Patterico's Pontifications

2/9/2011

Pounding the Table on Obamacare: John Yoo and James Taranto on Tribe

Filed under: General — Aaron Worthing @ 7:29 am



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

There is an old saying among lawyers, and while there are a lot of variations in how it goes, most versions say something close to this: “If the facts are against you, argue the law.  If the law is against you, argue the facts.  If both are against you, pound the table.”

And when you read John Yoo’s and James Taranto’s take on Tribe’s and (in Taranto’s case) Amar’s recent pieces on the constitutionality of Obamacare you very much get the feeling that this is what they are really doing.  I mean, seriously, comparing Judge Vinson who vindicated individual rights to Justice Taney who vindicated slavery?  What can you call it, but pounding on the table?

So let’s start with John Yoo.  John Yoo is famous for being one of the people who had the temerity to give President Bush legal advice and has since then been the target of an idiotic and oppressive attempt to outlaw legal counsel that liberals don’t agree with.  Now yesterday Ann Althouse was skewering Tribe for his arrogance in an indirect fashion (just keep scrolling).  Yoo fully calls it out:

The article’s tone is not that of an observer; Tribe comes across as a teacher instructing the Justices not to disappoint him.  Why the Justices would seek to decide a case so as to fall within the good graces of a single professor of constitutional law is beyond me.

And he rightly notes that this is likely to backfire:

By trying to manipulate the politics of the Court, no matter how transparently and unsuccessfully, Tribe only contributes to an atmosphere that politicizes the Court’s decisions, which in this case will only help opponents of the law who have the majority of the American people on their side.

In other words, he is saying, “do you really want to make this decision about politics, Larry?  Because in case you haven’t noticed, in the political arena, your side has been losing this debate.”

Read the whole thing.  It’s all good.

And while Taranto is no law professor, he is a smart guy who thinks logically, so his analysis of the law is often better than that of many professors.  Describing both Tribe’s and Amar’s piece as claiming Obamacare is constitutional, he writes:

We were going to write “argue” rather than “claim,” but we think that may be too generous. Neither article is a serious piece of legal analysis, because both professors simply refuse to take seriously the legal arguments on the other side, even after those arguments have been accepted by two federal trial judges. Rather than grapple with a novel legal issue in a serious scholarly way, it’s as if they stick their fingers in their ears and sing “Law law law law law.”

And that is the core of it.  They make a vague wave at legal argumentation.  But then Amar starts pounding the table by insulting Judge Vinson.  And Tribe starts pounding his chest, saying more or less, “I am a big constitutional law scholar and therefore you should listen to me, and if you don’t you are either stupid or a partisan.”  Now if they had the facts, or the law, on their side would they be pounding away?

In October of 2009, a CNS reporter asked Nancy Pelosi where in the Constitution Congress was granted the power to impose the mandate.  Rather than attempting to answer that question, she replied simply,Are you serious? Are you serious?”  You can listen to her response, and hear her complete disdain for the question, here:

Later, they got this official response:

Her press spokesman, Nadeam Elshami, then told CNSNews.com that asking the speaker of the House where the Constitution authorized Congress to mandate[] that individual Americans buy health insurance as not a “serious question.”

“You can put this on the record,” said Elshami. “That is not a serious question. That is not a serious question.”

Now they know it is a serious question and a serious threat to the law.  And it is becoming increasingly plain they have no good answer to it.  So they pound the table.

——————–

By the way, thanks back to Joseph Lawler for linking to my piece on Tribe yesterday.

[Posted and authored by Aaron Worthing.]

76 Responses to “Pounding the Table on Obamacare: John Yoo and James Taranto on Tribe”

  1. The arguments from the left are anticipating they will lose in the court. This is an old tactic of theirs and might even be in Alinsky’s book.

    Mike K (8f3f19)

  2. Excellent summation, Mr. Worthing. I really appreciated that last part. This is why it was almost a holiday to me when Pelosi was deposed as Speaker of the House.

    I find myself defending Sarah Palin constantly nowadays, and it’s not because I think Palin is the answer — I don’t. She’s not nearly ready, and maybe never will be. She is, however, an electromagnet of media bias like I’ve never witnessed in over four decades of news addiction. It infuriates me when I see her upbraided for her every misspelled word (e.g., “refudiate”) while the third-in-line for Commander-in-Chief not only gets away with punting a Constitutional question, the senior Democrat in the Senate (Chuck Schumer) is given a pass when he says on national television that the three branches of government are the Executive, the House, and the Senate!

    L.N. Smithee (3b27d7)

  3. They are already trying to delegitimize opposition.

    JD (8c753a)

  4. L.N. that schumer statement is even funnier when you check to see what committees he serves on.

    Aaron Worthing (e7d72e)

  5. I think that it is truism that the Left is becoming a part of “feelings” while the Right is trying to be a party of “rules.”

    Feelings seem kinder than rules, drives this debate, maybe. Except feelings are very, very malleable. And I have never understood why the Left doesn’t get that: the precedents that they set can be used by their opponents.

    The only just law is a law that you would not mind in the hands of your bitterest enemies. Just my opinion.

