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.]

52 Responses to “Boycotting Abortion: Has Obamacare Been Sunk by Citizens United and the NAACP v. Claiborne Hardware?”

  1. 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.

    Congress couldn’t force anyone to take the bus, but it could force you to buy bus tickets.

    The local government could institute an income tax and use it to collect money for a “free” mass-transit system. The mass-transit system could be operated by private contractors.

    Daryl Herbert (45e760)

  2. Daryl

    That’s a different thing. What this decision says is that the government can force you to buy a product from a private individual or company. thus: boycotts can be completely banned.

    But we know the SC has said the government cannot do that.

    Aaron Worthing (b8e056)

  3. Clinton appointee.

    Which, for the umpteenth time, should remind those who stayed home or voted third party rather than support GHWB, Dole, and McCain: elections matter.
    They have long-term consequences reaching far beyond your petty personal pique. Few if any candidates will fit your narrow checklist perfectly. Deal with it like an adult, mmmkay?

    Estragon (ec6a4b)

  4. Hi Aaron,

    I desperately want the health care bill to be held unconstitutional. But it seems to me that your free speech analysis would effectively negate the Commerce Clause. Would there be any exercise of commerce clause power that would not be subject to this free speech assail?

    Sarah

    Sarah (c3e587)

  5. Sarah

    I don’t see how the boycott argument reaches anything but the government forcing you to interact with a private company. As congress noted about 17 years ago when contemplating Hillarycare, this has never been tried before.

    Aaron Worthing (e7d72e)

  6. Estragon, I have no reason to believe that Bush Sr or Dole would have been any better than Clinton, or that their judicial nominations would have been better.

    Even in hindsight, given my choice again I would not vote for Bush Sr or Dole.

    Milhouse (ea66e3)

  7. While I expected some desperation from the ‘combine’, progressives in both parties, following Nov. 2, I was looking for acceptance of defeat at some level.

    On the contrary, with the DHS seizing domains, TSA inspecting the enslaved, Fed debasing the currency, and Judicial branch free-for-all, events seem to be cresting all over again.

    Like a score proceeding by crescendo without end. Really unnerving.

    gary gulrud (790d43)

  8. “given my choice again I would not vote for Bush Sr or Dole”

    I did and gave the Perot renegades grief about wasting their votes.

    With McCain I swore I’d never ‘hold my nose’, but somehow he found Palin to goose the base and I caved.

    Now, as ever, the regulars drag out the ‘gotta have someone electable, qualified’ panic again, dusted and buffed.

    ESAD. Death by decapitation or blood loss under an errant scalpel, is still passive.

    gary gulrud (790d43)

  9. Gary, there was no need for nose-holding when voting for Palin. Had it been possible to do so without also voting for McCain, I might have taken that option, but since it was impossible I considered it a fair exchange.

    Another difference between 2008 and 1992/96 is that it already seemed that however bad McCain would be, Obama was likely to be worse. How much worse nobody could have known, but at least somewhat worse. And there was always the possibility that McCain might not serve out the term, and we’d get Palin as president. Whereas in 1992 and 96 there was no reason to suppose Clinton would be appreciably worse than his opponents, and with hindsight there’s still no such reason. So I don’t regret not voting for them.

    Milhouse (ea66e3)

  10. Interesting. Can the 1st amendment subsidy theory be applied to NPR, if NPR can be shown to be political speech?

    BostonShepherd (89e6c4)

  11. boston

    no. the government can force you to pay taxes and then use taxes for any speech it wants. that is clear in the precedents. the only limitation is the establishment clause, so that only applies to religion. but the government can promote viewpoints all it wants.

    the key problem here is that they are forcing you to give your money to private individuals.

    Also, i suspect the government cannot force you generally to buy their stuff. Like if you decided to boycott GM because of the bailout, i don’t think the government could say, “we own the company, so it is in essence federal speech. so we can force you to buy a GM car.” That is, they can probably tax you to subsidize GM cars, but they can’t make you buy one. But i haven’t researched that area of law so i can’t be sure.

