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Kuros
Joined: 27 Apr 2004
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 Posted: Thu Jul 05, 2012 6:30 pm Post subject: Obamacare doesn't meaningfully threaten Liberty |
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Liberty matters. But Obamacare doesn't matter too much to Liberty one way or the other.
Lefty-Libertarians Conor Friedersdorf and Will Wilkinson take the rhetoric down a notch.
The Individual Mandate Isn't Even Close to the Biggest Threat to Liberty
| Conor Friedersdorf wrote: |
Since the Supreme Court ruling on President Obama's health-care law, several right-leaning acquaintances have told me that they can't bring themselves to be particularly upset by the outcome. As one put it, "God knows I wouldn't have tried to reform medicine by passing Obamacare. I'd love to see strict limits on the Commerce Clause too. But it baffles me that so many people treat the individual mandate as if it's the biggest threat to liberty that Americans face."
My correspondent is right.
Health care is hugely important. If Mitt Romney took office and wanted to replace Obamacare with the package of reforms laid out in "How American Health Care Killed My Father," I'd support him, for I have little faith in the recent reforms. But treating the individual mandate as a particularly dire affront to liberty and elevating its repeal to priority number one in a Romney Administration?
Why would anyone who cares about liberty want that?
. . .
To be sure, I am against a broccoli mandate, an electric-car imperative, a kale ultimatum, or a solar-panel decree. But I can't help noticing that even these bad things, supposedly made more likely in a post-mandate world, are (1) not exactly the stuff of dystopian literature; (2) less alarming to me than other things government definitely has the power to do, like raise my tax rate by 10 percent; (3) much less destructive of liberty than lots of things that government already does!
It's that last point I want to emphasize.
If you're the type that worries about precedent-setting behavior and its slippery-slope implications, note that we've effectively empowered the president of the United States to wage war without Congressional approval, kill American citizens without due process, indefinitely detain prisoners without charges or trial, and secretly spy on everything from our telephone calls to our email messages in massive data-mining efforts. Alternatively, if you're the sort who self-identifies as a cynical critic of unchecked government except on matters of national security, where you slavishly and ahistorically trust that the president won't abuse the extraordinary power you want to give him -- let's be honest, there are a lot of you in America -- then consider some of the domestic affronts to liberty that are everyday parts of life in the United States:
* Though more than 40 percent of Americans, including our past three presidents, have tried marijuana, we continue to arrest and confine in metal cages a certain subset of people caught possessing the drug, though it causes less harm to others than legal substances like alcohol.
* Merely being suspected of drug possession is enough to get your door broken down by a battering ram.
* Police departments nationwide practice asset forfeiture, a civil procedure in which they can take your property if they suspect it was used in the commission of a crime, and you can't have it back unless you prove to them that it isn't so. (I know that sounds unbelievable, but it's true.) |
It doesn't mean anything yet
| Will Wilkinson wrote: |
[T]here's no fact of the matter about the implications of the Obamacare decision. Many conservatives tend to get fixated on the fantasy that the constitution has a determinate meaning and that constitutional questions therefore have determinate answers. In fact, the fetish for determinacy is so strong that sometimes conservatives become confused by it. In one breath they denounce the courts' activist misinterpretation of the constitution's plain meaning, and then, in the next, lament that henceforth judges will be forever and inescapably bound by the plain implications of the precedent they have just created. But if the judges are the exegetical libertines conservatives say they are, why not predict that they'll simply make of their latest decision what they choose to make of it? Duh.
Jim Antle of the American Conservative worries that "if the Constitution has no meaning apart from what the judges say it means, we have no written Constitution". Of course the constitution has meaning apart from what the judges say. Actually, it has lots of meanings apart from what the judges say. Too many meanings. Thankfully, the conflict inherent in the multiplicity of private reason is overcome by the fact that a majority of Supreme Court justices alone ultimately determines whether legislation passes constitutional muster. Yet the supple minds of Supreme Court justices move like quicksilver.