    Simon Jester (c8876d)

  6. simon

    > the precedents that they set can be used by their opponents.

    very appropos of my next post. but i will point out that the left often encourages an interpretation of the law that means that no matter what happens, they always win.

    Aaron Worthing (e7d72e)

  7. In other words, he is saying, “do you really want to make this decision about politics, Larry?…”

    The spin machine has been set to 11. Tribe’s article plainly says that people who assume that the SCOTUS justice will act in a politically partisan way, are in the WRONG.

    And by saying that, the spin machine (you, Yoo, etc.) is making it out so that Tribe is actually accusing the judges of playing politics.

    Yoo’s article is particularly lame. I can do that too: “AW writes as if he was a _________. Why AW thinks anyone should respect a __________ is beyond me.”

    Yeah, that’s scholarly legal writing from a legal heavyweight

    My favorite part of the Yoo article is this:

    …the Court has never upheld a law that compelled individuals to undertake any activity, economic or not (except for jury duty and the military draft)

    Lol. Gotta love the “other than the draft” in parentheses. It’s perfectly okay for the government to drag your ass go to some far-off land and perhaps get killed, but to mandate the buying health insurance (which 85% of us do voluntarily anyway)? THAT’S an affront to personal liberty.

    Kman (d30fc3)


  8. most versions say something close to this: “If the facts are against you, argue the law. If the law is against you, argue the facts. If both are against you, pound the table.”

    Well, you got the gist of it correct, but you missed the joke in the original:

    “If the facts are against you, pound on the law. If the law is against you, pound on the facts. If both are against you, pound on the table.”

    ;D

    IgotBupkis, President, United Anarchist Society (c9dcd8)

  9. The only just law is a law that you would not mind in the hands of your bitterest enemies. Just my opinion.

    Comment by Simon Jester —

    This should be everyone’s opinion.

    The best way to approach an unjust law is to enforce it until it is changed. We should learn to be much more careful about the powers we give our government, and assume those powers will be abused.

    Dustin (b54cdc)


  10. It’s perfectly okay for the government to drag your ass go to some far-off land and perhaps get killed, but to mandate the buying health insurance (which 85% of us do voluntarily anyway)? THAT’S an affront to personal liberty.

    </i

    Uh, yeah, geeenyus, it is, on both counts.

    You have a sovereign duty as a citizen of the USA to assist in defending her against foreign threats. That’s the price you pay for citizenship.

    We’ve backed off (probably correctly**) from the assertion that you have to do so no matter what, against any perceived threat, but that doesn’t change the duty itself, only the extent of its context.

    By what “sovereign duty” do you imagine one must wager on needing health care…?

    ===============
    ** I’m not entirely convinced Robert Heinlein’s notion of some form of service as a requirement for obtaining franchise is a bad idea, however.

    IgotBupkis, President, United Anarchist Society (c9dcd8)


  11. The best way to approach an unjust law is to enforce it until it is changed. We should learn to be much more careful about the powers we give our government, and assume those powers will be abused.

    Half right:

    The best way to approach an unjust law is to enforce and nullify it until it is changed.

    😀

    IgotBupkis, President, United Anarchist Society (c9dcd8)

  12. Nope. if you can not apply the law in court, you shouldn’t be on the jury.

    I don’t have to like a law in order to follow it.

    Scott Jacobs (d027b8)

  13. igotbupkis, there’s a point where nullifying an injustice is the moral thing to do, but in my thinking is the concern that only the elite and the powerful can get laws bent the way they want.

    For example, Murkowski was able to get a completely different write-in process, compared against every single other write in candidate in Alaskan history. Some of the legal claims were that the law as it plainly appears is just too darn unfair. But what about all the weaker, less corrupt, less wealthy write ins? They still have to live with the old law now.

    So sure, nullify if that’s what it takes for justice in an extreme case, but I personally think unjust laws should be seen as inviolable when someone powerful notes they are cramping their plans.

    There are a lot of hardcore hacks who nakedly reinterpret everything to achieve the party result they want, instead of hoping for a legal and (small d) democratic government that we can honestly interact with.

    Dustin (b54cdc)

  14. Kman,

    100% of us engage in the voluntary consumption of food. So you’re cool with the idea of the Feds mandating what we may eat? Can’t be a affront to liberty if everyone’s already doing it, right?

    Blue Ox (ff919a)

  15. 85% of people watch television, so it should be no problem for kmart to let the government determine what it is allowed to watch.

    And Tribe most certainly was calling them partisan. His construct only allows for non-partisans to agree with him.

    You seem angry.

    JD (2da347)

  16. And, kmart should be fine with the government fining people for not buying 60 inch LED’s, and specifying which models are appropriate to purchase.

    JD (6e25b4)

  17. 100% of us engage in the voluntary consumption of food. So you’re cool with the idea of the Feds mandating what we may eat?

    Well, the feds to some extent DO mandate what we may eat by making sure the food we buy is devoid of contaminants, rat feces, etc., as well as making sure that we KNOW what we are actually eating. Do I consider this an affront to my liberty? Not at all.

    But if you’re asking that the feds mandate what I eat in terms of, you know, planning every meal I have down to the last pea, then of course I have a problem with that.