    Aaron Worthing (e7d72e)

  12. “there was no need for nose-holding when voting for Palin”

    And the party regulars never, ever, reciprocate with the horsesh*t they expect us to gratefully cram down.

    My first opportunity to select POTUS was Nixon vs. McGovern, the Socialists holding the 3rd position.

    The gloss ‘lesser of two evils’ held no sway in that choice owing to the candidates’ unsuitabilty as people.

    Today candidates as little different as Slick and G.H.W. present a comparable moral obligation not to participate-the extremity of circumstance vis a vis their total inadequacy.

    gary gulrud (790d43)

  13. Free speech protection is implicated where the government requires an individual to subsidize a private message with which he disagrees…

    Stupid argument. I guess it only matters if you agree with the message or not. Many munincipalities fund Christmas… even creationism.

    ajb (9df40f)

  14. ajb

    the key word in that sentence is private.

    But please, do explain to me why you think the government should have been allowed to outlaw the montgomery bus boycott. and if you are forced to support a company that contributes to republicans, you will be okay with that, right?

    As for your cite, here’s the reality. they are building a creationist theme park and are seeking tax incentives typically given to tourist attraction. Because, love creationism or not, it will be a tourist attraction. i mean think of how many NYT reporters will come there to mock them? If they built a secular theme park you wouldn’t deny that the state could give them tax incentives, but because the theme park has a creationist message that they should be discriminated against.

    It all depends on whether the statute is neutral, or not. if it is, it isn’t a problem.

    Aaron Worthing (e7d72e)

  15. ajb

    btw, for bonus points, notice that you called the judge who agreed with you, stupid.

    Aaron Worthing (e7d72e)

  16. Mr. Worthing, why do we call this angry little guitarist anything other than his name: Professor Yelverton?

    And he comes out of the box with sneering anger. Even though, time after time, he gets shown that he is astoundingly ignorant of much of what he propounds (I love it when he brags about taking a chemistry course, attacks others for being “antiscience,” and repeatedly demonstrates that if he took a science course, it didn’t “take”).

    Yet he calls other people “stupid” quite often. Gosh, I wonder why?

    Eric Blair (c8876d)

  17. AW – Do you think Willie the racist midget hilljack Yelverton, Prof of Plagiarism, link spammer extrordinaire, will actually honestly discuss this with you?

    JD (d56362)

  18. Comment by ajb — 12/2/2010 @ 7:56 am

    Another example of ajb posting links that don’t say what he claims they do. The dishonesty is so brazen it probably is just utter incompetence.

    SPQR (26be8b)

  19. No, I called Liberty U. stupid. You can call St. Patricks Cathedral a tourist attraction, but should the gov’t fund it?

    ajb (9df40f)

  20. Professor Yelverton (and why the “ajb” and so many other nicknames, by the way?), you certainly do call people “stupid” often. You once told me I was stupid, which is why I delight in demonstrating to others you are an angry, ignorant little troll, who keeps popping up for yet more abuse.

    Eric Blair (c8876d)

  21. Napoleon complex, coupled with knowing that ukelele players really aren’t academics.

    JD (822109)

  22. ajb

    > No, I called Liberty U. stupid.

    You do know I am quoting the court in that passage you quoted. this is a statement of the law by the court (black letter law, i would add). So you were calling the court stupid, whether you realized it or not.

    > You can call St. Patricks Cathedral a tourist attraction, but should the gov’t fund it?

    First, how classically liberal. letting a person keep more of their own money = aid.

    Second, let’s pretend it IS aid. Black letter law says the government can provide religious institutions aid on neutral, non-religious grounds.

    And are you trying to imply that it is a stretch to call an amusement park a tourist attraction?

