Patterico's Pontifications

12/14/2010

Josh Marshall is Preposterous On His Face

Filed under: General — Aaron Worthing @ 6:22 am



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

And the award for the most clueless analysis of yesterday’s Obamacare ruling goes to…  (drum roll please…)  Josh Marshall:

[T]he idea that buying health care coverage does not amount to “economic activity” seems preposterous on its face.

Indeed, it would be, if that was what the case was about. But in reality, the case was about whether the decision not to buy health insurance is an economic activity.  I mean, seriously, how can you discuss this issue without grasping this basic facet of the argument?  How can you read the opinion without grasping that this was a major issue in the case?  I know this is complex legal mumbo-jumbo, Josh, but let me give you one of literally around a dozen examples that discuss what was really at issue in the case:

The Commonwealth maintains that the failure, or refusal, of its citizens to elect to purchase health insurance is not economic activity historically subject to federal regulation under the Commerce Clause.

I know there is a lot of difficult legal jargon there, Josh, but what it means is that they are saying that when you choose not to buy something, it’s not economic activity.  /sarcasm off

Now normally I am very tolerant of a lay person’s ignorance of the law, but I can’t excuse this.  The language about what the issue was, was pretty plain.  And in fact, in the current version of this post, he links to an article from a fellow TPMer who discusses exactly this legal issue at length.  And yet even then it doesn’t dawn on him that he is fundamentally misunderstanding what the case is about?

I’m calling bull on that.  He knows.  He understands.  He is just choosing to tell a stupid lie in his effort to spin the thing.  I mean watch the spinning going on in its full context:

A year ago, no one took seriously the idea that a federal health care mandate was unconstitutional. And the idea that buying health care coverage does not amount to “economic activity” seems preposterous on its face. But the decision that just came down from the federal judgment in Virginia — that the federal health care mandate is unconstitutional — is an example that decades of Republicans packing the federal judiciary with activist judges has finally paid off.

So the first line asserted, lamely, that no one took the arguments that won yesterday seriously a year ago.  Now obviously that is BS (any honest lawyer would tell you that it was unprecedented and problematic even under expansive interpretations of the commerce cause), but I don’t want to focus on the BSitude of it, but on what he is trying to suggest, that somehow this decision was out of the mainstream.  Then he makes that preposterous “preposterous on its face” assertion.  What is the purpose of that?  To further characterize this viewpoint as somehow illegitimate.  And finally notice the insinuation then that this was the result of Republican “court packing” with “activist judges.”  Again, it’s BS, but don’t focus on that, but what he is trying to do with that BS.  He is trying to argue that this is nothing more than crazy activist Republicans gone off the reservation.

And you want to tell me he has no idea that this entire paragraph is BS?  Well, I don’t believe it.

But even if you did believe that he was innocently mistaken, isn’t the result the same?  If he really believes what he was shoveling, then he is so blinkered by his partisanship that his ability to perceive reality has been compromised.  Which means 1) you shouldn’t trust him anymore, and 2) he should find some other line of work.

[Posted and authored by Aaron Worthing.]

56 Responses to “Josh Marshall is Preposterous On His Face”

  1. Its not an accident. I saw another blogger claim that it was obvious that simply by being alive, you were part of the health care market. When I pointed out that he had shifted the argument, that it was about a mandate to buy health insurance, my comment was deleted.

    It is not an accident at all.

    SPQR (26be8b)

  2. SPQR

    Which blogger did that?

    Aaron Worthing (e7d72e)

  3. He’s a member of the Journolist, his function is to pour ink to the blogosphere, blind the unweary, then
    leave. His big claim to fame, was the US Attorney
    brouhaha, that added up to nothing much, he promised big doing with the Foggo case, that never
    materialized.

    narciso (6075d0)

  4. There is a more serious problem with his post:

    is an example that decades of Republicans packing the federal judiciary with activist judges has finally paid off

    Clearly, that should be “is an example OF HOW decades of Republicans packing the federal judiciary HAVE finally paid off”.

