Unforeseen Contingencies

Here's a shot of a range fire outside of Wheatland, Wyoming, taken on 28 June by my friend and fellow adventurer, Jeff Ross. The fire was left unbattled, no fire crews or aerial fire suppression, because all available resources are busy with other fires in Colorado and Wyoming. The situation here in Montana is a bit better -- local fires are mostly coming under control, and the air here isn't smokey for a change. (Click on photo for a larger version.)

Ilya Shapiro of Cato and Volokh Conspiracy dissects Roberts' "constitutional legerdemain"  on SCOTUSblog.  Like me, he finds it makes no sense at all ("13 cryptic pages").  Very worthwhile for his excellent dissection of what sort of "tax" the mandate penalty is, and the implications of Roberts' strange opinion.

Michael Tanner, also of Cato, does a nice job mocking Roberts' tax "logic," and makes two very important points worth repeating here:

What Congress said the individual mandate is — an exercise of the Commerce Power — the court said is not constitutional. But what Congress said the mandate is not — an exercise of the Taxing Power — the court ruled is constitutional. Everybody got that?

This ruling has created two enormous problems for American democracy and the rule of law.
First, Roberts’ flip-flop means the Supreme Court just upheld a law that Congress did not pass and never would have passed. If Congress had called the mandate a tax, the law never would have reached the president’s desk.

Second, the Supreme Court just told Congress it is okay to lie to the people in order to get a bill passed.

As I suggested previously, if the health insurance mandate is a tax, then it raises the issue of why the Supreme Court would have jurisdiction over the case, since the Anti-Injunction Act (AIA) precludes lawsuits against a tax before it has been collected.  I've now read the opinions of Chief Justice Roberts on these matters (as well as the dissent).  What I was able to get out of Roberts' discussion is this: for purposes of the AIA, the mandate is not a tax because Congress called it something else.  For purposes of constitutionality, it's considered a tax, because it is indeed functionally a tax, never mind the labels.

I believe this is an accurate summary of his argument.  Go ahead and try to explain why it really makes any sense.  It strikes me as a rationalization designed to reach a particular desired outcome, rather than a  logical argument that deduces consequences from basic premises.  There's certainly no sense in it that a well-informed citizen can understand, and the difference between such a ruling and a mere arbitrary edict is difficult to see.  Chief Justice Roberts may have given us a civics lesson in the start of his opinion, but his later words seem indistinguishable from bullshit, in the formal philosophical sense:

"For the bullshitter, however, all these bets are off: he is neither on the side of the true nor on the side of the false. His eye is not on the facts at all, as the eyes of the honest man and of the liar are, except insofar as they may be pertinent to his interest in getting away with what he says. He does not care whether the things he says describe reality correctly. He just picks them out, or makes them up, to suit his purpose."  (Prof. Harry Frankfurt)

This is another example of the PPACA as an exercise in utterly non-transparent, arbitrary government -- the rule of men, not law.  Nancy Pelosi's paternalistic gibberish notwithstanding, the act is passed and yet we still don't know what is in it.  We didn't even know until yesterday that the mandate is actually a tax, nor that it is also not a tax.  It will get much worse.Under PPACA, the Secretary of HHS is granted enormous authority to determine policy, e.g. what insurance must cover.  The IPAB also is given power to determine policy, e.g. the finances of Medicare and Medicaid.  Unaccountable power, non-transparent regulations, convoluted law -- this is the PPACA.

Hence an exclusive Unforeseen Contingencies mid-year prediction: There will be more lawsuits over the constitutionality of the PPACA; there's too much in it that is unknown, unaccountable, non-transparent, convoluted, and arbitrary.  Don't be surprised if SCOTUS sees further PPACA action.

Just as a reminder of how arrogant our would-be rulers can be, here's Nancy Pelosi's outrageous statement on the transparency of law:

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Bad news... we were right.

Chalk another one up for Unforeseen Contingencies.  "Our" Prediction Number 5, that the mandate would be upheld, has come to pass.  I doubted that the Supreme Court would interfere with the mandate in PPACA.  I'm not happy about this, but not surprised.

What's interesting -- and extremely important -- that the Commerce Clause argument was rejected.  So too the "Necessary and Proper" argument.  Contrary to the blatherings of progressive "experts," had these arguments stood, it would have been a massive expansion of Congressional power.  As it is, it is bad enough that we can be taxed if we don't conform to government social engineering schemes.  But the expansion of the Commerce Clause would have been much worse.

But there's a big problem.