Perhaps the most surprising thing about the Obamacare case was the speed with which the conservative wing of the court converged on a libertarian reading of the commerce clause, which, prior to the oral arguments, most experienced court-watchers believed to be nutty. This took liberals by surprise and had a lot of them rather down in the mouth last Wednesday. That a majority of the court, chief justice included, affirmed this formerly nutty libertarian interpretation of the commerce clause might mean nothing. Mr Roberts's comments on the matter might be mere, non-binding "dicta". But it won't matter a whit that, as Mr Fishkin says, "there is a strong case that it is all dicta", if the same court majority is determined to build something on its foundations. I don't know they won't.
. . .
All of which is to say that the long-term consequence of last week's big decision cannot be even roughly divined from an attentive reading of the text. The party of next year's president means rather more than these mere words can say. |
The 5 Most Unlibertarian Supreme Court Rulings Still Standing
Obamacare isn't close to making the top 5, and it probably wouldn't even make a top 10. |
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comm
Joined: 22 Jun 2010
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| Posted: Thu Jul 05, 2012 8:31 pm Post subject: Re: Obamacare doesn't meaningfully threaten Liberty |
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| Kuros wrote: |
| Conor Friedersdorf wrote: |
| If you're the type that worries about precedent-setting behavior and its slippery-slope implications, note that we've effectively empowered the president of the United States to wage war without Congressional approval, kill American citizens without due process, indefinitely detain prisoners without charges or trial, and secretly spy on everything from our telephone calls to our email messages in massive data-mining efforts. |
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I would agree that most of those are greater infringements than the AFA. However, the expansion of government power is more than the sum of its parts. And there's a political party that isn't OK with this particular infringement, whereas the RNC/DNC-two-headed-beast is just fine with all of those above (leaving me profoundly disappointed by the hypocrisy American liberals, I should add).
I'll continue to speak out against the continual expansion of power of the American Federal government and the Executive. And the American people will continue to elect leaders which expand it, holding their tongues so long as the guy on "their team" is in charge. |
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yodanole
Joined: 02 Mar 2003
Location: La Florida
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Titus
Joined: 19 May 2012
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| Posted: Fri Jul 06, 2012 7:30 pm Post subject: |
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| Quote: |
| Many conservatives tend to get fixated on the fantasy that the constitution has a determinate meaning and that constitutional questions therefore have determinate answers. In fact, the fetish for determinacy is so strong that sometimes conservatives become confused by it. |
The Constitution vs constitution. Conservatives don't become confused by it. They've bought the BS. They think the law is the law. I do not believe Jefferson and the rest would have imagined the federal government forcing the whole population to purchase a totally flawed product.
The whole thing is a give away to the medical industry. They wrote it and they'll benefit from it.
Regarding liberty, the demographic shift to a less self-sustaining population will ensure economic liberty is slowly removed. California is the future! Single party rule and the massive underclass + public sector voting themselves Orange County's(but not Beverly Hills) money. Extrapolate nationally and the future is lame. |
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yodanole
Joined: 02 Mar 2003
Location: La Florida
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Kuros
Joined: 27 Apr 2004
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| Posted: Fri Jul 06, 2012 7:58 pm Post subject: |
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| Titus wrote: |
| Quote: |
| Many conservatives tend to get fixated on the fantasy that the constitution has a determinate meaning and that constitutional questions therefore have determinate answers. In fact, the fetish for determinacy is so strong that sometimes conservatives become confused by it. |
The Constitution vs constitution. Conservatives don't become confused by it. They've bought the BS. They think the law is the law. I do not believe Jefferson and the rest would have imagined the federal government forcing the whole population to purchase a totally flawed product. |
There's no real mandate. The Federal gov't can't force anyone to purchase anything. Read the opinion.
| Chief Justice Roberts wrote: |
Given its expansive scope, it is no surprise that Congress has employed the commerce power in a wide variety of ways to address the pressing needs of the time. But Congress has never attempted to rely on that power to compel individuals not engaged in commerce to purchase an unwanted product.