    But that’s one of the fear-mongering slippery slope ooga-booga arguments that excites those tin-foil hat wearers that the right wing cynically embraces as part of its base. It doesn’t strike fear in me.

    Kman (d30fc3)

  18. I find it’s helpful when mocking the credentials of others to argue that “everybody’s doing it”.

    Blue Ox (ff919a)

  19. But that’s one of the fear-mongering slippery slope ooga-booga arguments

    Why does the Left constantly dismiss slippery slope arguments until we’re halfway down and speeding up?

    gahrie (9f9756)

  20. Funny, but I think if you asked Tribe, he’d claim opponents of the mandate were the ones pounding the table, for just as you’re convinced the Constitution doesn’t allow the mandate, his side is convinced that it does (and, no, I’m not looking to argue that point).

    steve (369bc6)

  21. I like your articles.
    That said, your sentence here is very confusing –and it wasn’t until I read down several paragraphs that I figured it out: “And when you read John Yoo’s and James Taranto’s take on Tribe’s and (in Taranto’s case) Amar’s recent pieces on the constitutionality of Obamacare you very much get the feeling that this is what they are really doing” Who? Yoo and Taranto or Tribe and Amar?

    John B. (34ba29)

  22. Kman at #17

    A prototypical way of turning a point on its head and wondering why it can’t stand up. No, the Feds do not mandate what you eat, they mandate what a business can sell as food. (Going into ignore Kman mode again).

    For example, Murkowski was able to get a completely different write-in process, compared against every single other write in candidate in Alaskan history. Some of the legal claims were that the law as it plainly appears is just too darn unfair. But what about all the weaker, less corrupt, less wealthy write ins?
    Comment by Dustin

    That is exactly why Congress needs to mandate comprehensive legal insurance. Everybody must pay the same amount into the system, and everybody gets equal benefit from the system. If you want more legal services than you are entitled to, go to Canada or Mexico (but you’ll have to stay there, at least until the US courts recognize lawyers not licensed in the US).

    I will run for Congress and see to it that the Legal Insurance Act is amended onto every bill that comes through. [Of course I will need billions of dollars contributed for my legal staff until the law is passed].

    MD in Philly (3d3f72)

  23. Kman

    > But if you’re asking that the feds mandate what I eat in terms of, you know, planning every meal I have down to the last pea, then of course I have a problem with that.

    > But that’s one of the fear-mongering slippery slope[.]

    Except we are talking about constitutional principles, so in fact pointing out that granting the power to do X also has the effect of granting the power to do Y, is not a slippery slope argument. it is called pointing out the effect of the precedent you are setting.

    So riddle me this. Suppose congress puts a whole bunch of regulations on milk, for instance, requiring the dairy farmers to have contingency plans in case they spill their milk (which is really happening, btw). So the price of milk shoots up and consumption of milk goes down, putting many of those dairy farmers out of business. Then they pass a law requiring every american to buy one gallon of milk a week. Is that law constitutional? And if not, why not?

    Aaron Worthing (e7d72e)

  24. Steve

    i don’t know what tribe would say. but what he was trying to do was obvious, which was use a combination of threats and flattery to get his way. by comparison we on the right have been using argument to win the debate. Which is why we are winning, i suppose.

    Aaron Worthing (e7d72e)

  25. Well, the feds to some extent DO mandate what we may eat by making sure the food we buy is devoid of contaminants, rat feces, etc., as well as making sure that we KNOW what we are actually eating.

    As MD in Philly pointed out, that’s not mandating what we may eat, merely what may be sold. You’re still free to buy off and add your own contaminants, rat feces, etc. The feds can’t prevent you from eating anything you want to put into your mouth and swallow.

    Some chump (4c6c0c)

  26. Why does the Left constantly dismiss slippery slope arguments until we’re halfway down and speeding up?

    I think you have to live a certain number of years to understand. Repeatedly, the slippery slope argument is used by conservatives to shovel out a parade of horribles that will come about as a result of this new law, or that new initiative. After a while, that tactic becomes transparent.

    Read quotes from conservatives back in the early 1960’s about the evils of Medicare. Or go further back to the emancipation of slaves and the viewpoints of the conservative Democrats.

    Kman (d30fc3)

  27. Don’t feed the troll, please.

    Dustin (b54cdc)

  28. Repeatedly, the slippery slope argument is used by conservatives to shovel out a parade of horribles that will come about as a result of this new law, or that new initiative…. [For example] Read quotes from conservatives back in the early 1960′s about the evils of Medicare.

    Yeah!! Nonsense like it was financially unsound and eventually would run out of money!!!

    MD in Philly (3d3f72)

  29. (Now I will attempt to follow Dustin’s advice and Stashiu3’s example, and go get some things done).

    MD in Philly (3d3f72)

  30. Read quotes from conservatives back in the early 1960′s about the evils of Medicare.

    This would be the same Medicare that currently has $36 trillion in unfunded obligations? Silly conservatives.

    Blue Ox (ff919a)

  31. Kman

    so… according to you, a lawyer, precedents don’t matter?