What I don't understand is this: if the mandate is a tax, the Tax Anti-Injunction Act (AIA) should have prevailed, shouldn't it?  Under the AIA, a case cannot be brought against a tax until after it has been collected.  In that case, SCOTUS should have had no authority to decide the case now -- this was the first set of issues to be decided, the ones presented on the first day of the arguments.  How can the mandate be a tax for purposes of testing its Constitutionality, but not for purposes of the AIA?  I've not read the full set of opinions yet, just skimmed 'em, but the opinions seem as convoluted as the frickin' act itself.


Another good part of the decision is that States cannot be penalized for refusing to participate in the Medicaid expansion.


And finally, one more thing that's good about this is that libertarians, conservatives, and Republicans are now going ballistic.  Here's hoping that this galvanizes the opposition to the Obama regime.


The full set of Supreme Court opinions on PPACA is available here.  

Irony, slightly dark, is always welcome when contemplating the news.  So is pithy analysis.  Hence "we" at Unforeseen Contingencies are pleased to note the following.

The EU's Court of Justice has just ruled that workers in the EU who become sick during vacations  are legally entitled to a new vacation.  Their "logic" is that that vacation time (a "right") is a time to rest and enjoy leisure.  If one is sick, one is doing something else, i.e. trying to rest and recover from illness.  Ipso facto being sick means one is not on vacation, but on sick leave.  Although the case originated in Spain, the ruling applies to all EU member countries.  (I'm reminded of the old Soviet saying, "We pretend to work, they pretend to pay us."  Only in the EU, employers actually have to pay.)  (And no one can figure out why the EU has chronic unemployment problems.)

The inane ruling is in itself a joke, but writer Paul Geitner and The New York Times deserve particular credit for the brilliant final sentence of the article:

"The ruling does not apply to the 25 percent of the Spanish labor force that is currently unemployed."

The Supreme Court will issue its rulings on the PPACA/Obamacare this week. "We" at Unforeseen Contingencies are waiting to see how our Prediction #5 will do, that "[t]he U.S. Supreme Court will fail to rule that the individual mandate in the Affordable Care Act is unconstitutional."

I'm less sure of this now than I was -- or, in other words, more hopeful. The "individual mandate" is one of the clearest examples extant of government imposing its will on individuals, rather than individuals controlling a government which serves them. Nothing in the Constitution empowers the federal government to require us to buy anything; the Commerce Clause (Article I, Section 8.3) gives Congress the power to "To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes..."

The power granted is the power to set basic rules and commercial regulations, and nothing more. In particular, states cannot establish barriers to interstate trade, nor to foreign trade. This is reiterated in Article I Section 10.2.  It is more than a stretch to say that Congress has authority to force us to buy health insurance -- it is simply making up stuff.  If the interpretation of the Commerce Clause given by PPACA supporters is accepted by the court, then what limits are there on Congressional power? It's difficult to see what they would be.  Law professor and NYT columnist James B. Stewart seems surprised that anyone would seriously suggest there be any limit to Congressional power under the Commerce Clause, and particularly that the limit should be individual liberty.   After all, in the past:

"As the nation’s economy evolved from largely local markets to regional, national and increasingly global ones, the Supreme Court has taken a progressively broader view of Congressional power under the commerce clause, even when individual freedom had to be sacrificed. This included limiting one farmer’s ability to plant wheat during the Depression because his production affected the overall supply and hence had an effect on interstate commerce..."

As examples go of what's wrong with the left-liberal view of the Commerce Clause, Stewart's is as good as any. Regardless of what SCOTUS has previously ruled, the Constitution does not give Congress the authority to run commerce -- it does not authorize central planning. Given the view of "progressives" that Congress may do essentially anything it wants, it's hard to understand why we'd bother with a Constitution anyway. For instrumental reasons, I'm hoping that the entire PPACA is tossed out. I do not expect this, though, because I do not see why severability is problematic, since the act contains all sorts of provisions unrelated to health insurance.  (By "instrumental reasons" I mean that I can't see any inherent reason why scrapping the mandate would require scrapping the entire act, although I think we'd be better off without it.)

One red herring among the arguments for the mandate is the claim that by not purchasing insurance, an individual is imposing costs on all the rest of us, since if s/he is stricken and requires health care and cannot pay, all the rest of us end up paying for it in our premiums.  This is false.  Health care is not a public good in any sense -- it is rival in consumption, and easy to exclude non-payers.  That "we" do not exclude is not equivalent to non-payers imposing a cost on us.  "We" "choose" (metaphorical collective choice here) to take on the cost.  This is a very poor argument for a mandate.

My real concern is that no matter what happens, we are about to see a war conducted on the Supreme Court and on judicial independence. This will be, ultimately, a war on institutional limits to government.

Anna Schwartz, co-author of A Monetary History of the United States with Milton Friedman, died yesterday at the age of 96.  Allan Meltzer has a nice tribute to this great economist.  During my time at NYU Economics she was at the NBER, a few floors above us, and I occasionally saw her in the elevator -- one of my little brushes with true greatness.  Unforeseen Contingencies salutes her memory and her work.