    Aaron Worthing (e7d72e)

  23. This is so typical of ajb’s links. He claims it says one thing, but when you look, nada. The same above, the article says that developers of a proposed creationist theme park might ask for tax incentives from the state and ajb claims that the story says that the govt “funds” creationism.

    Falsehood or incompetence? Who cares? Its always the same incoherent drivel.

    SPQR (26be8b)

  24. Creation museum is a religious theme park. I was refering to the judge’s quote of the second argument. It was a stupid angle by Liberty to claim free speech infringement.

    ajb (9df40f)

  25. ajb, incoherent still.

    SPQR (26be8b)

  26. Notice how Professor Yelverton flails away, SPQR? I think he has plenty of neutrons to go with the toxins generated by aspartame.

    And yet he prattles on about “anti-science.”

    Finally, again: why all the different nicknames?

    Kind of sad, when you think about it.

    Eric Blair (c8876d)

  27. Oh, and to be clear? I’m not topic because Professor Yelverton isn’t posting to be on topic; he is posting to somehow feel good about himself by sneering at others.

    But he shows how shallow his life is by doing so.

    Personally, I have learned a lot from reading many posts here—particularly when I don’t agree with the poster.

    This is a foreign concept to angry alphabetists.

    Eric Blair (c8876d)

  28. ajb

    > Creation museum is a religious theme park.

    and if the law would provide tax incentives to “theme parks” then it would be religious discrimination to exclude them just because they are religious.

    > I was refering to the judge’s quote of the second argument.

    Except the judge was NOT quoting their argument. He was stating the law. so maybe you should stop calling people stupid.

    > It was a stupid angle by Liberty to claim free speech infringement.

    So the government can outlaw the Montgomery Bus Boycott?

    Aaron Worthing (e7d72e)

  29. 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.”

    (1) The “right to associate” (which, by the way, is a phrase you won’t find in the Constitution, Mr. Strict Constructionist) isn’t as broad as you think it is. If mere physical interaction doesn’t qualify as “association” (Rumsfeld v. FAIR), then an exchange of money doesn’t rise to that level either.

    (2) In any event, the Affordable Health Care Act doesn’t put Liberty into the either/or dilemna you’ve described. In fact, Liberty can use the health care plan it has now, and comply with the Act, and still not associate with any entity that engages in abortion. So it’s not being forced to do anything in violation of its rights, associational or otherwise — a point made by the Court in its opinion.

    Kman (d30fc3)

  30. SPQR ai it apparently went to the Gren Gleenwalk and mediamatterz school of dishonest linking.

    JD (6e25b4)

  31. Kman

    Rumsfeld v. Fair was about the schools wanting its cake and eating it too. They accepted federal money but wanted the right to avoid federal strings attached. you have always been wrong about that case and continue to be.

    > If mere physical interaction doesn’t qualify as “association” (Rumsfeld v. FAIR), then an exchange of money doesn’t rise to that level either.

    Okay. then i propose a new law. the permanent republican majority act. under this law, every citizen is required to give $5,000 to the republican party, every year. is that constitutional?

    > Liberty can use the health care plan it has now,

    And what if that company goes out of business? Or changes its policies? and what if all the remaining choices provide abortions?

    The fact is your argument would allow the government to ban the montgomery bus boycott. its unconstitutional.

    Aaron Worthing (e7d72e)

  32. Okay. then i propose a new law. the permanent republican majority act. under this law, every citizen is required to give $5,000 to the republican party, every year. is that constitutional?

    It doesn’t run afoul of your “right to associate”, if that’s what you’re asking. In that sense, it is no different than laws requiring drivers to purchase auto insurance.

    Now, if it were a federal law, I see some Commerce Clause problems…..

    And what if that company goes out of business? Or changes its policies? and what if all the remaining choices provide abortions?

    But now you’re engaging in “what ifs”, meaning that Liberty has no actual injury in fact. It’s damages are speculative at best.

    Still… under the Affordable Health Care Act, there has to be at least one plan under each of the state health insurance exchange that doesn’t cover abortions.

