Patterico's Pontifications

12/1/2010

Boycotting Abortion: Has Obamacare Been Sunk by Citizens United and the NAACP v. Claiborne Hardware?

Filed under: General — Aaron Worthing @ 9:03 pm

[Guest post by Aaron Worthing; if you have tips, please send them here.]

Well, as I noted earlier today, Judge Moon upheld Obamacare in Liberty University v. Geitner and as promised I have analysis.

The mandate itself was upheld under the commerce clause using logic that explicitly mirrored the Michigan case a few months back.  That case rested on the bizarre notion that doing nothing was economic activity, because everyone would need health care eventually.  What this ignores is that we have a right to refuse treatment, meaning that it is not a given that we will need health care eventually.  Yes, most of us won’t, but the fact that you can refuse to take medical care means that you cannot say that a person will definitely use health care eventually and thus participate in this interstate commerce.

And they go on to assert various religion clause challenges.  I think they do raise troubling aspects of current Supreme Court jurisprudence, but that is the decisions the Supreme Court has made, and they are not likely to be fixed anytime soon.

But one argument stopped me.  They also challenged this on first amendment free speech grounds.  This was the first time I had seen someone raise this, so I was intrigued.  Let me take the arguments a little out of order. Here’s what the judge says about the “second” speech related argument:

Plaintiffs’ second argument for infringement is that the mandatory payment for health insurance, or any payment of “fines, fees and taxes” imposed by the Act, are being used to subsidize speech with which Plaintiffs disagree; specifically, the funds are being used to cover abortion services…  Free speech protection is implicated where the government requires an individual to subsidize a private message with which he disagrees…  Such forced subsidies of speech were held to be unconstitutional where nonunion public school teachers were required to pay a fee to unions that was used to fund political speech…, and where lawyers admitted to practice in California were forced to pay a state bar association which it used for political expression[.]  But free speech rights are not violated where the individual is required to subsidize a government message with which he disagrees.

Now I only know of the Plaintiffs’ argument by what the court says about it.  But if their argument is that abortion is speech, I think it’s a non-starter.  Abortion is conduct.  Good or bad, that is what it is.

But in making their argument, a different argument occurred to me.  You see, under Citizens United, corporations are now fully free to participate in the political process.  So guess what?  Forcing you to buy products from any corporation is equivalent to forcing you to subsidize that corporation’s political speech.  And, as the court noted, it is unconstitutional to force anyone to subsidize a private individual or organization’s speech.

But it gets worse.  The court also addressed two other free-speech related arguments.  First was the right to associate, stated and dismissed as follows:

Plaintiffs allege that they hold the religious belief that they should not associate with those who support or engage in abortion. In that case, the problem is the possibility of Defendants’ infringement on Plaintiffs’ free exercise of their religious belief not to “yoke” themselves with others. No impairment of their ability to associate with others to engage in activities protected by the First Amendment appears to be alleged. As Defendants correctly point out, the requirement to purchase health insurance does not prevent Plaintiffs from expressing their views about anything and does not require them to endorse a view with which they disagree.

Then on the more direct speech claim, the court writes “according to the Plaintiffs, decisions about paying for health care are a form of speech.”  And thus the argument goes, forced payment is forced speech.  Freedom of speech, after all, is the freedom to refuse to speak, right?  But the court waives off this concern by saying “[o]btaining a health care policy is a commercial transaction that reflects a personal choice about the best mix of coverage and price that serves one’s medical needs.”

But pause for a second.  Is it purely a commercial transaction?  Is there any expressive element to it?  Or more precisely, is there an expressive element to refusing to engage in a transaction, ever?

Of course there is, and it is one of the oldest forms of expression known: the boycott.

Liberty University and the scattered individuals who sued in this case have a constitutional right to refuse to associate with any entity that engages in abortion, to boycott it (and this is true of any issue, not just abortion).    Even if none of their money touches an abortion doctor’s hand, they are allowed to say, “as long as you allow this, I will not contribute my money to your company.  I will not associate with you.”

