Three years: in memory of FredHJr

The New Neo Posted on by

This post probably won’t mean much to newcomers to this blog. But I bet most of the oldtimers remember, and still acutely miss FredHJr, one of the most memorable and prolific commenters here. It hardly seems possible that three years have passed since his tragic and untimely death on June 26, 2009. The loss to this community has been a great one; we could sorely use a large dose of his wit and wisdom.

The loss his family feels is far greater, and I am thinking of them this week and hoping they have found comfort in the memory of his love and faith.

And now I will reprise some words I wrote when I first heard of Fred’s death:

Even though none of us actually met Fred in the real world, most of the regulars here knew FredHjr as I knew him””a brilliant mind containing knowledge of unusual depth and breadth, and demonstrating a rare ability to articulate his thoughts with precision, grace, and logic; a staunch patriot and passionate defender of liberty who never pulled his punches; a “changer” who had been a Marxist in his youth and held a vast storehouse of expertise on how the Left thinks and operates; a seeker of truth with an almost inexhaustible interest in the world around him; and a man of strong religious faith and great and abiding love for his family.

The news of his extremely untimely and tragic death comes as a great shock. It’s also a reminder that people here can become an important part of our lives; we feel as though we know them, even though our knowledge of them is only of the virtual sort. But minds meeting minds is a very powerful thing nonetheless.

[NOTE: Here is Fred’s obituary.]

[ADDENDUM: I was thinking it might be interesting to look back at some of Fred’s comments and post an appropriately prescient one here. I offer (rather quickly located) this one from June 20, 2009:

Obama is not at all interested in slowing down and building from a solid base. As for fixing Medicare, neither he nor his bureaucratic apparatchiks and czars are true tinkerers.

He is a man in a hurry. Nancy Pelosi is in a hurry. That should give people a clue as to what the people in power right now are thinking. If you are not asking yourself “why the hurry?” then you are not thinking this through to the logical, probable motives.

I think Soros and the oligarchs are in a hurry too.

All of these actors know something about the likely reaction to this program combined with a context of a failing economy: it means the Dems are in trouble in 2010 and beyond.

Obama is not a details man, therefore he couldn’t be bothered with trying to convince anyone that a fixed Medicare program would possibly mean the model could be applied to the wider society. He’s in a hurry because he’s a man on a mission to implement change before the opportunity is lost.]

Scientists may be a little strange…

The New Neo Posted on by

…but rats are more like people than you might think:

Now may be as good a time as any to say that I am puzzled by people (or rats, for that matter) who like to be tickled. When I was growing up with an older brother, tickling was a reliable form of torture, and I was the torturee. The laughter that ensued was not happy-laughter.

But the rats appear to seek it out. Are they actually masochists?

[Hat tip: Althouse.]

More reflections on SCOTUS and Obamacare and the future

The New Neo Posted on by

After all the brouhaha, I’ve come to the conclusion that, although I would have liked to have seen Obamacare overruled Thursday, fussing about the details of Commerce Clause vs. tax power isn’t really the point, although it’s legally interesting and Justice Roberts’s convoluted reasoning for doing what he did is rather mind-boggling and almost frightening in its pretzel-like gymnastics.

So, what is the point? The 2012 election, for the simple reason that whoever becomes president will determine the future of the Court for a long long time to come. And the Court has a lot of clout.

If Obama is elected, and gets to appoint his picks, you better believe that both the Commerce Clause and the taxing power and everything else that increases the reach of government will expand. Under Obama, any liberal justice who might be old and/or sick will feel free to retire and have some younger version of him/herself appointed. The conservative justices will just have to hang on and take really good care of themselves, including “ranting old man” Scalia, who’s 76 and not really that old in SCOTUS-years (which are sort of like the opposite of dog years).

If Romney is elected, the same would be true but with the parties reversed.

And yes, I’m familiar with frequent assertions by conservatives that Romney is so unconservative that he’ll appoint squishes who will turn, like Roberts. They often point to Romney’s record of judicial choices in Massachusetts, but they forget the fact that Romney was working in an ultra-liberal state. Things will almost certainly be different when he is president—although I also understand that unless the most staunchly conservative judges are appointed, there’s always the possibility of a Souter-like (or now we can add Roberts-like) “change” experience.

