At balkinization, Jack Balkin points to his Atlantic article in which he discusses a 1950 taxing power case that seems clinching to me with regard to whether the individual mandate penalty is constitutional as a valid exercise of Congress' taxing power. I'm surprised it was not discussed more (and feel remiss in not having discussed it myself.) Balkin writes:

It also doesn't matter that the real purpose of the tax is to regulate behavior. Lots of taxes are designed to do just that -- think about taxes on polluters as an example -- and federal taxes on drugs are designed to keep people from buying or selling them. In 1950, the Court upheld a tax on marijuana, explaining that "a tax does not cease to be valid merely because it regulates, discourages, or even definitely deters the activities taxed. The principle applies even though the revenue obtained is obviously negligible . . . or the revenue purpose of the tax may be secondary." "Nor does a tax statute necessarily fall," the Court added, "because it touches on activities which Congress might not otherwise regulate" under its other enumerated powers. So even if the mandate is beyond the commerce power, it can still be a constitutional exercise of the power to tax and spend for the general welfare.

The 1950 case Balkin is referring to is U.S. v. Sanchez:

A twofer for regular TL readers - some foreclosure and marijuana news all in one - NYTimes:

Organized marijuana growers are shifting to the suburbs from rural and commercial areas, helped by a housing crisis that created a glut of affordable, spacious houses and a stream of new residents to previously more stable communities. Houses that sold for $1 million before the crisis have been turned into grow houses, equipped with the high-intensity lights, water and air-filtering systems necessary to produce potent, high-quality marijuana.

The law of unintended consequences.

At the end of court Friday, the Government said it expected to wrap its case up by next Thursday. It provided the names of the next six witnesses it would call, and Rielle Hunter wasn't one of them.

Alexander Forger, Bunny Mellon's lawyer, will be back on the stand Monday morning, to face cross-examination by Team Edwards.

Why would the Government not call Rielle Hunter? First, even though she has immunity from prosecution, she seems to be helping Edwards. Two of Edwards lawyers at trial represented her in the civil suit against Andrew Young. She filed a waiver of conflict of interest, saying she had no objection to them representing Edwards. The Government may think it has a better shot with her if they can cross-examine her as a witness when John Edwards puts her on. I'm not convinced John Edwards will call her either. Would you want her affecting the jury that decided your case? [More...}

After Alex Forger, Bunny Mellon's lawyer finishes ross-examination, the next witness may be Nick Baldick. He was a grand jury witness who was told he was not a target.

Baldick,put Andrew Young on the payroll of private companies under his control after Edwards directed Andrew Young be removed from working on the campaign. It was at this time Andrew's duties changed to babysitting Hunter while they tried to hide out from the media. [More...]

New York changes focus in tackling the sex trade -- pimps and johns get arrested, hookers get a pass. Oh yeah, it's hard out here for a pimp (winner best original song, 2006 Academy Awards, Hustle and Flow.)

France elects a Socialist President, Francois Hollande. Conservative Nicolas Sarkozy is out.

Connecticut legalizes medical marijuana. The Senate passed the bill, the Governor says he'll sign it and it goes into effect Oct. 1. CT is now the 17th State to allow medical marijuana.

The transcripts from yesterday's hearing at Guantanamo for the 9/11 Defendants are up on the Military Commission's website. There are no individual urls to link to, but you can access and download each one. Go here, click on KSM et al (2) (active), then click on transcripts.

This is an open thread, all topics welcome.

Here is the New York Times account of today's proceedings at Guantanamo (mobile version with some more details here.) Carol Rosenberg via Twitter has the play by play and an article at the Miami Herald with a full recap.

The Judge did offer to let the defendants plead not guilty, but they deferred. Ramzi Binalshibh wanted to talk about the conditions of confinement at Gitmo, the judge said it wasn't the proper time. Binlashibh yelled out:

“Maybe you are not going to see me again. Maybe they are going to kill us and say that we have committed suicide...The right time is now, not tomorrow." [More...]

Your turn. President Obama officially launched his bid for reelection today.

I haven't read any George Zimmerman news today, but feel free to discuss the case here.

It doesn't look like the Government is going to call Rielle Hunter in the John Edwards trial. Hampton Dellinger says the Government told the court yesterday afternoon it anticipated concluding its case by next Thursday. It provided its next six witnesses and Rielle wasn't one of them. While that's no guarantee, I don't see any benefit to the Government from calling her. All the money she got went though Andrew Young. And since two of the lawyers who represented her in the state civil case against Andrew Young are now representing Edwards at trial, with her approval, I think she'd try to help Edwards, even though the Government gave her immunity from prosecution in exchange for her telling its the truth.[More...]