    We can set precedents that grant massive power to the f.g. over our personal lives because, well, trust us, we won’t abuse that power.

    mmm, yeah, its always amazing how out-of-step you are with anything america is about.

    Aaron Worthing (e7d72e)

  32. Suppose congress puts a whole bunch of regulations on milk, for instance, requiring the dairy farmers to have contingency plans in case they spill their milk (which is really happening, btw). So the price of milk shoots up and consumption of milk goes down, putting many of those dairy farmers out of business. Then they pass a law requiring every american to buy one gallon of milk a week. Is that law constitutional? And if not, why not?

    I can’t answer because I don’t understand the goal of such a law. Congress is trying to get full employment for dairy farmers?

    Kman (d30fc3)

  33. so… according to you, a lawyer, precedents don’t matter?

    LEGAL precedents matter.

    But that’s a far cry from saying stupid things like “If gays are allowed to marry, then horses will be able to someday, too” which is what a lot of these slippery slope arguments are about. Those arguments have nothing to do with LEGAL precedents or concepts.

    Kman (d30fc3)

  34. Kman, what is the federal penalty for not purchasing a car?

    Some chump (4c6c0c)

  35. This would be the same Medicare that currently has $36 trillion in unfunded obligations? Silly conservatives.

    I didn’t say Medicare was perfect, but if you listened to conservatives at the time, Medicare meant that we would be living under the yoke of communism by now.

    Hyperbole aside, it didn’t exactly pan out that way.

    Kman (d30fc3)

  36. Kman, what is the federal penalty for not purchasing a car?

    *Facepalm* That was a rhetorical question. You raised it to make a point because the answer (“none”) is obvious.

    And I addressed that point in another thread. Keep up.

    Kman (d30fc3)

  37. Again, kmart conflates regulation with mandate.

    If Congress wanted 100% employment for dairy farmers, they could force people to buy a gallon of milk a week?

    What other things to 85% of the country voluntarily do that kmart thinks the government should be able to force people to do?

    JD (0d2ffc)

  38. So, kmart finally answers. Now, since Congress has the power to regulate the auto industry, and is invested in GM, could they fine people for not purchasing a GM car?

    JD (0d2ffc)

  39. This would be the same Medicare that currently has $36 trillion in unfunded obligations? Silly conservatives.

    I didn’t say Medicare was perfect,…–Kman

    Boy, there is an understatement.

    BT (74cbec)

  40. That’s obviously a rhetorical question JD.

    Blue Ox (ff919a)

  41. guys, he knows he’s lying. He knows the hypo wasn’t rhetorical. He knows his history lesson is completely dishonest.

    He just craves attention.

    You can always tell the desperate trolls by how they tell lies that are easy to disprove, in hopes everyone does so. Kman has nothing to say about Obamacare.

    Dustin (b54cdc)

  42. AW: how can you say you’re winning the debate? While I emotionally am happy to be on the side I am, public sentiment doesn’t matter. If it did, abortion wouldn’t be a right, nor would same sex marriage (it’s on the way). The only score card that matters is at the Supreme Court and they haven’t yet told us how they’re planning on voting.

    And precedents only matter to the extent the Justices wish to use them to justify their voting a certain way. Remember, it is decision first, rationale later. If the precedent backs the decision, cite it. If not, just say it’s not applicable any more.

    steve (369bc6)

  43. *Facepalm* That was a rhetorical question.

    No, it was not a rhetorical question; I really wanted you to answer it. But you’ve dodged it, and the issue behind it for the past day.

    There is a difference between buying health insurance (or pay a penalty for not doing so) and buying a car (for which there is no penalty for not doing so).

    So your analogy is incorrect, is it not?

    Some chump (4c6c0c)

  44. There is a difference between buying health insurance (or pay a penalty for not doing so) and buying a car (for which there is no penalty for not doing so).

    Well, there’s a difference between buying insurance and buying a car in a LOT of ways.

    So your analogy is incorrect, is it not?

    My analogy? You mean about how we are forced to buy seat belts whenever we buy a car, even if we don’t want them?

    No, I think it was a proper analogy. I raised it as support for the point that sometimes, due to government action, we are forced to buy things we might not actually want.

    So being compelled to buy insurance, while admittedly not exactly the same as being compelled to buy seat belts (hence, an “analogy”), isn’t a completely novel concept.

    Kman (d30fc3)

  45. blockquote>My analogy? You mean about how we are forced to buy seat belts whenever we buy a car, even if we don’t want them?

    No, I think it was a proper analogy. I raised it as support for the point that sometimes, due to government action, we are forced to buy things we might not actually want

    You are being deliberately oblique here. The analogy does not hold: you are not forced to buy seatbelts, because you are not forced to buy a car. There’s no penalty for not buying a car. With health insurance, however, there is a penalty for not buying it. Therefore, refusing to buy seatbelts is not the same as refusing to buy health insurance.

    So being compelled to buy insurance, while admittedly not exactly the same as being compelled to buy seat belts (hence, an “analogy”), isn’t a completely novel concept.

    Again, not it’s not the same concept. See above.

    Some chump (4c6c0c)

  46. Kman

    > I can’t answer because I don’t understand the goal of such a law. Congress is trying to get full employment for dairy farmers?