    Charles (dce15e)

  5. Projection, ‘it’s what’s for dinner’.

    narciso (6075d0)

  6. The simplest way to point out the inanity of the argument is that by a parity of reasoning the government could order you to buy a new Chevrolet because you are likely to use transportation in the future, and buying a Chevrolet is good for the economy because it puts people to work, and helps the government recoup taxpayer dollars that were put into GM.

    If the Commerce Clause can authorize the Fed. Gov’t to force you to buy a car you don’t want, then it can authorize anything. And once it is established to have no limit, then it is meaningless as a constraint on federal power.

    shipwreckedcrew (436eab)

  7. Buying health insurance is an economic activity that can be regulated. Josh is right on this point. Choosing to not buy health insurance also is an economic activity (at the individual level), becasue it is based on the principle of opportunity cost, an economic activity. Even given this, however, the commonwealth of virgina is right in asserting that the commerce clause has never ventured into the regulation of decisions to not buy; alternatively, stated, it has never ventured into the area of mandating the purchase of specific economic goods.

    John Edward (1d4ddb)

  8. #5, what language was that in? Deciding not to buy something is an economic inactivity. It is certainly not “commerce among the several states”.

    Milhouse (ea66e3)

  9. Sorry, #8 was a reply to #7, not to #5

    Milhouse (ea66e3)

  10. Milhouse gets it.

    There is no reasonable interpretation of the Constitution that says ‘not buying something’ is something the US Government can prohibit, in and of itself.

    There are unreasonable interpretations, sure.

    Dustin (b54cdc)

  11. Even if you accept the argument that a decision not to buy health insurance is “economic inactivity”, it is still inactivity that substantially affects interstate commerce, in that everyone else with health insurance is forced to subsidize the health care costs of the health insurance deadbeats.

    Therefore, the Affordable Health Act is within Congress’s powers, and the individual mandate is constitutional under the Necessary and Proper Clause of the Constitution (a clause which Hudson completely ignored).

    Kman (d30fc3)

  12. The government forces hospitals to give their services without charge to the uninsured and then uses that as the rational to force everyone to buy insurance.

    Could the government require all personal trainers to advise people on their exercise routines and then require all Americans to hire personal trainers? Do the personal trainers have a strong enough lobby to push through that mandate?

    What industry could NOT lobby for such a mandate using that logic? Where is there a natural or legal step once you step off that ledge?

    Machinist (74634b)

  13. If your read TPM on any regular basis (which sad to say I have) it becomes pretty clear that Marshall is little more than a political hack–someone in line with the editorial pages of the NYT’s. Anything bad about R’s or conservatives gets big play; anything bad about D’s or progs gets downplayed or ignored completely. I had hoped that when he started the site that he would hold both sides feet to the fire but he has shown over and over again that TPM is nothing more than a mouthpiece for D insiders and Journolist types which adds little to the overall quality of media or political coverage. This is just another example of Marshall’s spouting the company line.

    BT (74cbec)

  14. Kman, first of all, Hudson did not ignore the necessary and proper clause if you bother to read the opinion. Second, under your interpretation of the commerce clause, please explain to me what Congress cannot actually “mandate”.

    SPQR (e4f54d)

  15. You may find this of interest, Aaron.

    No Oil For Pacifists on the Issue

    Much like Patterico, he’s an attorney, so his opinions offer legal insight. And his link-heavy text points often to other relevant articles and/or legal information, without burying you in legalese.

    IGotBupkis (014150)

  16. SPQR

    we have resolved to ignore kman. i suggest you do the same. [And let me add, you don’t HAVE to take my suggestion. Its just that–a suggestion.]

    I mean look at his comment. its not even what the post is about. It has no relationship to my point, which is that Marshall is either clueless or dishonest.

    Aaron Worthing (e7d72e)

  17. Kman, first of all, Hudson did not ignore the necessary and proper clause if you bother to read the opinion

    Right. Bad choice of words. Probably should have said “dismisses” it.