[NOTE: Those interested in learning more about Romney’s actual record in picking judges in Massachusetts—as opposed to hearing quick soundbites on the matter—would do well to read this article.]

A new meme I’ve noticed today…

The New Neo Posted on by

…among liberals, leftists, and RINO pundits around the MSM and the blogosphere: that there’s no possibility of a repeal of Obamacare in 2012. Even if the Republicans try, they won’t be able to succeed. Or they won’t even try.

The meme’s goal? To dishearten Republicans and conservatives further when they’re already feeling down. It’s psychologically clever, and some are buying into it, especially the Mitt-haters (Mitt is just like Roberts! He’s another RINO traitor!), who had calmed down for a while but now are all revved up, at least on some blogs.

I don’t buy it. I think that more people on the right are fired up by this than are disheartened. But I acknowledge that some are disheartened. And believe me, I hold no special faith in the Republicans in Congress. But I think they are committed to this (partly because it’s popular, and they want to be re-elected). And I think Mitt Romney is as well, and I think he will show some leadership if elected.

[NOTE: There’s also defunding, by the way, as an option, if not enough Republicans are elected (especially in the Senate) in 2012 to completely repeal Obamacare, or even if Obama remains president and yet the Republicans control Congress. Remember defunding? I spent some time on the issue way back when.]

The tax power is now the 800-pound gorilla in the room

The New Neo Posted on by

It can do almost anything it wants to.

Rick Hills, an NYU law professor who appears to specialize in federalism (and does not appear to be a conservative), writes:

I am no friend of the Commerce Clause argument against the individual mandate’s constitutionality…But, in relying on the Taxing power, the Court has failed to offer a coherent purpose-driven reason for the result. It cannot be the case that the feds always can “encourage” people to undertake actions by taxing their inaction: Such a taxing power would render nonsense the basic idea that the enumeration presupposes something not enumerated.

So… what is the limit on the taxing power? Since Kahriger, the usual doctrine has been that the tax must generate revenue. But this test is patently unsatisfactory, because all taxes generate revenue if they are set just below the level at which they would completely prohibit a taxed activity. A tax on same-sex marriages of, say, $1,000 per marriage would presumably generate some revenue — but would it be a constitutional exercise of Congress’ enumerated powers? If so, then the idea of the enumeration is exploded, except as a formalistic obeisance to the text of Article I. Put another way, no sane framer would bother to enumerate powers if the only limit on the federal government’s taxing power is that the tax generate some revenue and that people who wish to avoid the tax can do so through either action or inaction.

So far as I can tell from an initial reading of the 5-vote majority, the Court offers no functional reason whatsoever for its analysis of the taxing power. Indeed, the Court insults our intelligence by describing the conventional analysis of taxation under its prior precedents as somehow “a functional approach” (page 35). Of course, there is nothing “functional” about its definition of the taxing power, if the only relevant factors are the power of a taxed individual to avoid action or inaction that is taxed. If the test is, as Chief Roberts describes it, paying the tax “may often be a reasonable financial decision,” then Congress will have fairly unlimited power to regulate any activity simply by imposing an exaction just short of what it would take to eliminate the activity altogether. If the only other limit is that Congress (or the IRS) cannot “penalize” persons who choose to pay the tax, by stigmatizing them as “outlaws” (page 38), then such a limit is worse than formalistic: It is not even consistent with the precedent (Doremus) upholding the Harrison Narcotics tax.

How is such a taxing power consistent with any sensible notion of enumerating powers? Why would any sane framer, whether Hamilton or Luther Martin, Federalist or Anti-Federalist, ever agree to such an arrangement? The Court does not say.

I’m not a law professor, but my sentiments exactly.

What hath Roberts wrought in his Obamacare decision?

The New Neo Posted on by

I stayed up until the wee hours of the morning reading the SCOTUS Obamacare decision. What I found was so distressing I’m having trouble digesting it; it’s too fibrous and unappetizing a meal. But I’ve already swallowed it; in fact, we’ve all already swallowed it, whether we’re aware of that or not.