    You know exactly what it is. The same goal you ascribed to the mandate in Obamacare. To mitigate the damage done by idiotic regulation.

    > LEGAL precedents matter.

    Well, what the frick do you think we are talking about here?

    We are asking you about the limits of federal power and how your advocacy of federal power here, if accepted, would grant federal power that you don’t like.

    Aaron Worthing (e7d72e)

  47. Here’s a thought: If Congress really wanted to make us eat our veggies, it could probably do so under the militia power. A healthy population being necessary to the defense of a free state, and all that. Eating an unhealthy diet is a blatant attempt to evade conscription, and therefore treasonous; feeding ones children an unhealthy diet (or letting them become couch potatoes, etc.) is even more so. In Russia people used to deliberately injure themselves and their sons in order to evade conscription, so the allegation is not just some paranoid fantasy.

    Ditto for mandatory exercise, sports, etc. Just like in pre-War Germany. You will do your yoga, or be taken away for re-education. Tell me why this would not be constitutional.

    Milhouse (ea66e3)

  48. I’ll put a finer point on it:

    Buying seatbelts as mandatory equipment in a car would be analgous to buying maternity care as a mandatory part of health insurance. But you don’t have to buy a car, just as you shouldn’t have to buy health insurance.

    Your analogy of “buying a as part of b is the same as being forced to buy c” doesn’t hold.

    Some chump (4c6c0c)

  49. Some chump:

    The analogy does not hold: you are not forced to buy seatbelts, because you are not forced to buy a car. There’s no penalty for not buying a car. With health insurance, however, there is a penalty for not buying it. Therefore, refusing to buy seatbelts is not the same as refusing to buy health insurance.

    Yes, I understand the distinction. There are, as I said, MANY difference between buying a car and buying insurance. However, WHEN you buy a car, you are compelled to buy seat belts, like it or not, thanks entirely to government regulation. And that’s the only point I was trying to make.

    If you don’t get the analogy, you don’t get it. That’s okay.

    AW:

    The same goal you ascribed to the mandate in Obamacare. To mitigate the damage done by idiotic regulation.

    That’s the goal YOU ascribe to the mandate, based on a false characterization of what the mandate it. You pretend that the mandate was tacked on AFTERWARDS, as if to fix some flaw in an already-existing law. It’s not. It’s one piece of a complex mechanism, all of which are needed to make the thing work.

    We are asking you about the limits of federal power and how your advocacy of federal power here, if accepted, would grant federal power that you don’t like.

    That’s a political inquiry, not a legal one.

    That said, you’re still engaging in childlike slippery slope arguments. It’s all over this website. “If Kman believes that the federal government can do X, then he MUST also believe that it can do Y and Z”. It makes me laugh because there are often ways to distinguish Y and Z, particularly if they are inherently unconstitutional in and of themselves AND ALSO are not reasonably related to some constitutional permissible exercise of congressional power. There ARE, as I have constantly said, tests of reasonableness, as well as rational relationships to goals.

    Put another way, I DO believe there are limits on federal power. But the N&P Clause is expansive, and the mandate falls within it. But saying that does not mean that “anything goes”.

    Kman (d30fc3)

  50. Actually, you’re not required to buy seat belts, the manufacturer is required to include them. A bit of a difference. While not completely analogous, you’re not required to buy health insurance for X or Y, health insurers are required to provide coverage of those services.

    steve (369bc6)

  51. You really are a truly dishonest disingenuous twatwaffle, kmart, the sophistry you exhibit is breath-taking in its audacity.

    JD (b98cae)

  52. Lol. Gotta love the “other than the draft” in parentheses. It’s perfectly okay for the government to drag your ass go to some far-off land and perhaps get killed, but to mandate the buying health insurance (which 85% of us do voluntarily anyway)? THAT’S an affront to personal liberty.

    Comment by Kman — 2/9/2011 @ 8:47 am

    Uh…are you making the case that because the draft is constitutional, mandatory purchase of health insurance should be deemed so also? Just because?

    Yeah, Kman. You’re just saturated in (snicker) credibility about the subject.

    LNSmithee (62f0ca)

  53. In kmart’s world, after the unicorns fart fairy dust, so long as something can fit in the commerce clause, given a reading so as to allow nearly anything, any constitutional end would justify any unconstitutional means of acheiving that end, or fixing other flawed means.

    JD (b98cae)

  54. Yes, I understand the distinction. There are, as I said, MANY difference between buying a car and buying insurance. However, WHEN you buy a car, you are compelled to buy seat belts, like it or not, thanks entirely to government regulation. And that’s the only point I was trying to make.

    But your point is inapt because you are not required to buy a car.

    Your analogy decomposes to this:

    “If you buy A then you must buy B” is equivalent to “You must buy C”

    Do you not see how this is not a valid comparison? Buying B is predicated on buying A, but buying C is mandatory regardless of anything else.

    You don’t seem to understand your own point.

    Some chump (4c6c0c)

  55. You pretend that the mandate was tacked on AFTERWARDS, as if to fix some flaw in an already-existing law. It’s not. It’s one piece of a complex mechanism, all of which are needed to make the thing work.

