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The SCOTUS' strike zone
has widened extremely to the right

One of the more remarkable aspects of today's opinions on the Affordable Care Act is the decisions (remarkably joined by Justices Breyer and Kagan) that states qua states are constitutionally entitled to federal funding for providing health care for their residents without condition. In their dissent (PDF), Justices Scalia, Thomas, Kennedy and Alito wrote that:

The ACA does not legally compel the States to participate in the expanded Medicaid program, but the Act authorizes a severe sanction for any State that refuses to go along: termination of all the State’s Medicaid funding. For the average State, the annual federal Medicaid subsidy is equal to more than one-fifth of the State’s expenditures.7 A State forced out of the program would not only lose this huge sum but would almost certainly find it necessary to increase its own health-care expenditures substantially, requiring either a drastic reduction in funding for other programs or a large increase in state taxes. And these new taxes would come on top of the federal taxes already paid by the State’s citizens to fund the Medicaid program in other States. [Emphasis supplied.]
Wait, what? States might have to spend THEIR money to take care of THEIR residents? Isn't that what these justices have been clamoring for forever? Isn't that why they object to a strong federal government? If states do not want to take federal money for Medicaid, on the terms the federal government requires, why should they not suffer the consequences of that decision? The right-wing theory of states' rights would seem to demand that.

In an astounding bit of illogic, they instead argue that federal conditions on grants to states threatens our federalism:

This formidable power, if not checked in any way, would present a grave threat to the system of federalism created by our Constitution. If Congress’ “Spending Clause power to pursue objectives outside of Article I’s enumerated legislative fields,”  is “limited only by Congress’ notion of the general welfare, the reality, given the vast financial resources of the Federal Government, is that the Spending Clause gives ‘power to the Congress to tear down the barriers, to invade the states’ jurisdiction, and to become a parliament of the whole people, subject to no restrictions save such as are self-imposed,’” Dole, supra, at 217 [...] "[T]he Spending Clause power, if wielded without concern for the federal balance, has the potential to obliterate distinctions between national and local spheres of interest and power by permitting the Federal Government to set policy in the most sensitive areas of traditional state concern, areas which otherwise would lie outside its reach.” Davis, supra, at 654–655 (KENNEDY, J., dissenting).
Here's a thought—if states do not want to be dictated to by the federal government, then they can turn down the money. Isn't that how our federalism is supposed to work? Apparently not to the Roberts 5—who now create a constitutional STATE right to federal funds. The illogic boggles the mind.

But it is of a piece from a Court more concerned with the rights or corporations and states than of the well being of people. In the opinion of the Court, Justice Roberts held that "the federal conditions"—take all the money we are offering or none of it—was coercive and threatened "Our Federalism."

Understand the argument, once the federal government creates a program that gives states money, the states now have a constitutional right to that money in perpetuity.

States' rights on steroids. It is a remarkable decision. And not in a good way.

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Comment Preferences

  •  Don't expect logical consistency from this court (13+ / 0-)

    In no way do they intend to establish perpetual entitlements. This argument is political hogwash to spite Democrats.

    look for my eSci diary series Thursday evening.

    by FishOutofWater on Thu Jun 28, 2012 at 03:49:50 PM PDT

  •  I'm a bit curious about that, too. (1+ / 0-)
    Recommended by:
    Mistral Wind

    If states that don't agree to expand Medicaid still receive federal Medicaid dollars, are they not still required to spend those dollars on Medicaid?

    I'm informed on the matter, except that usually federal dollars have to be spent by states for their intended purposes. You can't just take highway funds and spend them on closing a budget shortfall.

    So what happens? Will states take federal Medicaid funds and then leave them unspent?

    •  In Wi walker took chunk of fed funds meant for (1+ / 0-)
      Recommended by:

      mortgage assistance and put it towards the deficit he created.

      I fear his DHS 'appointee' dennis smith (heritage foundation puke) was put in place to "dismantle Medicaid/Medicare not implement it" will give him 'advice' on this.

      These toadying arrogant greedy scumbags assholes are chomping at the bit for the first opportunity to do just that.

    •  Essentially (0+ / 0-)

      The Federal Government lost a lot of teeth in enforcing a Medicare expansion.