    Second, under your interpretation of the commerce clause, please explain to me what Congress cannot actually “mandate”.

    Well, let’s go for the obvious one. Congress cannot mandate “no guns within a school zone” under the Commerce Clause, for starters.

    Kman (d30fc3)

  18. A.W., a point. I can only plead weakness of character – a chronic problem of mine.

    SPQR (e4f54d)

  19. I mean look at his comment. its not even what the post is about. It has no relationship to my point, which is that Marshall is either clueless or dishonest

    Right. This is a post blasting Josh Marshall, so all comments must either blast Josh Marshall, or defend him.

    So sayeth the AW.

    Kman (d30fc3)

  20. Although its hard when Kman writes obviously false things like his 12:01 pm which shows that he is dishonest, since his own “standard” does not exclude that example and shows he never actually bothered to read United States v. Lopez. Specifically footnote 4 of the majority opinion.

    SPQR (e4f54d)

  21. Arguing that not buying health insurance affects interstate commerce is simply another example (this time from the left) of contriving a rationale to justify whatever it is that one wants to accomplish.

    You want women to be able to get abortions? Interpret the Constitution in a way that supports banning laws to the contrary. You want to force healthy people to cough up money to pay for health care for the sick? You want Bush and not Gore to be President? Ditto and ditto.

    steve (369bc6)

  22. “A year ago, no one took seriously the idea that a federal health care mandate was unconstitutional.”

    I did. The feds have no enumerated power to force me to buy health insurance (or anything else for that matter). For that matter, Congress has no enumerated power to raise revenue in order to buy health insurance for their indigent friends (in exchange for votes, naturally, per usual Demoocrat practice). The whole thing is unconstitutional. I’ve been saying it all along…and so have all kinds of other people.

    Maybe Josh wasn’t listening. Is he a lefty? That would explain it.

    Dave Surls (83c9ba)

  23. Igotbupkis,

    Interesting analysis, but i think the guy is wrong. His reliance on bishop is wholly misplaced. in Bishop the court found that stealing a person’s car is economic activity. This is in contrast with U.S. v. Lopez where congress outlawed to mere possession of a handgun near a school. The court wrote:

    By contrast, we can easily appreciate how Congress could readily (and rationally) have believed that carjacking is both economically motivated and part of a greater economic activity.   Indeed, the rationale supporting such a conclusion, and distinguishing this case from Lopez, is patently obvious.   First, carjacking is economic in a way that possession of a handgun in a school zone is not.   When a criminal points a gun at a victim and takes his or her car, the criminal has made an economic gain and the victim has suffered an undeniable and substantial loss.   Replicated 15,000 or 20,000 times per year, the economic effects are indeed profound.   See infra n. 22.   By comparison, no matter how many criminals possess guns in school zones, there is no direct economic effect that arises from the crimes.

    Of course for the person being robbed, this is not a voluntary transaction, but they are not purporting to regulate those who are robbed, but those who rob. And carjacking in particular and auto theft in general is big business that no only regularly crosses state lines, but also crosses international lines. To be blunt, its a black market, and regulating it is no different than regulating the legal markets for other goods. Yes, there is a line talking about how you don’t have to have a voluntary exchange, but what the liberals want to eliminate is the entire “exchange” requirement.

    Aaron Worthing (e7d72e)

  24. SPQR

    > shows he never actually bothered to read United States v. Lopez.

    Kman doesn’t bother to read the posts he is responding to, let alone the cases he is talking about. which is what prompted the ignore decision. which i am about to break myself, so call me a hypocrite if you want.

    Aaron Worthing (e7d72e)

  25. SPQR:

    since his own “standard” does not exclude that example and shows he never actually bothered to read United States v. Lopez. Specifically footnote 4 of the majority opinion.

    So it’s your position that Congress can, under the Commerce Clause, mandate that nobody carry a gun into a school zone?

    Kman (d30fc3)

  26. The CBO called the mandate “an unprecedented form of federal action”… in 1994. The notion that the legality of the mandate wasn’t discussed by conservatives and libertarians at the time is what’s preposterous.