    Comment by Kman — 2/9/2011 @ 11:53 am

    In the case of the mandate, its “piece of [the] complex mechanism” is pretty simple: It’s the engine. In the words of Jonathan Turley in USA Today:

    The Justice Department undermined its own case by repeatedly warning Vinson in court that if he struck down the individual mandate, the law would be fundamentally crippled. Without the mandate (and young healthy people forced to buy insurance), the plan is fatally underfunded. It appeared to the court that the administration was arguing that it was an “all-or-nothing” proposition. Vinson’s ruling: Nothing it is.

    LNSmithee (62f0ca)

  56. Kman

    > That’s the goal YOU ascribe to the mandate, based on a false characterization of what the mandate it.

    You know, let me correct myself. You didn’t ascribe that to the mandate. But the government did. Which you would know if you read ANY OF THE CASES.

    You, had an even dumber idea, which was that congress could pass the mandate purely to promote health care coverage. Your exact words:

    > One of the goals — in fact, probably the primary goal — of the Affordable Care Act is to increase the number of Americans with health care coverage.

    > The mandate is “plainly adapted” to that goal. It is “rationally related” to the implementation of that goal.

    http://patterico.com/2011/02/01/scattered-news-reactions-and-rebuttals-in-the-discussion-of-vinson%e2%80%99s-ruling/#comment-750838

    So let’s try either goal. Sebelius’ proffered goal, and kman’s goal. So we all have to buy milk 1) to mitigate the damage of other regulation and 2) to make people drink more milk, for its own sake.

    So does that make my theoretical law requiring people to buy a gallon of milk every week constitutional? Yes or no?

    > It makes me laugh because there are often ways to distinguish Y and Z

    Good, THEN DO IT. but stop dodging.

    > Lol. Gotta love the “other than the draft” in parentheses.

    So you want to repeal the 13th amendment, is that it?

    Aaron Worthing (e7d72e)

  57. LN

    turley is right. its possible to have threaded that needle, but you are running a serious risk that you won’t succeed in doing so.

    Aaron Worthing (e7d72e)

  58. Chump:

    But your point is inapt because you are not required to buy a car.

    But you ARE required to buy seat belts when you buy a car (i.e., you don’t have a choice in the matter).

    In other words, if you are someone who has purchased a car in your lifetime, the government has ALREADY compelled you to pay for something which (theoretically at least) you didn’t want.

    So these cries of “affrontery to my freedom” sound a little hollow.

    THAT is my point.

    AW:

    So we all have to buy milk 1) to mitigate the damage of other regulation and 2) to make people drink more milk, for its own sake.

    Once again, the individual mandate isn’t there to mitigate the damage of “other regulation”. It’s part of a larger regulatory scheme. There is no damage to mitigate.

    And the mandate isn’t there for its own sake either.

    Turley is right; your spin ain’t.

    Kman (d30fc3)

  59. Kman

    once again, you are reduced to lying.

    > Once again, the individual mandate isn’t there to mitigate the damage of “other regulation”.

    That’s not what Sebelius said. From the opinion, which you either didn’t read or lied about:

    > In the Secretary’s view, the key elements of health care reform are coverage of those with preexisting conditions and prevention of discriminatory premiums on the basis of medical history. These features, the Secretary maintains, will have a material effect on the health insurance underwriting process, and inevitably, the cost of insurance coverage. Therefore, without full market participation, the financial foundation supporting the health care system will fail, in effect causing the entire health care regime to “implode.” Unless everyone is required by law to purchase health insurance, or pay a penalty, the revenue base will be insufficient to underwrite the costs of insuring individuals presently considered as high risk or uninsurable. Therefore, under the Secretary’s reasoning, since Congress has the power under the Commerce Clause to reform the interstate health insurance market, it also possesses, under the Necessary and Proper Clause, the power to make the regulation effective by enacting the Minimum Essential Coverage Provision.

    Maybe its not YOUR view, but it is the official position of the government, maintained now through 4 separate cases.

    > And the mandate isn’t there for its own sake either.

    Well, I just quoted you saying that the mandate can be justified to increase health coverage. So you can force coverage to increase coverage, according to you. So the mandate is, according to, justified for its own sake.

    > Turley is right; your spin ain’t.

    Except Turley agrees with me that this was the government’s position:

    > Without the mandate (and young healthy people forced to buy insurance), the plan is fatally underfunded.

    So you either didn’t read Turley’s column, or you lied about what it contained. And if you didn’t read it, then you lied when you pretended you did.

    And either you didn’t read Vinson’s opinion, or you lied about what it contained. And if you didn’t read it, then you lied when you pretended you did.

    And you lied about your own argument, even after I quoted it to you.

    And all this is to distract from the horns of a dilemma I put you on. You don’t want to admit that if Obamacare is upheld, that if the constitution can be stretched that far, then congress can also force you to buy milk. Because either you would have to admit 1) that congress’s power doesn’t go that far or 2) reduce yourself to the absurdity of saying, sure the government can make me buy milk.

    Just like Elena Kagan said the government can force people to eat their vegetables.