      Republicans are far more socialist than Democrats. Just because they want to redistribute the wealth upwards does not make it any better.

      by MrAnon on Thu Jun 28, 2012 at 04:45:34 PM PDT

      [ Parent ]

  •  One does begin to wonder about the reasoning (3+ / 0-)
    Recommended by:
    apimomfan2, ferg, sawgrass727

    abilities of some of these justices.  

    •  Maybe they they're more partisan than we think? (3+ / 0-)
      Recommended by:
      pelagicray, sawgrass727, Just Bob
      Here's a thought—if states do not want to be dictated to by the federal government, then they can turn down the money. Isn't that how our federalism is supposed to work? Apparently not to the Roberts 5—who now create a constitutional STATE right to federal funds. The illogic boggles the mind.
      This starts to make a bit more sense once you remember that all rural states are federal budget "moocher" states, and almost all rural states are traditionally red states.

      Now they can break the rules and still mooch off of everyone else.

      Sounds like something Republicans would be in favor of afterall, doesn't it?

      "We see things not as they are, but as we are." - John Milton

      by Jasonhouse on Thu Jun 28, 2012 at 04:24:30 PM PDT

      [ Parent ]

  •  The way the feds pressured states to do things (1+ / 0-)
    Recommended by:
    Wednesday Bizzare

    like raise the drinking age by threatening to deny federal funds does strike me as being not much different from the feds just giving orders to the states.

    If something can be done to limit the power of the federal government to do that sort of thing to the states, that strikes me as a good thing.

    The influence of the [executive] has increased, is increasing, and ought to be diminished.

    by lysias on Thu Jun 28, 2012 at 03:52:39 PM PDT

  •  It all makes perfect sense (6+ / 0-)

    if "State's Rights" are applied ideologically rather than Constitutionally.

    We need Antonin Scalia ... without him we might pay attention to what the Constitution says, rather than what he thinks it should say :)

    That last bit was snark, btw :)

    I hope that the quality of debate will improve,
    but I fear we will remain Democrats.

    by twigg on Thu Jun 28, 2012 at 03:53:38 PM PDT

  •  I am not a constitutional scholar...but... (1+ / 0-)
    Recommended by:

    I read the ruling to mean that if a state can't make it's share of the contribution, the Federal Government has to make up the difference.  It's not a question of taking money and using it for another purpose.  It has to be for the purpose of health care.

    But the AHA attempted to enforce some sort of minimum state contribution.

    If you can't do that with Health care, what is to become of the minimum contribution the Federal government puts on matching grants, etc...?

    •  Correction, if the state can't afford to extend (5+ / 0-)

      Medicare, the State doesn't lose any existing money. If the Federal Government chooses to up the difference, we now have the "free rider" issue on a totally different scale.

      Frankly, if it comes to multiple states refusing to extend Medicare, at that point, it makes more sense to have a complete Federal takeover of the entire system.

      •  We all know the point of the ACA is to force... (0+ / 0-)

        ... single payer anyways. (or at least a robust public option available to anyone who prefers it over for-profit insurers and their prices)

        I'm relieved and re-energized by the reality that we just took a HUGE stride forward towards that desperately needed goal.

        Imagine the economic boom that would occur if millions of educated professionals were free to run their own business or work as a consultant actually paid fairly for their work, since they would no longer be tethered to an employer to gain access to affordable coverages. I know numerous people both at work and in my personal life who would love to explore life's economic possibilities, but they can't because they could never afford to provide adequate care for their families getting coverage on their own.

        "We see things not as they are, but as we are." - John Milton

        by Jasonhouse on Thu Jun 28, 2012 at 04:35:30 PM PDT

        [ Parent ]

  •  You forgot Kansas. (2+ / 0-)
    Recommended by:
    twigg, yawnimawke

    Notice: This Comment © 2012 ROGNM

    by ROGNM on Thu Jun 28, 2012 at 03:56:29 PM PDT

  •  So they cannot stop all Medicaid subsidies (1+ / 0-)
    Recommended by:

    if a state does not comply, could they reduce the existing? "Participate and get more $$ or else you get half of what you currently get." Would that be legal?

    •  So do I have it right that a state (0+ / 0-)

      That  conscientiously objects to receiving funding related to part of the new law its elected reps think is funky can just say no 'cause?