    Ellers (80d1a0)

  27. Kman, for a brief moment of character weakness, I’ll respond to your display of incompetence. Congress in fact has mandated such by reenacting the legislation at issue in United State v. Lopez, and the opinion hints in a footnote that the reenacted legislation may not be unconstitutional under the language of the opinion.

    But far more significant is that your explanation of the breadth of the commerce clause does not exclude what you brought up. Because you did not bother to actually think one bit, other than by repeating something you googled up and did not understand at all. Because you can’t actually answer my original question which was: Second, under your interpretation of the commerce clause, please explain to me what Congress cannot actually “mandate”.

    Note the “your”, Kman.

    Sheesh, what twit trolls we have here lately.

    SPQR (e4f54d)

  28. Kman

    You want to know why we are ignoring you? Well, here is example number 34234:

    > the individual mandate is constitutional under the Necessary and Proper Clause of the Constitution (a clause which Hudson completely ignored).

    That is not true. Hudson did not ignore it. He discussed it. You might not like his conclusion (Orin Kerr certainly doesn’t and i admit i am not enchanted by his reasoning). But it is flat out wrong to say that he “completely ignored” it.

    So which is it? Did you fail to read an opinion you are commenting on, again? Or did you read it and fail to understand this basic fact? Or are you just lying about the opinion?

    I report, and everyone else can decide.

    Aaron Worthing (b1db52)

  29. AW:

    That is not true. Hudson did not ignore it. He discussed it. You might not like his conclusion (Orin Kerr certainly doesn’t and i admit i am not enchanted by his reasoning). But it is flat out wrong to say that he “completely ignored” it.

    Yes, I agree with you on that — it was a bad choice of words. I didn’t mean to suggest that he failed to consider it; I meant to suggest that he failed at considering it, i.e., he got it wrong by rendering it a virtual nullity.

    Kman (d30fc3)

  30. I’m so reassured that the fellow who made that determination,Reischauer, made it to vice chair of the MPAB,

    narciso (6075d0)

  31. …he got it wrong by rendering it a virtual nullity.

    Since HCR advocates want to render the entire idea of Federal govt limited to enumerated powers [a nullity], the hypocrisy of that line is hilarious.

    I return you to your normal ignoring of the incompetence of the Kman troll.

    [Fixed by Aaron.]

    SPQR (e4f54d)

  32. According to Marshall’s logic, my decision not to buy a Chevy Volt affects interstate commerce, therefore the government can force me to buy a Chevy Volt.

    daleyrocks (c07dfa)

  33. Kman

    bad choice of words?

    If you had a history of carefully reading the arguments you disagree with and trying honestly to accurately describe them before you tore into them, I might believe you had a bad choice of words.

    But you don’t have that history, do you? You have a history making statements about cases without reading, of making comments about posts without reading them even enough to know who wrote them.

    why should we believe anything different happened here? Because you say so?

    This is why you are being ignored.

    Aaron Worthing (e7d72e)

  34. SPQR

    > Since HCR advocates want to render the entire idea of Federal govt limited to enumerated powers [a nullity], the hypocrisy of that line is hilarious.

    excellent point.

    Aaron Worthing (e7d72e)

  35. Well, it would have been better without the typo …

    SPQR (e4f54d)

  36. But far more significant is that your explanation of the breadth of the commerce clause does not exclude what you brought up

    First of all, I never explained the full “breadth” of the commerce clause anywhere here.

    Secondly, Congress cannot regulate that nobody carry a gun into a school zone, because such a proscription does not necessarily affect interstate commerce.

    That said, it is possible that I don’t understand your poorly-phrased question: under your interpretation of the commerce clause, please explain to me what Congress cannot actually “mandate”. Since all laws are mandates, isn’t that just asking me what the extent of the Commerce Clause is?

    And my answer is, Congress cannot pass laws where the issue at hand is not, or does not substantially affect, interstate commerce. Certain handgun regulations for example. Other purely intrastate economic transactions. You know this as well as I do, I suspect.