In NAACP v. Claiborne Hardware Co., the Supreme Court said that “[t]he right of the States to regulate economic activity could not justify a complete prohibition against a nonviolent, politically motivated boycott designed to force governmental and economic change and to effectuate rights guaranteed by the Constitution itself.”  The same would assuredly apply to the Federal Government.  And yet this decision has effectively said that where interstate commerce is involved (and according to the court it is always involved in everything, apparently), Congress can effectively outlaw the boycott.

I mean consider a simple example.  Rosa Parks one day decides she is not giving up her seat to a white man even though a law purports to require her to, and as a result, she is arrested.  In response Martin Luther King, Jr. and many others lead a boycott of the bus system.  But, according to the court in Liberty University, Congress could pass a law requiring every person to use a city bus for transportation where it is available, and thus outlaw the Montgomery Bus Boycott.

Now I don’t know what Liberty University said in its briefs or in oral argument.  But whether they knew it or not, they managed to highlight something everyone else had missed.  It is not merely a matter of Congress not having the power to enact the mandate (although it doesn’t).  It is not merely the fact that this conflicts significantly with the Supreme Court’s decisions on privacy.  It is that the first amendment grants an affirmative right to refuse to purchase a good or service, that this law treads upon.

And of course, you know what happens when you tread on people, right?

[Posted and authored by Aaron Worthing.]

(Stupid) Conspiracy Theory of the Day

Filed under: General — Aaron Worthing @ 6:46 pm

[Guest post by Aaron Worthing; if you have tips, please send themhere.]

You know that TSA scan or grope rule?  Well there is a secret agenda behind it.  Here, I will let Eugene Delgaudio “elected official on the Loudoun [Virginia] County Board of Supervisors” explain what it is all about:

Delgaudio writes for the Public Advocate, a conservative, non-profit organization.

A widely distributed e-mail written by Delgaudio for the Public Advocate about TSA, claims the pat downs are part of a “Homosexual Agenda.” And he criticizes TSA’s non-discrimination hiring policy.

“It’s the federal employee’s version of the Gay Bill of Special Rights… That means the next TSA official that gives you an ‘enhanced pat down’ could be a practicing homosexual secretly getting pleasure from your submission,” Delgaudio wrote.

Wow.  Just wow.  I had no idea…  that anyone could be so stupid and paranoid, outside of the Democratic Underground.  Yes, that’s it, genius, this is all a plot to help a few gay dudes get their jollies.  Did you figure that one out all by yourself?  Were crayons involved?

And bonus points if anyone noticed this moron was writing from something called The Public Advocate.  Boy, ain’t that a Freudian detail?

Now on the other hand, I can fully believe that this whole TSA thing is actually a conspiracy to cause this to happen.

That would be the rapper and all around hottie Fergie getting scanned.  And in showing that picture, I think I just made about half the population not only support such scans but contemplate a career at the T&A TSA.

[Posted and authored by Aaron Worthing.]

Joooooish Conspiracies Everywhere! (Update: Dustin States the Obvious Point I Missed)

Filed under: General — Aaron Worthing @ 10:00 am

[Guest post by Aaron Worthing; if you have tips, please send them here.]

(First, let me note that calling Jewish people “Jooos” and variations of that is a mocking way of mocking anti-Semitism.  IMAO seems to be the originator of this meme, and the idea is that to anti-Semites they are always the “Jooos,” especially when they are accusing them of some kind of conspiracy.  And today I see two articles that will get the “Jooos run the world” crowd into a tissy.  But I wanted to explain the meme first, because I don’t want anyone who is not familiar with that meme to mistakenly think I engage in anti-Semitic conspiracy mongering.)

So via Patterico by email and Hot Air, we get this aerial view of the roof of the Tehran Airport:

Yep, that’s a Star of David, on a major building, in Iran. The JPost article has this as the sub-headline:

Building was constructed by Israeli engineers prior to Islamic Revolution; Iranian officials incensed, call for Jewish symbol’s removal.

Then in the lede they ask:

Did Israeli prankster architects sneak a Star of David onto the roof of the Teheran airport, or is the controversy in Iran over a Google Earth revelation much ado about nothing?

Um, you just answered your own question.  It was built before the revolution, at a time when the country simply didn’t hate Jews so much.  So its not a prank, more like an easter egg, like writing “John wuz here” in wet cement or carving your name into a tree trunk.