      All rightie then, though that makes for some fine posturing in a presidential election year, doesn't it Also make for some fine fodder for reasonable opposition to knuckle-headed goobs and their intellectually challenged state legislatures the next time their tenure comes up for review?

      This could be a gift that keeps on giving for progressives.

      "I'll press your flesh, you dimwitted sumbitch! " -Pappy O'Daniel

      by jakewaters on Thu Jun 28, 2012 at 04:08:16 PM PDT

      [ Parent ]

  •  All funding? (4+ / 0-)
    Recommended by:
    yawnimawke, madgranny, susanala, wsexson

    Does this newly-imagined right now entitle all states to Pentagon funding? Is the federal government now not allowed to close military bases because it is unreasonable to expect the state to maintain the economies in the surrounding areas?

    Don't forget that most men with nothing would rather protect the possibility of becoming rich than face the reality of being poor. - John Dickinson ("1776")

    by banjolele on Thu Jun 28, 2012 at 03:56:48 PM PDT

  •  I hope you will write (1+ / 0-)
    Recommended by:

    a post comparing the majority decision in Citizens United and the minority decision on The Stolen Valor Act.

    Most of the people taking a hard line against us are firmly convinced that they are the last defenders of civilization... The last stronghold of mother, God, home and apple pie and they're full of shit! David Crosby, Journey Thru the Past.

    by Mike S on Thu Jun 28, 2012 at 03:57:03 PM PDT

  •  The Dissent You Quote is Meaningless (0+ / 0-)

    What the dissenting justices wrote is NEVER the law.  So don't quote it.

  •  that other shoe has been dropping all damn day. (2+ / 0-)
    Recommended by:
    apimomfan2, madgranny

    i swear by the time we get to lawrence tonight, we won't have social security or medicare anymore.

    Earth: Mostly harmless ~ The Hitchhiker's Guide to the Galaxy (revised entry)

    by yawnimawke on Thu Jun 28, 2012 at 03:59:39 PM PDT

  •  Can you blockgrant Medicaid? (0+ / 0-)

    I guess you can issue blockgrants without conditions, but a
    conditional grant would violate federalism now, since no state could refuse it.   An unconditional grant would be politically impossible.   I wonder if the replace part of repeal and replace might have had a worse day at the court.

  •  HAHA - love the "Boggles the mind" riff! (2+ / 0-)
    Recommended by:
    apimomfan2, madgranny

    Awesome diary. Spot on in calling out their hypocrisy once AGAIN!

    Stop the party of Gut & Spend policies that gut our Earned Benefits programs like Social Security and Medicare and spends on tax breaks for the wealthy elite.

    by jillwklausen on Thu Jun 28, 2012 at 04:01:24 PM PDT

  •  on another subject - I told you so! (1+ / 0-)
    Recommended by:

    the mandate was not and is not constitutional under the Commerce Clause!

    "I'm sculpting now. Landscapes mostly." ~ Yogi Bear

    by eXtina on Thu Jun 28, 2012 at 04:05:11 PM PDT

    •  "We can regulate commerce, not compel it" nt (0+ / 0-)

      "I'm sculpting now. Landscapes mostly." ~ Yogi Bear

      by eXtina on Thu Jun 28, 2012 at 04:06:28 PM PDT

      [ Parent ]

      •  It's not objective, it's subjective (2+ / 0-)
        Recommended by:
        FishOutofWater, IM

        What is and isn't constitutional is decided by 5 people with lifetime appointments.

        Give it 30 years forward or backward and an entirely different decision could have been reached.

        "The disturbing footage depicts piglets being drop kicked and swung by their hind legs. Sows are seen being kicked and shoved as they resist leaving their piglets."

        by Bush Bites on Thu Jun 28, 2012 at 04:12:29 PM PDT

        [ Parent ]

        •  this comment directed specifically at Armando (0+ / 0-)

          completes a long-running arguments we have had over the constitutionality of the mandate based on the commerce clause

          "I'm sculpting now. Landscapes mostly." ~ Yogi Bear

          by eXtina on Thu Jun 28, 2012 at 04:34:38 PM PDT

          [ Parent ]

    •  Correct. Only the penalty tax is ... (1+ / 0-)
      Recommended by:

      constitutional because Congress can levy taxes any which way. All sorts of loopholes in the tax code, rewarding or punishing.