I’m probably going to write a longer article about it, but let’s just say for now that I’m also stunned by the depth of the misunderstanding (and/or deliberate misrepresentations, in some cases) about the case around the MSM and the blogosphere, even from the right side. For example, the usually insightful Walter Russell Mead simply doesn’t get it. He writes:

I am not enough of a constitutional scholar to have an opinion worth sharing on the merits of the decision, but in form and execution this was a decision that will reinforce the Court’s position in the country while, so far as I can see, avoiding the possibility of harm based on the faulty constitutional theories that the health care law’s backers put forward.

I’m not enough of a constitutional scholar to be called an expert, but I do know enough about the law that, after reading this decision, I can safely say that Mead is correct in one respect: the possibility of harm based on faulty constitutional theories that the health care law’s backers have put forward has been avoided. Unfortunately—very unfortunately—the possibility of harm based on faulty constitutional theories that the health care law’s backers have NOT put forward* has been tremendously increased.

Jonah Goldberg gets it, and puts it quite succinctly:

The upshot is that Congress cannot use the Commerce Clause to force you to eat broccoli, but it can tax you into doing so. Huzzah for liberty!

To reach this decision, Roberts had to embrace a position denied by the White House, Congress, and vast swaths of the legal punditocracy: that the mandate is a tax for the purposes of constitutional consideration but not a tax according to the Anti-Injunction Act (which bars lawsuits against taxes until after they’re levied). Roberts’s effort, wrote Justice Antonin Scalia in dissent, “carries verbal wizardry too far, deep into the forbidden land of the sophists.”

Roberts accomplished the following: put a limit on the previously infinitely-expanding Commerce Clause with one hand and took away previous limits on the tax power of the federal government. A neat case of sleight of hand, accomplished while nearly everyone seemed to be looking the other way. And it was done with reasoning so tortuous that “sophistry” is a very mild term for it.

I’m not saying this because I’m against the result, although I am against the result. If Roberts had merely joined with Ginsburg and the rest of the liberal wing in saying this came under the Commerce Clause, and used the usual liberal legal arguments contained in their opinion, I would have disagreed but not been so outraged. What he actually did was far stranger and more singular, and quite possibly even more threatening to liberty. He:

(a) found a legal principle no one was arguing (possibly because it doesn’t make much sense)

(b) expressly ignored the will of Congress and re-wrote its law for it

(c) said the penalty was a tax for one purpose but not another

(d) ruled that Congress could do almost anything to compel behavior if it used its taxing power

(e) ruled Congress could do (d) without explicitly using said taxing power and even while explicitly denying it is using said taxing power, so that the people who elect members of Congress cannot know what is happening at the time

There’s probably more, but that’ll do for now.

[ADDENDUM: Randy Barnett notes a limit of sorts on the tax power:

…[W]hile Congress can use its tax powers to incentivize conduct, it will be limited to monetary incentives. Had its Commerce Clause claim been upheld, in the future it could have punished noncompliance with congressional purchase mandates with any penalty””up to and including imprisonment.

Scant comfort.]

*Or have barely put forward

Two, two…two things in one

The New Neo Posted on by

In another comment thread, I wrote:

In order for the Court to have standing to hear the suit””because if it were a tax, it could not be heard until the “tax” kicks in, which I believe wouldn’t be till 2014””the Court had to consider it not a tax, which they did. They determined that for that purpose they would go by what Congress called it. However, for the purpose of deciding on its constitutionality, they would switch hats and call it a tax and therefore constitutional.

Sort of like light is sometimes a particle and sometimes a wave. Except this isn’t physics.

On reflection, though (and with a little nudging from Artfldgr), I think it’s actually more like this:

This is how you get from a mandate to a tax, according to SCOTUS

The New Neo Posted on by

I’ve been wondering what sort of reasoning the Court used to justify calling the mandate a tax, despite the fact that it the people who designed it and passed it explicitly claimed it was not a tax.

Here’s the text of the ruling. From the majority opinion:

“[T]he rule is settled that as between two possible interpretations of a statute, by one of which it would be unconstitutional and by the other valid, our plain duty is to adopt that which will save the Act.” Blodgett v. Holden, 275 U. S. 142, 148 (1927) (concurring opinion).