    I mean, the abortion issue was discussed and hashed out by Congress at the time. You know that, right?

    Kman (d30fc3)

  33. Now, if it were a federal law, I see some Commerce Clause problems…..

    Elaborate, expert who never is able to coherently elaborate.

    Dustin (b54cdc)

  34. Dustin:

    Elaborate, expert who never is able to coherently elaborate.

    Well, I’m not sure what the purpose of AW’s proposed hypothetical “new law” is, so I can’t say for sure…. but it doesn’t sound like something within the powers of Congress to pass, even under an expansive view of the Commerce Clause. If I’m right about that, then it is unconstitutional for reasons unrelated to the First Amendment and “associational” rights.

    Kman (d30fc3)

  35. Kman

    Wow, so i can force you to support the republican party.

    Its nice to see your dictatorial tendencies blossoming.

    And commerce clause problems? Give me a break. How on earth can you argue in one breath that obamacare is constitutional under the commerce clause, but this is not? Oh, wait, here is your brilliant argument.

    > but it doesn’t sound like something within the powers of Congress to pass,

    bwahahahaha. It doesn’t “sound like” something they can do? are you saying it can’t be found in a prenumbra? i guess you would say that you can’t percisely define a commerce clause power, but you know it when you see it?

    > Still… under the Affordable Health Care Act, there has to be at least one plan under each of the state health insurance exchange that doesn’t cover abortions.

    Way to not read the opinion, btw. What the law actually says and this is mentioned in the opinion, is that they are only required to ensure that there is one plan that does not provide abortion except in cases of rape, incest and danger to the mother. Which only contradicts the religious beliefs of… the entire Catholic church, for starters (meaning the official church–obviously individual catholics do not go so far). So there is less to your opt out than meets the eye.

    Oh, and all of that rests on an executive order that could be changed at any time. So we get to enjoy freedom of expression only if the president allows us to?

    And that only even talks about abortion. What if all the insurance companies have investments in isreal and you want to boycott such companies? What if all of those companies hold a yearly Rachel Corrie memorial day at the local International House of Pancakes and you are offended by that? What if you feel these companies do not provide sufficient support for breast cancer research? What if you just don’t like their political donations to support Proposition 8? You have a constitutional right to boycott companies, that this law is infringing on it.

    Aaron Worthing (e7d72e)

  36. and no, the word “associate” is not there, but assemble is. and i interpret them in precisely the same way, whatever the SC says.

    But Mr. Living Constitution would overturn Claiborne Hardware and force black people to do business with a store that discriminates against them.

    Aaron Worthing (e7d72e)

  37. It doesn’t “sound like” something they can do? are you saying it can’t be found in a prenumbra? i guess you would say that you can’t percisely define a commerce clause power, but you know it when you see it?

    I’m saying I can’t precisely define what your hypothetical law is about because it’s your hypothetical. Jeez.

    So there is less to your opt out than meets the eye.

    Actually, if you have read the opinion, there’s MORE than what I’ve described here, i.e., lots of ways that Liberty University and others can still comply with “Obamacare” and not relinquish any associational (or as you would have it, “non-associational”) rights. Including, by the way, NOT getting health insurance and paying a fine. That way, you can comply with the law and not have to pay insurance companies.

    Oh, and all of that rests on an executive order that could be changed at any time

    You can’t succeed on a constitutional challenge based on what a future president might possibly do in the future.

    What if all the insurance companies have investments in isreal and you want to boycott such companies? What if all of those companies hold a yearly Rachel Corrie memorial day at the local International House of Pancakes and you are offended by that?…. You have a constitutional right to boycott companies, that this law is infringing on it.

    To the extent I have a “constitutional right to boycott companies” (which you will find in the Constitution right next to “the right to get gay married”), that right is circumscribed… as are ALL RIGHTS. That’s why I still have to pay income taxes even if wanted to boycott Halliburton. The tax code doesn’t become unconstitutional merely because part of the money I pay in taxes will get Halliburton coodies.