      So basically SCOTUS has said that you don't have to buy run-down Buicks from shady characters. But Congress has the right to tax you if you can't prove that you have a car on blocks in your front yard.

      I expect that a market will emerge for cardboard Buicks that look and feel like junkers, but are instead cardboard. Teh taxman rolls on by. Every once in a while you have to get a new facade after the rain.

  •  I'm Curious.... (7+ / 0-)

    Armando what do you think about the suspicion by some on different blogs that Chief Justice Roberts may have switched his vote at some point?

    One thing that sorta strikes me funny about the discussion of the commerce clause and "necessary & proper" in the majority opinion is that if he believed from the get go that this was a tax & covered by Congress' taxing powers, there's no need to get into those discussions.

    And the dissent has an entire section on severability that doesn't really makes sense for the time & effort put into it, except on the assumption that the mandate had been struck down.

    Now one view sees those aspects of the majority opinion as being Roberts limiting the scope of this opinion from the get go, but some others are wondering whether the dissent was originally the majority opinion, and at some point Roberts agreed to switch if the four liberal members signed on to his language about Medicaid and he was allowed to insert the limitations on the Commerce Clause.

  •  Eh. (0+ / 0-)

    It DOES go in the direction of health care being a right, so I'll take it.

    "The disturbing footage depicts piglets being drop kicked and swung by their hind legs. Sows are seen being kicked and shoved as they resist leaving their piglets."

    by Bush Bites on Thu Jun 28, 2012 at 04:08:12 PM PDT

  •  OK, I've had a re-think.... (0+ / 0-)

    A given state could be unable to extend Medicare because the free market has failed to provide enough affordable insurance to average people and they can't make up the difference.

    A given state could change their tax laws to decrease their revenues and become unable to support Medicare as fully as they were in the past (or make up for the difference should their be a market failure.)

    States might be unable to maintain their Medicare burden due to some sort of economic crisis, disaster, or health care emergency (wide spread epidemic...)

    So the Federal Government has to make up the difference, per the Roberts ruling.

    1. This strikes me as being activist; the justices added something into the law that wasn't their before.  Better to just strike down the clause, explain why and let this get relegislated.  They didn't do that.  Instead they instructed the Federal Government not to pull any funding.  There's a difference. This is not a move any conservative court would take.

    2. If the private market were to fail in a widespread manner, this almost guarantees that the only Supreme Court approved remedy is to extend Medicare for all.  Could Roberts have crafted a single-payer system in his ruling?  

    Again, I'm just guessing.  Perhaps I'm wrong.

  •  I have an issue with this, we have a large (3+ / 0-)
    Recommended by:
    Wednesday Bizzare, suzq, apimomfan2

    Number of Red States that free load on my(blue state) tax dollar.  

      •  Get over what, paying top dollar so stupid morons (1+ / 0-)
        Recommended by:

        Can run my country and drive it into the ground, is that what I should get over?

        •  Get over the whining (0+ / 0-)

          about red states and blue states. There are many reasons each states gets the amount of money it does from the federal government. You're oversimplifying it.

          •  They get so much money because they are right (2+ / 0-)
            Recommended by:
            apimomfan2, flight2q

            To work states who keep their citizens in poverty.  They get so much money because they allow businesses to operate there and pay very low taxes, thereby starving their most basic services.  They let the plutocrats live there for free.  They are modern day slave states and there is nothing simple about it, it is shameful and we are enablers.

            •  Enabling huh? And your solution (0+ / 0-)

              is to just defund them and just say screw you to the parts of the population many who didn't vote for/have no control over policies. How very progressive of you.

              •  I am extremely progressive but there are no (0+ / 0-)

                Free rides, we need these people to show up to vote for their own interests or you are dam right I would defund them.  I am tired of fighting the battles and then paying for the privilege of losing(or having the election stolen).  I have needs in the state I live in, better roads, schools and healthcare which we cannot fund because a portion of my tax dollar( over what we get back) goes to a red state and they go to a red state that votes to hold my basic rights hostage.  What sense does that make?

                •  think it through again (1+ / 0-)
                  Recommended by:

                  What if the majority of the recipients of federal funds in red states are veterans getting the VA benefits and more poor people kept poor because they live in anti-union states? Because they had past leaders who bungled the economy? What about the fact that some red states have disproportionately large numbers of on average poorer populations, including African Americans and Native Americans? Or that some red states have lots and lots of federal lands and parks and forests that are managed using federal funds.