    Kman (d30fc3)

  37. This is why you are being ignored.

    Well, obviously, I’m NOT being ignored… but I don’t post here for attention anyway.

    Kman (d30fc3)

  38. For those that may not follow my earlier comment about US v. Lopez, it was a 1995 case that was the appeal of a conviction for violating a Federal law that banned possession of firearms on elementary school grounds. The Supreme Court struck down the conviction on the basis that Congress did not even bother to claim a nexus to interstate commerce for the statute. One reads that opinion and comes to teh conclusion that, wow, we finally found the end of the commerce clause power. But …

    I quote from footnote 4 of that opinion:

    [ Footnote 4 ] We note that on September 13, 1994, President Clinton signed into law the Violent Crime Control and Law Enforcement Act of 1994, Pub. L. 103-322, 108 Stat. 1796. Section 320904 of that Act, id., at 2125, amends 922(q) to include congressional findings regarding the effects of firearm possession in and around schools upon interstate and foreign commerce. The Government does not rely upon these subsequent findings as a substitute for the absence of findings in the first instance. Tr. of Oral Arg. 25 (“[W]e’re not relying on them in the strict sense of the word, but we think that at a very minimum they indicate that reasons can be identified for why Congress wanted to regulate this particular activity”). [ UNITED STATES v. LOPEZ, ___ U.S. ___ (1995) , 1]

    And ** poof ** any confidence in the conclusion that this opinion actually meaning that Congress can’t so regulate evaporates.

    Meanwhile, proponents of the HCR still punt the challenge to propose an interpretation of the commerce clause that allows HCR mandate but actually has some end, some point, where Congress can’t reach on the silly excuse of “affecting” interstate commerce.

    SPQR (e4f54d)

  39. “…but I don’t post here for attention anyway…”

    Bird are nesting in the branches at the end of your long wooden nose.

    C’mon. Really? You are honestly going with that, given your history of posting here?

    Sigh.

    Eric Blair (c8876d)

  40. SPQR

    Fixed your typo for you.

    Also, as for the legislative history, if memory serves that didn’t save the statue in U.S. v. Morrison, which i think was about the band, The Doors.

    no, that is a joke. it was actually about the violence agaisnt women act.

    Anyway, if memory serves, congress had extensive findings about the economic impact of violence against women and the court just didn’t care.

    Aaron Worthing (e7d72e)

  41. I guessing reading is like “getting your hair done” or something.

    Eric Blair (c8876d)

  42. Meanwhile, proponents of the HCR still punt the challenge to propose an interpretation of the commerce clause that allows HCR mandate…

    The HCR mandate is necessary and proper to effect the rest of Affordable Health Act (which is constitutional under the Commerce Clause). Even AW gets that.

    Kman (d30fc3)

  43. Which one hastens to add, was a Joe Biden production, VAWA was.

    narciso (6075d0)

  44. Meanwhile, proponents of the HCR still punt the challenge to propose an interpretation of the commerce clause that allows HCR mandate but actually has some end, some point, where Congress can’t reach on the silly excuse of “affecting” interstate commerce.

    They have no choice. The country they are envisioning is horrible, and they know it. If a republican proposed that kind of intrusion into our health care, or our lives, they would scream about it.

    They are not attempting to regulate commerce among the states when they fine me for not buying insurance. They are simply trying to make my lifestyle choices for me. Period.

    It’s possible to twist around reality, but John Marshall’s discussion of this issue is extremely dishonest. The idea that we’ve always accepted this degree of government power is absolutely untrue.

    Dustin (b54cdc)

  45. I am waiting with bated breath for Kman to educate me about the newly discovered constitutional right to adult consensual incest.

    daleyrocks (c07dfa)

  46. @22 “You want women to be able to get abortions?”

    That’s unconstitutional.

    Besides the fact that the State is going to need as many people as possible paying taxes, having a baby certainly involves commerce… baby food, baby clothes, etc. The government therefore has jurisdiction to restrict abortions except in cases of medical necessity, as having an abortion is a decision to not engage in commerce.