    Kman (d30fc3)

  38. and no, the word “associate” is not there, but assemble is. and i interpret them in precisely the same way, whatever the SC says

    Oh, okay. I thought we were having a discussion about law and the Supreme Court as they exist in the real world (where the right to associate is NOT the same as the right to assemble). I didn’t realize we were having a discussion about the law and the Supreme Court in AW fantasy land. You should have specified that in your post.

    Yeah, I concede that in your world the sky can be green and the law can bend any fantastical way you please, including in such a way that boycotts can be made unconstitutional.

    Kman (d30fc3)

  39. Kman

    > I’m saying

    Face it, your fuzziness has been exposed.

    And you say

    > lots of ways that Liberty University and others can still comply with “Obamacare” and not relinquish any associational (or as you would have it, “non-associational”) rights.

    But the only way you mention is this:

    > Including, by the way, NOT getting health insurance and paying a fine.

    Lol, so according to you, the government has the right to fine you for purely exercising freedom of speech in the form of a boycott.

    > You can’t succeed on a constitutional challenge based on what a future president might possibly do in the future.

    Its funny how you apply overbreadth in situations where it doesn’t apply and then fail to do so where it does.

    > That’s why I still have to pay income taxes

    So you apparently didn’t read the post, either. The courts have explicitly distinguished between boycotting a private company which is your constitutional right, and boycotting taxes, which is not. And that might have something to do with the fact that the Federal Government is specifically empowered to raise taxes. So saying you can’t raise taxes because of the first amendment is basically arguing that the constitution is unconstitutional. By comparison, the first amendment can be read correctly as a limit on any and all implied powers, so even if the right to force you to buy products is ordinarily implied by those words [in the commerce clause], you can’t interpret it that way because it would violate the first amendment. But thank you for playing.

    So you have precedent against you and the text of the constitution. And I thought you said that the constitution meant whatever the supreme court said it meant. But according to you, it didn’t mean what it said in Claiborne Hardware.

    I mean I thought liberals LIKED the Montgomery bus boycott.

    > To the extent I have a “constitutional right to boycott companies”… that right is circumscribed… as are ALL RIGHTS.\

    And under supreme court precedent the right to expression can only be restrained if the regulation is narrowly tailored to serve a compelling purpose and is content neutral. The exemption for some abortions and not others renders it content specific. And what exactly is compelling about this, anyway? And even if compelling, they had the means to do this that would infringe less on these expression rights. And for extra comedy purposes what would that less-infringing option be? A public option, supported by taxes. Heh.

    So the irony is complete. This would probably have been constitutional with a public option.

    Aaron Worthing (e7d72e)

  40. Kman

    > I thought we were having a discussion about law and the Supreme Court as they exist in the real world

    You asked me how I justified my approach under original intent and then you b*tch at me that I wasn’t talking precedent?

    And you call me a hack?

    And you don’t even want to talk about precedent. You apparently would allow a state to force black people to frequent a business that discriminates against them. And you apparently have no objection to forcing private individuals to support a specific political party, at least so long as it is a state and not the federal government doing it. because when the federal government, you have discovered a limitation on the commerce clause power that you previously couldn’t find, in the very same discussion.

    Aaron Worthing (e7d72e)

  41. Would there be any exercise of commerce clause power that would not be subject to this free speech assail?

    No.

    Michael Ejercito (249c90)

  42. The courts have explicitly distinguished between boycotting a private company which is your constitutional right, and boycotting taxes, which is not.

    Great! Then we’ll just tax Liberty University and others who refuse to get health insurance, instead of fining them.

    That was easy. Next?

    You apparently would allow a state to force black people to frequent a business that discriminates against them.