Today, the 5 detainees at Guantanamo charged with the September 11, 2001 attacks were brought to a courtroom at the Expeditionary Legal Complex (ELC),

They are Khalid Shaikh Mohammad, Walid Muhammad Salih Mubarak Bin 'Attash, Ramzi Binalshibh, Ali Abdul Aziz Ali, and Mustafa Ahmed Adam al Hawsawi.”

They are all in court now. So far, none have uttered a word. While the proceeding is called an arraignment, the defendants are not called upon to enter a plea. The judge reads them their rights, an interpreter who is not physically present interprets one line at a time, and the Court asks if they understand their rights. (The interpreter is in a different building.) So far, none of the defendants have replied to the judge's questoins, which goes on the record as "refused to answer." [More...]

Tin soldiers and Nixon coming
We're finally on our own.
This summer I hear the drumming,
Four dead in Ohio.

Today is the 42nd anniversary of the shootings at Kent State University. The National Guard opened fired on students protesting the Vietnam War. Survivors of the shootings are again asking the Department of Justice to reopen the investigation into whether an order to shoot was given, based on a 2010 enhanced audiotape analysis in which experts concluded an order to shoot was given. [More...]

The allegations against Dominique Strauss-Kahn keep coming, here's the latest from France.

Bunny Mellon's lawyer, Alexander Forger, will testify this afternoon in the John Edwards trial.

The ACLU files suit over 9/11 defendants' arraignments set for tomorrow. The Government plans to censor any statements regarding torture while in U.S. custody.

What's on your mind today? Here's an open thread to discuss it, all topics welcome.

In the continuing saga of NBC's prejudicial editing of George Zimmerman's call to police to report a suspicious person, Trayon Martin, TV Newser reports NBC reporter Lilia Luciano has been fired. But keep reading, I have additional information and transcripts with sourcing to NBC shows.

First, backing up to April 9, I reported that the mangled edit used in a Today Show segment on March 27 was also used in a March 22 Today Show segment during a report with Lilia Luciano, who was reporting live from Sanford. Here's the March 22 transcript.

According to TV Newser, a different version of the mangled edit appeared in a Luciano segment on the Today Show on March 20. So we're up to three airings of clips with Zimmerman comments taken out of sequence on the Today Show. [More...]

The Government continues to put on witnesses describing the tawdry affair of John Edwards and Rielle Hunter. Yesterday witnesses focused on the effect of the affair on Elizabeth Edwards. While an aide also testified to Edwards' first meeting with Bunny Mellon in 2005, Edwards isn't charged with receiving illegal contributions until 2007.

What was the purpose of detailing Elizabeth Edwards' humiliating moments in a parking lot, at an airport, and in a car en route to the airport? Is the Government accomplishing anything by this intense focus on the affair and strife in the Edwards' marriage other than decimating the character of John Edwards? If so, what? [More...]

Bump and Update: Mr. Chong has filed a a notice of his intent to sue and claim with the DEA (a prerequisite to filing a lawsuit under The Federal Tort Claims Act) seeking up to $20 million in damages. You can read it here. The DEA has issued an apology, and promised a thorough review.

In addition to traditional tort claims, his notice alleges torture in violation of the Detainee Treatment Act of 2005 and the Military Commissions Act of 2006 and Convention Against Torture. The FTCA (28 USC 2675) allows recovery for pain and suffering, psychiatric and medical expenses, etc.

The actions of the officers give rise to the following causes of actions among others: intentional infliction of emotional distress, negligence, negligent infliction of emotional distress, and a Bivens cause of action for violation of Daniel Chong's rights under the Fourth and the Fifth Amendments for excessive force, unreasonable detention and unlawful seizure of his person.

The 9th Circuit Court of Appeals has reversed a district court ruling that the lawsuit filed by former detainee Jose Padilla can proceed against Bush Administration official John Yoo, who authored the infamous torture memos.

The memos authorized CIA interrogators to use waterboarding, keep detainees naked, hold them in painful standing positions and keep them in the cold for long periods of time. Other techniques included depriving them of solid food and slapping them. Sleep deprivation, prolonged shackling and threats to a detainee’s family were also used.

[More...]

On March 31, the Miami Herald touted its own reporting in the Trayvon Martin case as an example of fact-based and neutral journalism, highlighting the work of reporter Frances Robles as an example.

As new details emerge, we work hard not only to get the information right but to put it in the proper context of our overall coverage.

I think it failed today. First, Frances Robles published an article about a "crude" 2005 My Space page belonging to George Zimmerman which included unflattering comments about "Mexicans." Then she followed up with a second article that includes a response to her first article by Martin family lawyer Benjamin Crump. Crump is quoted as saying Zimmerman's My Space page is further evidence of Zimmerman's racism, his pattern of profiling, and even of his ill will and malice (which not so coincidentally is the necessary mental state for second degree murder.) [More...]