June 28, 2012

Regarding the Supreme Court decision...

It's so frustrating to me, because, at least in one aspect, I think I see this issue of the "Affordable Care Act" more clearly than anybody else is doing. But I've never managed to arouse the least interest in this.

And that is, that the ACA is an Industrial Age solution to our health care problems. That's how things worked in the late Industrial Age—think 1940's. Big slow-changing organizations were organized into interlocking convoys by government. A great achievement of the Roosevelt/Truman years was making the unions into peaceful members of the convoys.

And it worked fairly well. But that stuff doesn't work in the Information Age. Nothing is stable anymore. Government as ring master assembling a parade of docile slow-moving elephants has turned into government organizing a parade of thousands of monkeys. It doesn't matter how many bureaucrats are cracking whips. It doesn't matter how many rules and taxes are promulgated. Making an orderly parade out of thousands of scampering mischievous monkeys is an insane idea.

It is literally insane. It will fail even if both parties try to make it work.

And I'm like Cassandra, with the gift to see into the future, and the curse of never being listened to.

UPDATE; This picture is too perfect! Found here.

Circus elephants parade capitol hill


UPDATE: Best comment I've seen, from InstaPundit: Reader Barry Johnson emails, cruelly: “Second look at Harriet Miers?” Yeah, baby. I want to spit now thinking about all those pomposos who said we can't possibly have a Supreme Courtt justice who is not a high-powered scholard type.

Posted by John Weidner at June 28, 2012 8:35 AM
Comments

I agree with you, it is an industrial-age solution to a major problem, but that's not the issue. The issue is that the Supreme Court just upheld slavery.

Posted by: Michael Kent at June 28, 2012 9:51 AM

True, but they've been doing that since Wickard v. Fillmore

Posted by: John Weidner at June 28, 2012 10:30 AM

Wickard v. Filmore basically stated that if you do something, the federal government could regulate it (but you had to actually do something).

That was bad, but this is a whole different ballgame. Now the government can regulate doing nothing. They can force you under the threat of fines and imprisonment to take any action they choose.

That's pretty much the definition of the word "slave."

Posted by: Michael Kent at June 28, 2012 10:50 AM

Mr. Kent;

Read the decision more closely. SCOTUS held, 9-0, that the Commerce Clause argument is bogus. As many as argued, and I must concede, if the federal government wants to levy a tax, then it can do that and provide exemptions based on behavior. That sort of thing is 99% of our current tax code.

I am not pleased by the decision but I don't think its completely bad.

Posted by: Annoying Old Guy at June 28, 2012 11:55 AM

Blame the progressives. Here is the text of the 16th amendment:

The Congress shall have power to lay and collect taxes on incomes, from whatever source derived, without apportionment among the several States, and without regard to any census or enumeration.

What limit on congresses' taxing power do you find in it?

Posted by: Terry at June 28, 2012 2:46 PM

I think the Court "split the baby"-- by upholding ObamaCare as a tax, and removing the worst of the penalties for non-compliance, they've largely defanged it. As a tax, it's easier to get a move to repeal it through the Senate, AND it forces The Won to defend it on the hustings as tax, which he said it wasn't. The Republicans' campaign ads just wrote themselves.

As the online punditry says, "Pass the popcorn!"

And Chief Justice Roberts probably did us all a favor by forcing us, "the People" of the Constitution, to stand up for ourselves. He has, in effect, told us to get busy and tell the President and the Congress what we truly want at the ballot box, instead of tugging our forelocks at them (and the Supreme Court, too) when they decree something as law.

Five Possible Silver Linings in the Obamacare Decision

My two cents' worth, as usual. (Heck, you're not paying even that much.)

Posted by: Hale Adams at June 29, 2012 1:18 AM

"He has, in effect, told us to get busy and tell the President and the Congress what we truly want at the ballot box"

Sounds right to me. I go back and forth, but this thing just does not fit the storyline of Roberts giving in to liberal pressure. The last thing the Left wants is to reduce the use of the Commerce Clause.

I'm leaning more to Sean Trende's view, The Chief Justice's Gambit

Posted by: John Weidner at June 29, 2012 9:00 AM

The big thing that everyone has overlooked, in my view, is that this has validated the political assassination of Senator Stevens, without which this "law" could not have been passed.

Posted by: Robert Mitchell Jr. at June 29, 2012 10:03 AM

I never really got a handle on that affair. I recall Stevens was convicted, and then once he'd lost the election, it was, 'Oh, never mind."?

Posted by: John Weidner at June 29, 2012 3:03 PM

Oh, levels of corruption. The main (really only) witness was a corrupt, bribe paying pedophile perjurer who seems to have skipped out on the pedophile thing as a justice department payoff for getting Stevens. And the evidence that would have show Stevens to be innocent wasn't given to the Defense, and the Justice Department got caught coaching witnesses, and removing problematic ones.... But it got us Obamacare, so it's all good!

Posted by: Robert Mitchell Jr. at June 29, 2012 4:07 PM

Read the decision more closely. SCOTUS held, 9-0, that the Commerce Clause argument is bogus.

It doesn't appear so.

http://www.nationalreview.com/corner/304459/mark-levin-not-so-fast-commerce-clause-kathryn-jean-lopez

Regardless, any possible Commerce Clause limitation found in Robert's ruling would have been there had he stuck with the Scalia dissent (then a majority) instead of heading off on his own. We gained nothing by his doing so but lost our liberty.

What limit on congresses' taxing power do you find in it?

The limits are not in the 16th amendment, they were in the Constitution from day one. The 16th amendment merely removed one of those limits -- the authority to tax income. The other limits still apply (err, applied, until Thursday). It did not grant the authority to compel generic behavior or to apply a penalty to inaction.

I am not pleased by the decision but I don't think its completely bad.

It is completely bad. The federal government now has the power to tax the failure to perform any lawful activity. Didn't buy health insurance? Tax. Didn't buy a Smart Car? Tax. Didn't volunteer ten hours a week to ACORN? Tax. Didn't abort your second baby? Tax.

Some of these examples may be unlikely right now, but there is no logical difference between them and the ObamaCare mandate.

We've all been made slaves. Some people just don't notice it yet because the chains remain light. It won't always be so.

Posted by: Michael Kent at June 30, 2012 12:56 PM

My guess is that it won't work out that way. It is and will be much harder to pass taxes than it is to pass regulations.

And I think this is going to be the high-water mark of this sort of massive government regulatory program. ObamaTax is a sort of "last hurrah" for the New Deal/Great Society stuff. It's dawning on people that they just don't work in the new world we are in. (The ClueTrain is moving with agonizing slowness, because people don't read Random Jottings. But it IS moving.)

Posted by: John Weidner at June 30, 2012 8:03 PM
The federal government now has the power to tax the failure to perform any lawful activity.

The federal government has had that power for decades, if not centuries. Every single tax credit / tax deduction is an example. There is no functional difference between getting a tax credit for doing A and getting a tax penalty for not doing A. In either case, people who do not do A pay more tax. E.g., people who don't have children pay more tax. People who don't install solar panels on their house pay more tax. Even some of your examples are already law

Didn't buy a Smart Car? Pay more tax, because you don't get a deduction. Abort your second baby, pay more tax. None of those are unlikely because they're already true.

Posted by: Annoying Old Guy at July 1, 2012 1:07 PM

Actually, I thought Alito was the second choice after the Miers debacle. Roberts simply moved into the Chief Justice spot at the same time. I agree you don't have to be a legal scholar, but the Miers nomination was tone-deafness on Bush's part.

Posted by: David at July 2, 2012 3:18 PM
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