    Right. Liberty University can, under the Affordable Healthcare Act, still do what it is doing now — providing health insurance to its employees under plans that do not cover abortions… therefore, that means I’m in favor of… what?… forcing black people to be refused service at Woolworth’s?

    The flaws in your logic is what leads to this absurdity. Nothing else.

    Did you talk like this in law school, and didn’t the snickering behind your back get annoying after a while?

    Kman (d30fc3)

  43. That is not what barckyCare did though, kmart. So, your cSual dismissal falls smack dab on it’s face.

    JD (eb5afc)

  44. If you like the coverage you have now, you can keep it. I promise. Pinky swear. No crossies.

    JD (eb5afc)

  45. Not sure where cSual came from. I meant casual. Or douchey.

    JD (eb5afc)

  46. Kman

    > Then we’ll just tax Liberty University and others who refuse to get health insurance, instead of fining them.

    Sure. Then the courts will strike down obamacare, in toto, and the democrats can then convince the people to let them have power so they can pass it again. You should hold your breath while you wait, because surely that will happen quickly.

    > providing health insurance to its employees under plans that do not cover abortions

    No, and now you are lying. I have already shown you to be wrong on this point. And you haven’t even bothered to dispute it, nor could you.

    Aaron Worthing (e7d72e)

  47. “Then we’ll just tax Liberty University and others who refuse to get health insurance, instead of fining them.”

    LOL.

    I was heartened when the courts acknowledged this sleazy tactic for what it was.

    If you’re penalizing them, own it. If it’s not constitutional to penalize, don’t burn the constitution by lying about what you’re doing… just obey the damn law. I know Kman has said in the past he doesn’t really care what the constitution says so much as getting whatever isolated result he wants, but it really does matter that we all work within the system. Things have strayed far enough from the law as they are.

    Dustin (b54cdc)

  48. Try this one on for size, Yer Honor:

    I will not comply. I will not pay. Give me the jail time or go away.

    mojo (8096f2)

  49. Dustin

    I don’t think Kman’s position is that he is results-oriented. His claim is that the constitution is whatever the S.C. says it is. Which in day to day practice as a lawyer, that is for practical purposes, right. But that shuts down all ability to criticize them. I mean, when Nixon said “if the President does it, it is not illegal” everyone watching is rightfully appalled. But people like Kman have so crawled up their own keister that they can say, “if the S.C. does it, it is not illegal” without a bit of irony. That attitude is unsuited for a free man.

    now you might question how sincerely kman is in his slavish attitude. i mean for a guy who claims the constitution is whatever the S.C. says it is, he seems to be disputing alot of precedents. For instance, in interpreting the 1st Amendment as incorporated to the states, the S.C. said “[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.” And there is no reasonable basis to believe that the S.C. would interpret the first amendment any differently when its the Feds involved. But somehow he doesn’t think there is a right to boycott. If you believe that the constitution is just what the S.C. says it is, then why isn’t that a slam dunk?

    Aaron Worthing (e7d72e)

  50. I recall Kman noting he was more interested in a result than what the constitution permitted in a different thread, Aaron.

    Of course, in any practical sense, what the SC says the Constitution says is the law. As they say on that plaque on their building, it has to be someone’s department to interpret what the law is (paraphrase).

    You’re right, it’s a cop out of the discussion and Kman is certainly not consistent with stare decisis.

    Dustin (b54cdc)

  51. By the same logic, I can now be ordered to buy a new car every year because the fact that I might be a car in the future means that in the aggregate all potential car buyers are engage in inactivity effecting interstate commerce, giving Congres the necessary constitutional basis to regulate our decision-making in that regard.

    shipwreckedcrew (4ae072)


  52. 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.

    Hrm, long after the post, since I got linked here….

    Your faulty presumption is that these #$%#$ c-suckers aren’t already thinking they have the power to force care on you.

    Are you really, really going to argue they aren’t absolutely certain they have that right and power “and duty”Kommissar?

    IgotBupkis, President, United Anarchist Society (c9dcd8)


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