    The so-called “right to privacy” is really nothing more than a right to NOT engage in activity, and so doesn’t exist.

    Now, I don’t have the benefit of an education in the law, but am I understanding the basics of the pro-Obamacare logic correctly?

    malclave (1db6c5)

  47. “And my answer is, Congress cannot pass laws where the issue at hand is not, or does not substantially affect, interstate commerce.”

    Regulating interstate commerce and controlling anything that “effects” interstate commerce are two different things. If I choose to buy local products instead of products imported or grown in other states so as to avoid government control of my life and money, this has a big effect on interstate commerce.

    –Does that mean the Federal government can demand I buy imported products to put my choices under Federal control and force me to pay import duties that go to the government?

    –Why not as this effects interstate commerce?

    Does regulating our waterways give the government power to control rather I drink bottled or tap water?

    Machinist (74634b)

  48. malcave

    you are really going to like my new post. Just put it up. read especially to the end, where roe v. wade is used against the liberals.

    Aaron Worthing (e7d72e)

  49. “Therefore, the Affordable Health Act is within Congress’s powers, and the individual mandate is constitutional under the Necessary and Proper Clause of the Constitution…”

    Hardy har har.

    It’s illegal, unconstitutional, and what’s more it’s flat out tyranny.

    Dave Surls (e03429)

  50. Comment by Aaron Worthing — 12/14/2010 @ 12:54 pm

    Show off.

    With respect to US v. Morrison, ( 5 years after Lopez ), that’s a better example of our case regarding indirect non-economic activity than US v. Lopez. Neither are really on point given their applicability to criminal statutes. I only discussed it because the troll had already demonstrated that he did not understand the Lopez case.

    SPQR (26be8b)

  51. Two of the apparent arguments for the individual mandate seem to be quite similar – and equally self-serving.

    1. ERs are mandated by law to not refuse coverage to anyone, thus everyone takes part in the health care market whether they like it or not, due to the fact that they, some day, may have to use the ER.

    2. By not taking part in the health care insurance market, one is affecting the health care reform by driving up the costs of it, thus they are in fact not bystanders, and thus can be forced to pay for their negative effect on the system.

    In summary: due to other laws Congress has made, you are not to be considered an “inactive” participant in the health care (insurance) market, and thus your “inactivity” may be regulated under the Commerce Clause.

    Which means that as long as Congress sets up a system with laws that will be affected negatively by inactivity of the citizens, those citizens’ inactivity can be defined as activity that can be regulated.

    As someone else stated, Congress could thus pass a law compelling GM to make 50 million Chevy Volts; every American citizen’s decision not to buy one of these represents a negative effect on said decision, and thus can be considered an “action” which can be regulated; thus Congress can force you to buy a Chevy Volt.

    I didn’t realize that liberals were fans of corporatocracy.

    Seixon (ee9f62)

  52. Isn’t another flawed assumption the idea that just because someone chooses to not purchase insurance, they will somehow inevitably become a burden on the system, or the taxpayer.

    JD (d8bee7)

  53. It just seems like it is accepted as a fact that not purchasing insurance places a burden on others, when it simply is not necessarily so.

    JD (d8bee7)

  54. Oh, and calling JMM preposterous is like calling water wet, or Yelverton a midget coward.

    JD (d8bee7)

  55. If I choose to be homeless, does the Commerce Clause force me to buy a house or rent an apartment?

    If so, does it apply to illegal immigrants? And if it does, does it afford the right of citizenship because they contribute to interstate commerce?

    Does the commerce clause cause me to house National Guard troops in the event that the federal government decides that enforcement of health care, in the national interest and across state lines is necessary, and the only way to enforce the law is usurp the states?

    Look, all of these things are silly, but the commerce clause had and has a specific reason. Continual expansion of the clause makes it and the Constitution a mockery.

    At some point there comes a point to say stop.

    Ag80 (2d08ed)


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