    Aaron Worthing (e7d72e)

  60. If you have had a little freedom taken from you, you cannot object when the leftist try to take a lot from you. Plus, 85% of people buy it voluntarily, so there is that. And, it will make you feel good. That is about the extent of the kmart leftist position.

    There is no damage to mitigate? Except for the funding mechanism. Good Allah.

    JD (6e25b4)

  61. kman

    seriously, its not there to mitigate damage?

    you haven’t heard the Sebelius’ representations say over and over again the insurance industry would implode?

    Aaron Worthing (e7d72e)

  62. > Once again, the individual mandate isn’t there to mitigate the damage of “other regulation”.

    > That’s not what Sebelius said

    Sebelius never talked about mitigating DAMAGE from OTHER regulation. There’s no “damage”; there’s no “other regulation”. It’s all part of a comprehensive bill.

    To say that the mandate is there to mitigate damage from something else is like saying, “The spring in my watch is there to mitigate the damage from this other thing — my watch.”

    But it simply is not that way. The Affordable Care Act does not work without the individual mandate. LNSMithee suggests above that it serves as “the engine”, which isn’t a bad analogy. You need it in order to make the Affordable Care Act effective.

    And I know that YOU need to make it as some ancillary tack-on. Because that way, you can argue that it’s not necessary and proper.

    And all this is to distract from the horns of a dilemma I put you on. You don’t want to admit that if Obamacare is upheld, that if the constitution can be stretched that far, then congress can also force you to buy milk. Because either you would have to admit 1) that congress’s power doesn’t go that far or 2) reduce yourself to the absurdity of saying, sure the government can make me buy milk.

    Kman (d30fc3)

  63. And all this is to distract from the horns of a dilemma I put you on. You don’t want to admit that if Obamacare is upheld, that if the constitution can be stretched that far, then congress can also force you to buy milk. Because either you would have to admit 1) that congress’s power doesn’t go that far or 2) reduce yourself to the absurdity of saying, sure the government can make me buy milk.

    I don’t KNOW if Congress can force us to buy milk. As I repeatedly have said, it DEPENDS on the what-for.

    Congress MIGHT be able to, but I can’t envision under what circumstances that would be constitutionally permissible. You haven’t given me a scenario where the government CAN constitutionally do that, so until you do, my answer is that they can’t.

    Kman (d30fc3)

  64. Kmart is just reasserting the same crap over and over and over. It flits around, dropping turdlets, and advocating that a constitutional end can be achieved by unconstitutional means, even though the relevant passage says that the means must adhere to the letter and the spirit of the constitution. Basically, kmart is a sophist. A political hack, trying to hide his political argument behind the veneer of a legal argument. In its world, the Fed government would have virtually unlimited power.

    JD (6e25b4)

  65. Dance monkey dance!

    daleyrocks (479a30)

  66. Kman

    > Sebelius never talked about mitigating DAMAGE from OTHER regulation. There’s no “damage”; there’s no “other regulation”. It’s all part of a comprehensive bill

    Lol, that is what you are going to hang your hat on?

    Bull, and we all know it is bull. And a cheap distraction.

    > The Affordable Care Act does not work without the individual mandate.

    Yes, because it will financially ruin the insurance industry unless the mandate is there to mitigate the damage.

    > You need it in order to make the Affordable Care Act effective.

    Back to that again. Except the affordable care act is plenty effective without the mandate. It would effectively drive the health insurance industry into oblivion.

    > And I know that YOU need to make it as some ancillary tack-on

    When have I ever said or implied it was an ancillary tack on. in fact my entire argument about severability is that it is such a bad idea to pass the law without the mandate or something performing the same function that we should presume congress would not have passed it without the mandate.

    What I have said is that while it is NECESSARY to balance the books, it is not NECESSARY to carry any congressional power into EXECUTION which is what the constitution requires. And I have said that repeatedly. And you know that. you simply deny the vitality of my analysis. So now you are just lying about what I said.

    > I don’t KNOW if Congress can force us to buy milk. As I repeatedly have said, it DEPENDS on the what-for.

    Well, then what, if any, “what for” do you require to justify forcing people to buy milk?

    > . You haven’t given me a scenario where the government CAN constitutionally do that, so until you do, my answer is that they can’t.

    Well, I gave you one precisely like your theory of obamacare and one exactly like Sebelius’ theory. That is to increase milk consumption (your stupid theory), or to mitigate the harm to the dairy industry’s profitability because of regulation (Sebelius’ less stupid theory). The only reason why you continue not to answer is because you know the answer is devastating to your cause.

    Now, i have officially had it with you and your lying. Your next answer will be honest, or it will be removed. you will not sit here and lie about 1) what sebelius said, 2) what turley said, 3) what you said and 4) what i said, and stay here. and you can take up your appeal with patrick if you don’t like it.

    But in my experience Patrick doesn’t like it when someone lies about what he said, either.

    Aaron Worthing (e7d72e)

  67. But you ARE required to buy seat belts when you buy a car (i.e., you don’t have a choice in the matter).

    You are being deliberately oblique again.