The most straightforward reading of the mandate is that it commands individuals to purchase insurance. After all, it states that individuals “shall” maintain health insurance. 26 U. S. C. §5000A(a). Congress thought it could enact such a command under the Commerce Clause, and the Government primarily defended the law on that basis. But, for the reasons explained above, the Commerce Clause does not give Congress that power. Under our precedent, it is therefore necessary to ask whether the Government’s alternative reading of the statute””that it only imposes a tax on those without insurance””is a reasonable one.

Under the mandate, if an individual does not maintain health insurance, the only consequence is that he must make an additional payment to the IRS when he pays his taxes. That, according to the Government, means the mandate can be regarded as establishing a condition””not owning health insurance””that triggers a tax””the required payment to the IRS. Under that theory, the mandate is not a legal command to buy insurance. Rather, it makes going without insurance just another thing the Government taxes, like buying gasoline or earning income. And if the mandate is in effect just a tax hike on certain taxpayers who do not have health insurance, it may be within Congress’s constitutional power to tax.

The question is not whether that is the most natural interpretation of the mandate, but only whether it is a “fairly possible” one. Crowell v. Benson, 285 U. S. 22, 62 (1932) . As we have explained, “every reasonable construction must be resorted to, in order to save a statute from unconstitutionality.”…

The exaction the Affordable Care Act imposes on those without health insurance looks like a tax in many respects. The “[s]hared responsibility payment,” as the statute entitles it, is paid into the Treasury by “taxpayer[s]” when they file their tax returns. 26 U. S. C. §5000A(b). It does not apply to individuals who do not pay federal income taxes because their household income is less than the filing threshold in the Internal Revenue Code. §5000A(e)(2). For taxpayers who do owe the payment, its amount is determined by such familiar factors as taxable income, number of dependents, and joint filing status. §§5000A(b)(3), (c)(2), (c)(4). The requirement to pay is found in the Internal Revenue Code and enforced by the IRS, which””as we previously explained””must assess and collect it “in the same manner as taxes.” Supra, at 13”“14. This process yields the essential feature of any tax: it produces at least some revenue for the Government…

That §5000A seeks to shape decisions about whether to buy health insurance does not mean that it cannot be a valid exercise of the taxing power.

In distinguishing penalties from taxes, this Court has explained that “if the concept of penalty means anything, it means punishment for an unlawful act or omission.”…While the individual mandate clearly aims to induce the purchase of health insurance, it need not be read to declare that failing to do so is unlawful. Neither the Act nor any other law attaches negative legal consequences to not buying health insurance, beyond requiring a payment to the IRS.

Federalism’s weird victory

The New Neo Posted on by

Randy Barnett, who has been instrumental in developing the legal arguments against Obamacare, asks a very good question:

Who would have thought that we could win while losing?

The “we” he refers to are those who’ve been arguing—like he has—that the federal government’s attempt to impose an individual mandate is unconstitutional. It must be very hard for Barnett to understand that although he won that battle, and the Court ruled 5-4 that it is unconstitutional, the case challenging Obamacare was lost on other grounds.

I don’t think anyone anticipated that, or at least I haven’t found anyone who did.

And this is a good question, from commenter “gcotharn”:

Obama is taxing economic inactivity.

Isn’t this the first time, in all of American history, in which that has occurred?

Tax fraud

The New Neo Posted on by

I don’t usually listen to talk radio. But today I’ve made an exception, and I think that Rush Limbaugh’s approach makes a lot of sense. His point: Obama passed the biggest tax increase in history and committed fraud on the American people by insisting it wasn’t a tax.

That could be made into a campaign slogan.

[ADDENDUM: Limbaugh also pointed out what I hadn’t gotten around to discussing yet, which is that part of the decision involved the states and Medicaid. The Court ruled that states could opt out of the Medicaid increases required by the Act and not be penalized. This could be significant:

Holding that it would be unconstitutional to terminate existing Medicaid funds to states that refuse to go along with the Medicaid expansion is quite significant, particularly as seven justices joined this result. While the holding here may not go beyond the limits articulated in South Dakota v. Dole, the Supreme Court has not limited the exercise of the spending power to impose conditions on states since the New Deal and, again, seven justices endorsed this result. Going forward, I expect this portion of the opinion to have the greatest practical impact. In fact, I can think of some federal laws, including portions of the Clean Air Act, that are likely to be challenged on these grounds.]