Of course the Iranian government reacted by considering the philosophical implications of the fact that Israelis and Persians once got along so well together that the Israelis built them an airport, leading the regime to a new understanding of the Jewish people and ushering in a new era of understanding between the two nations.

No, not really:

Once the existence of the Star of David was reported in Iranian media, government officials called for the immediate removal of the apparently offensive Jewish symbol.

The discovery of the symbol came three months after the Iranian public learned of the existence of a Star of David on the roof of a building in Teheran’s Revolution Square.

Meanwhile okay this is a possible Israeli conspiracy, but if it is their work, I approve. The Daily Beast credibly theorizes that the bombings of those Iranians scientists was a joint Israeli and American operation.  But it starts off with an interesting description of the car bombings that were reported Monday:

A group of masked assassins on motorcycles pulls up to an idling car. Inside the car is a nuclear scientist and his wife.

One of the assassins reaches out and attaches a magnetic bomb to the side of the car.

BOOM! The bomb explodes, killing the scientist and wounding his wife.

A plume of black smoke rises to the sky as the masked assassins speed away.

No, this is not a sneak peak at the script to the latest Bond movie. This incredible series of events actually happened on Monday. Twice.

Now they don’t make the Stuxnet connection that Debka file suggested, but still it is interesting stuff.  Although in truth, I am left wondering if anyone has any idea what is actually going on.  Any student of military history knows that it can take years for the full truth to come out.  I don’t mean that in a paranoid “they are out to get us” sort of way, but the government is on record lying.  For instance, if you read a history book and it says, “and then suddenly we found the enemy’s plans” be very skeptical.  At least nine times out of ten, that is a cover story for the truth: we obtained that information by espionage.  Particularly in the case of WWII these accounts often cover up information we learned by stealing the Nazis enigma machine.  The machine was basically a code writer and reader that the Nazis believed couldn’t be cracked.  The British did most of the legwork obtaining them and shared what they knew with us.  And the very fact we had this machine was not publicly known until the 1970.  Why?  Because as the Soviets took over, while the USSR itself didn’t use the device, a lot of the lesser Warsaw Pact nations did.  Likewise, do you know how we invented computers?  The cover story was that they were invented during the space race and for that purpose.  The truth, however, is that computers were actually invented in WWII to break codes, but their existence was kept a secret until we needed them for the space program.  The point is that the government will lie about this, and really as a rule that’s not always a bad thing.  I mean contrary to these Wikileaks morons seem to think, a nation must have some secrets.  But that means we can’t really know what is going on.

And that is one of the reasons why we have to have representative democracy, and one of the reasons why character is so important, especially in the Presidency.  The fact is the President can probably actually get away with murder if he or she wanted to.  You can put as many checks and balances on the President’s power as you want, but none of it will really work if the president is a sufficiently bad person.  So the character of our leaders  is very, very important.

Anyway, so as they say, read the whole thing.

Update: In the comments, Dustin points out that they really didn’t need Google Earth to discover this, given that this is at an airport. So I am calling B.S.  The pilots, at least, knew.  They knew for years.  They just didn’t say anything.  Which is interesting if you think about it.

And that sound you hear is me smacking myself on the forehead for not noticing such a basic point.  Thanks Dustin.

[Posted and authored by Aaron Worthing.]

Breaking: Virginia Federal Judge Upholds Obamacare

Filed under: General — Aaron Worthing @ 6:11 am

[Guest post by Aaron Worthing; if you have tips, please send them here.]

Now, let me start by making sure you understand that this is not the big case brought by Ken Cuccinelli, the Virginia Attorney General, on behalf of the commonwealth.  This is a separate lawsuit I didn’t even know existed until I saw the news, captioned Liberty University et. al. v. Geitner et. al.  The Hill reports on the decision here, and you can read for yourself, here.  I haven’t read a word of it so no analysis yet.  One thing to note is that if the Cuccinelli suit succeeds on the District Court level, it is more likely to be appealed to the Circuit level, if only to eliminate the conflict.

And the Fourth Circuit is about as different as you can get from the Ninth.  By reputation the Fifth Circuit is more conservative, but the Fourth is close behind.

[Posted and authored by Aaron Worthing.]


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