                  Consider, further, that state populations, unlike their electoral college votes and party performance, are invariably rather diverse politically and in every other way, far more so than seen in their elected reps. There are very few states with less than 35% reliable Dem voters in statewide races. Eligible recipients of federal support, moreover, vote for both and no parties.

                  So what you have in any given state, say Alabama, are some powerful old white boys backed by a majority of conservative whites, disproportionately religious, screwing over others in their state and trying to do that to everyone. From what I can see you want to help them. What I do not understand is why that is a progressive point of view.

                  The best argument for your point of view is federal support by way of mining, ranching, grazing, etc. across the rural red states. That is for the most part throwing money at rich conservative a-holes.

                  Liberals and progressives care about the 'little person over there'. We do so even if we don't like their politics and or the politics of their elected representatives.

                  •  You think it through, we give them our money so (0+ / 0-)

                    They can use it against us.  If a state refuses to tax their wealthy and their businesses and to pay their workers a living wage, why should we fund these policies, we GUARANTEE that it will continue because we pay them to do it.

                    •  thanks for your answer (1+ / 0-)
                      Recommended by:

                      I've given your argument some reflection (now, when you made, and earlier in my life) and what I see, still, is that you are willing to GUARANTEE a worse quality of life for veterans, the poor, seniors, the environment, and workers in currently red states, many of whom are loyal Democratic voters, because you don't like decisions their leaders make.

                      To the 35% (or whatever) who do not vote for those leaders, many of whom are among the recipients of federal spending, your move is to vote them off the island, along with everyone else.

                      I still do not see how that is a progressive or even a liberal point of view. It is a view that says victims should pay more to punish their victimizers.

                      So my answer to "why should we fund these policies" is really pretty simple: Because those people are important, primarily, and because they are US citizens, secondarily. They do not deserve to be sacrificed by more comfortable people in blue states (at least those that are net federal revenue exporters) who are angry at leaders elected in red states.

                      We are getting pretty far afield because you probable really just want to focus on the expansion of Medicaid under ACA. There my focus would be on finding ways to get those states to take the money so their people have a better life instead of taking that money from their needy.

    •  Why do those Red States have to ask for money? (2+ / 0-)
      Recommended by:
      Americantrueandblue, peptabysmal

      Could it be that they're not as wealthy as some of the other states are, so shouldn't we help each other out and forget about all this useless division?

  •  This is all so crazy (0+ / 0-)

    The court has made a good decision imo but it has also confused just so many people.  We here think we know what all this means, but we don't, really.  I doubt there's anyone that knows how things will progress in this going forward because it's all new ground.  Each "thing" will be tested and decided on.  Each question will need to be answered.  There will be lawsuits and there will be mistakes along the way in implementing this, we gotta know that.

    It's a can of worms now...and SCOTUS has opened it up big time.

    From our perspective here, it's gonna be fun to discuss (agree and disagree on etc.) and it's going to give some folks ulcers and some a smiley face.  

    Ain't politics and legislative maneuvers and party politics just the gas here in America?

    And, in the mean time, look at all the people that will be hurt in the process.  We've become one very screwed up country.

    I love it.

    The truth is sometimes very inconvenient.

    by commonsensically on Thu Jun 28, 2012 at 04:20:40 PM PDT

  •  I agree with the court here based on .. (4+ / 0-)

    the reasoning presented.  Residents of the states pay a line item tax for medicaid, denying the residents of those states something that they have paid for in retaliation for the intransigence of governors and legislatures would be a violation of equal protection.

    Of course, there are some large conflicts here..  Are the states that refuse the added requirements of ACA required to continue under the status quo?  Would giving the residents of states declining the program an exemption from paying into medicaid serve as a remedy the problem?  If so, does this create a different equal protection conflict?

    This is not analogous to Federal highway funds or other such efforts because the taxpayers never paid into those by line item.  This reasoning actually bodes well for future Supreme Court fights if someone like Cantor is able to gut Social Security; it provides a protection for funds that were drawn on line item.  It ought to serve as a shot across the bow (intentional or not) that Republicans are not going to get away with raiding the Social Security trust fund to enable tax breaks for the wealthy.