The Constitution grants Congress the power to "regulate Commerce." Art. I, � 8, cl. 3 (emphasis added). The power to regulate commerce presupposes the existence of commercial activity to be regulated. If the power to "regulate" something included the power to create it, many of the provisions in the Constitution would be superfluous. For example, the Constitution gives Congress the power to "coin Money," in addition to the power to "regulate the Value thereof." Id., cl. 5. And it gives Congress the power [*19] to "raise and support Armies" and to "provide and maintain a Navy," in addition to the power to "make Rules for the Government and Regulation of the land and naval Forces." Id., cls. 12-14. If the power to regulate the armed forces or the value of money included the power to bring the subject of the regulation into existence, the specific grant of such powers would have been unnecessary. The language of the Constitution reflects the natural understanding that the power to regulate assumes there is already something to be regulated.
Our precedent also reflects this understanding. As expansive as our cases construing the scope of the commerce power have been, they all have one thing in common: They uniformly describe the power as reaching "activity." It is nearly impossible to avoid the word when quoting them.
The individual mandate, however, does not regulate existing commercial activity. It instead compels individuals to become active in commerce by purchasing a product, on the ground that their failure to do so affects interstate commerce. Construing the Commerce Clause to permit Congress to regulate individuals precisely because they are doing nothing would open a new and potentially vast domain to congressional authority.
People, for reasons of their own, often fail to do things that would be good for them or good for society. Those failures�joined with the similar failures of others�can readily have a substantial effect on interstate commerce. Under the Government's logic, that authorizes Congress to use its commerce power to compel citizens to act as the Government would have them act.
That is not the country the Framers of our Constitution envisioned. James Madison explained that the Commerce Clause was "an addition which few oppose and from which no apprehensions are entertained." While Congress's authority under the Commerce Clause has of course expanded with the growth of the national economy, our cases have "always recognized that the power to regulate commerce, though broad indeed, has limits." The Government's theory would erode those limits, permitting Congress to reach beyond the natural extent of its authority, "everywhere extending the sphere of its activity and drawing all power into its impetuous vortex." Congress already enjoys vast power to regulate much of what we do. Accepting the Government's theory would give Congress the same license to regulate what we do not do, fundamentally changing the relation between the citizen and the Federal [*24] government.
(internal citations omitted, except for citations to the Constitution itself) |
Roberts and four justices appropriately denied Congress the power to compel or create commerce.
But the individual 'mandate' functions as a modest tax.
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| Those without coverage pay a tax penalty of the greater of $695 per year up to a maximum of three times that amount ($2,085) per family or 2.5% of household income. |
Its basically an inverted health insurance tax credit. If Congress had raised taxes $2,085 for those earning $83,400 or more, ironed it out along the progressive tax scale, and then provided a credit for the same amount that rebated the purchase of healthcare insurance, it would have the same effect. Such a bill would be undeniably constitutional under Congress's broad powers to tax, and specifically pursuant to the Tax for the General Welfare Clause. |
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comm
Joined: 22 Jun 2010
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| Posted: Sat Jul 07, 2012 3:18 am Post subject: |
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| Kuros wrote: |
| Its basically an inverted health insurance tax credit. If Congress had raised taxes $2,085 for those earning $83,400 or more, ironed it out along the progressive tax scale, and then provided a credit for the same amount that rebated the purchase of healthcare insurance, it would have the same effect. Such a bill would be undeniably constitutional under Congress's broad powers to tax, and specifically pursuant to the Tax for the General Welfare Clause. |
Then lets hope it's not too late to take this anger toward being forced to buy health insurance (read as "given economic incentives to do so" if you want) and use it to limit or eliminate preferential treatment through taxation/rebates/handouts of all kinds in the future.
Don't get me wrong here. I'd love to see State-established single-payer public healthcare. I'd even be OK with a Constitutional amendment which would allow this at the national level. But taxes are for funding the government, not for incentivizing/deincentivizing behavior that politicians like. |
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Titus
Joined: 19 May 2012
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| Posted: Sat Jul 07, 2012 5:26 am Post subject: |
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| But the individual 'mandate' functions as a modest tax. |
The mandate has become a tax not because the essence of it has changed, but because the marketing changed. |
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Kuros
Joined: 27 Apr 2004
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| Posted: Sat Jul 07, 2012 4:33 pm Post subject: |
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| Titus wrote: |
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| But the individual 'mandate' functions as a modest tax. |
The mandate has become a tax not because the essence of it has changed, but because the marketing changed. |
Yes, well, I can't imagine they're going to make it unconstitutional for politicians to lie . . . |
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