    Let me walk you through it one more time:

    1. Being forced to buy seatbelts as part of your car is like being forced to buy maternity care as part of your health insurance. One is part of another, but you have the option of not buying the whole in both cases.

    2. Being forced to buy seatbelts as part of your car is not like being forced to buy health insurance. In the first, you have the option of not buying anything at all, but in the second, you do not have that option.

    3. Being subject to a fine or penalty for not acting is the same as being forced to act.

    Your analogy is not correct, because it does not compare similar situations. You are obstinately refusing to admit that the parallelism does not exist, so you are either a blithering idiot, or you are intellectually dishonest…and there really is no middle ground.

    I would agree that Congress has the power to mandate that all health insurance include maternity care, but not that Congress has the power to mandate purchasing health insurance.

    Some chump (4c6c0c)

  68. some

    > Being subject to a fine or penalty for not acting is the same as being forced to act.

    Ah, we should take him at his word, then. So its unconstitutional in lawrence v. texas to ban gay sex. so will just put in a $10,000 penalty per night for gay lovers. all constitutional, right? because after all, they are not being prohibited from gay sex, by kman’s logic, right?

    And how about a $50,000 per abortion fee?

    Aaron Worthing (e7d72e)

  69. Except the affordable care act is plenty effective without the mandate. It would effectively drive the health insurance industry into oblivion.

    I know you juxtoposed those two sentences to make a (little) joke, but you are in fact conceding my point. You can’t have an effective Affordable Care Act without the mandate.

    What I have said is that while it is NECESSARY to balance the books, it is not NECESSARY to carry any congressional power into EXECUTION…

    But you just admitted that the mandate is needed to prevent the health care industry from being “driven into oblivion”, so how can you honestly argue that it is NECESSARY to “balance the books”?

    The mandate is NECESSARY to keep the health insurance industry afloat, and since you can’t effectuate the Affordable Care Act without a health insurance industry, the mandate is NECESSARY to the execution of the ACA.

    It’s like a car with several vital parts, all of which are necessary for a car to, you know, BECOME an actual functioning car. If the Affordable Care Act were a car, the mandate would be a necessary part of it – say, the engine. Otherwise, it don’t work.

    We’ve been over this.

    > I don’t KNOW if Congress can force us to buy milk. As I repeatedly have said, it DEPENDS on the what-for.

    > Well, then what, if any, “what for” do you require to justify forcing people to buy milk?

    I can’t think of any.

    The only reason why you continue not to answer is because you know the answer is devastating to your cause.

    It’s not devastating to my “cause”. I’m saying that I can’t think of piece of legislation in which buying milk would be a vital necessary component. Which isn’t the case with the individual mandate.

    Kman (d30fc3)

  70. Your analogy is not correct, because it does not compare similar situations.

    Chump: I swear to you, I get it. PLEASE don’t waste more of your time trying to explain.

    It’s an analogy. And it similar enough for the proposition that I am rebutting, i.e., that it is a complete “novelty” and that the federal government never makes a person purchase things against their will.

    I am saying that Congress has, to some extent, already done things that compel many of us to effectively purchase things we don’t want, and they have done so constitutionally. It was a simple (and I don’t think terribly controversial) point.

    Kman (d30fc3)

  71. #67

    in which Kman confuses regulations relating to a product to requiring you to buy a product.

    The CBO said it in 1994. The mandate is unprecedented.

    but on the other hand, it is nice for once for a liberal to figure out that regulations increase the costs for consumers. imagine if you really thought that principle through and realized all of the implications of that fact.

    Aaron Worthing (e7d72e)

  72. I am saying that Congress has, to some extent, already done things that compel many of us to effectively purchase things we don’t want, and they have done so constitutionally.

    That has to be some sort of record for weasel words in one sentence.

    Kman, you have yet to cite one example of the federal government forcing us to make a purchase against our will without adding qualifiers, i.e. a regulatory requirement added to what is a voluntary transaction. Not one. It really shouldn’t be that hard if it’s not a “novelty”.

    Blue Ox (ff919a)

  73. AW – kmart has conflates regulation to mean the ability to force to purchase from the outset. If it were honest, and discussing in good faith, it would acknowledge that it’s own construct would allow the government to force the purchase of any item it can regulate.

    JD (d4bbf1)

  74. That’s what she said.

    Dustin (b54cdc)

  75. It’s an analogy. And it similar enough for the proposition that I am rebutting, i.e., that it is a complete “novelty” and that the federal government never makes a person purchase things against their will.

    Once again: your analogy is not correct, because it does not compare parallel things.

    Congress can compel you to purchase something AS A PART of something you buy, and yet leave you the option of not buying anything at all. But Congress cannot compel you to buy something when you’d rather buy nothing at all.

    THAT’S the difference between seatbelts and health insurance, and THAT is why your analogy doesn’t hold water. Congress has never before compelled people to purchase ANYTHING or face a fine for not doing so. THAT is the “novelty” of ObamaCare, and that is why it is unconstitutional.

    The fact that you won’t admit it shows everyone here the depth of your dishonesty.

    Some chump (4c6c0c)

  76. Given time, kmart will get dizzy from all of it’s spinning, puke, then pass out.

    JD (d4bbf1)


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