    •  expansion is not paid for out of existing taxes (0+ / 0-)

      since there is no change to Medicaid line item, this doesn't really apply.

      Expansion funding (90%) is provided by the Feds separate from existing taxes. Some of the revenue is expected to come from the Pharma market share tax and the Med Device excise tax that were part of the ACA.

      There probably an assumption that expanded Medicaid coverage will reduce SCHIP and PHS 340B expenditures as well which can then be applied to the expansion.

    •  ok (0+ / 0-)

      now that I re-read the post, I see we're on the same page here.

      It could be construed as getting back what they are paying for.

      If only that worked for the entire federal budget, maybe some of the red states would realize how dependent they are on fed funds.

    •  odd (0+ / 0-)

      You say you agree with their reasoning but equal protection doesnt appear in the decision at all. It was overturned on federalism grounds.

  •  If only Precedent mattered (1+ / 0-)
    Recommended by:

    Doesn't Roberts's reasoning imply that the Federal Government  can't repeal the Medicaid expansion ? Under current laws states will get a whole lot of money from the Federal Government.  If it can't take that money back, how could it be constitutional to repeal Obamacare ?

    •  And if the Government is paying more and more (1+ / 0-)
      Recommended by:

      why not at some point pay for the whole damn thing?

      I think it's a "camel nose under the tent" situation that Roberts has set up.  In for a dime today, in for a dollar tomorrow, next week, we're paying for the whole thing.

  •  I guess we're not as United as I thought we were. (2+ / 0-)
    Recommended by:
    Americantrueandblue, apimomfan2

    Gee, if we can help people around the world, why can't we help each other right here at home?  No human being living in these United States should ever be denied health care when they really need it.

    Also,  there's really nothing wrong with socialized medicine.   I guess doctors don't like it, but that's too bad because right now we want every single person in this country to have health care when they need it.  Isn't that what civilized people are supposed to do?

  •  Two rules (0+ / 0-)

    No D Senator ever again fails to vote against any justice nominated by an R president, or votes for cloture on such a nominee.

    The rationale:  the Rs have been revealed to be engaged in an effort to pack the court with Federsliat Society stooges, with justices who, against their oaths of office, and against testimony provided at their confirmaton hearings, have a political agenda.  The lack of a 2/3 majority in the Senate keeps us from the arguably better, more direct, course of impeachment, but having 40+ Senators does leave our party the power to block any enhancement of the R court packing.

    If the Ds get the trifecta, we do one of two things:
    a) every outrage, past and future, of the Fed Society Five is immediately addressed with removal of SCOTUS jurisdiction from that subject matter
    b) court membership is expanded to insure the Fed Five are outnumbered

    Same rationale as above.  

    We should have destroyed the presidency before Obama took office. Too late now.

    by gtomkins on Thu Jun 28, 2012 at 04:49:03 PM PDT

  •  But, No (0+ / 0-)
    Here's a thought—if states do not want to be dictated to by the federal government, then they can turn down the money.
    That would be true if their residents didn't pay any federal taxes. But since this money is taken by the federal government, not giving it back when DC does that for all the other states means there's a sizable penalty for not doing what Washington wants.

    If they didn't want to be dictated to by the federal government they'd have to prohibit their citizens from paying federal taxes. I just don't see that happening (again).

  •  I don't see it as such and this is why (0+ / 0-)

    Essentially the ruling today laid it down that while the government is allowed to mandate the spending of the dollars, if a state qualifies and chooses to participate in said program, then the state has a requirement to abide by the rules of that program.

    However, the federal government also has a forcible requirement to ensure the ability for the state to participate in said program.

    IMHO, I think it lays the grounds towards a medicaid/care for all. Because now that the 'mandate' is a tax it is pretty easy to bypass that federalism opinion opined by roberts. The roberts opinion sets up these ramparts of protection, but then later on lays out the ground work to bypass it.

    Allowing states to 'opt' out, only reinforces it.

    Time will tell obviously, but I think this ruling was pretty historical and Roberts did..finally mind you...exactly as he said he would do in his confirmation hearings.

    --Enlighten the people, generally, and tyranny and oppressions of body and mind will vanish like spirits at the dawn of day. - Thomas Jefferson--

    by idbecrazyif on Thu Jun 28, 2012 at 09:59:58 PM PDT

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