules.” –Rep. Baron Hill (D-Ind), soon to be former Representative if there is justice in Indiana. Watch this incredible video in which the Representative denies a Journalism student permission to video-tape “His” Town Hall meeting. He does so because he fears it might end up on You-tube, which, of course, it did . . . because, little did he know, someone else | Read More »