While I'm at it, two more timely quotes from Jeff Cooper:

"The conclusions seem inescapable that in certain circles a tendency has arisen to fear people who fear government. Government, as the Father of Our Country put it so well, is a dangerous servant and a fearful master. People who understand history, especially the history of government, do well to fear it. For a people to express openly their fear of those of us who are afraid of tyranny is alarming. Fear of the state is in no sense subversive. It is, to the contrary, the healthiest political philosophy for a free people."


"In the larger sense, however, the personal ownership of firearms is only secondarily a matter of defense against the criminal. Note the following from Thomas Jefferson: The strongest reason for the people to keep and bear arms is, as a last resort, to protect themselves against the tyranny of government. That is why our masters in Washington are so anxious to disarm us. They are not afraid of criminals. They are afraid of a populace which cannot be subdued by tyrants."

On a ranch near Shiner, Texas, the father of a five year old girl caught another man in the act of raping her.  The father attacked the predator with his bare hands, and in the process killed him.  Happily, a grand jury has decided not to prosecute him.

In Philadelphia, Pennsylvania, a disabled retired Marine, Jonathan Lowe, was attacked by multiple armed robbers and taken to the ground.  Lowe responded by fighting back with a pocket knife and killed one of his assailants.  He now has been convicted of voluntary manslaughter and possession of an instrument of crime, and faces up to 25 years in prison. (More details here.)

Senator Charles Schumer (D, NY) has been asking for the Obama DOJ to "investigate" state self defense laws..."vigilatism," he calls them.

Opponents of these laws believe that a citizen who defends him/herself or a loved when when attacked is a "vigilante" who must be prosecuted.  I won't try to fathom why these scoundrels are concerned with protecting predators and punishing their intended victims, but I'll note some words of wisdom from Col. Jeff Cooper:

It is high time for society to stop worrying about the criminal, and to let the criminal start worrying about society.  And by "society" I mean you.

Just for the record, here is the heart of the law:

776.012 Use of force in defense of person.—A person is justified in using force, except deadly force, against another when and to the extent that the person reasonably believes that such conduct is necessary to defend himself or herself or another against the other’s imminent use of unlawful force. However, a person is justified in the use of deadly force and does not have a duty to retreat if:


The "does not have a duty to retreat" is the "stand your ground" part.  If you have reasonable grounds to use deadly force you cannot be prosecuted just because you didn't give way to the attacker.

The full law is available here.

My analysis of the Zimmerman case has been based on the facts as reported in the media.  But what if these aren't correct?  I recently saw a post by attorney Jeralyn Merritt on TalkLeft in which she analyzes the statements of witnesses to police, and concludes that the most likely scenario is that Zimmerman did not approach Martin, and couldn't find him when he looked for him.  Instead, Zimmerman was returning to his truck when Martin confronted and then attacked him.

It matters who assaulted whom.  If Martin started the fight, Zimmerman has a defense.  In her analysis, Merritt thinks the state has little chance of winning its prosecution.

I am unlikely to post much on the subject of the shooting itself, so long as there is due process.  What disturbs me about the case is its politicization by left-"liberal" progressives.  The dishonest thugs of the Brady Campaign are going berserk, calling S.B. 2213 and S.B. 2188 -- both of which would establish national reciprocity for concealed weapons permits -- the "George Zimmerman Vigilante Acts," even though these have nothing to do with vigilantism nor Zimmerman.  They also call Zimmerman "NRA's poster boy."  Paul Krugman dishonestly refers to "Florida’s now-infamous Stand Your Ground law, which lets you shoot someone you consider threatening without facing arrest, let alone prosecution..." even though the 'stand your ground law does not change the criteria for justifiable use of deadly force and doesn't say anything evenly vaguely like what Krugman says it does.  Krugman goes on to use this as a springboard to attack the American Legislative Exchange Council (ALEC), the Koch brothers, the NRA, Exxon Mobil and the rest of the conspiracy.  For some time ALEC has been a target of the left (e.g. the "liberal" Center for Media and Democracy), and the left has gone all out in exploiting the Zimmerman case to attack ALEC.  The left will also use this episode to try to reverse shall issue CCW laws, the Castle Doctrine, and to impose new gun controls.

Interestingly enough, here's what self-described liberal Jeralyn Merritt says about this issue: "56% of Floridians support Stand Your Ground laws. I support them as well. I don't understand why progressives have chosen this issue. Limiting any constitutional right is not progressive. It's reactionary."

Well said.

Finally, a post!

Does Michael Lind hate freedom?  I think there's pretty good evidence for this.

Michael Lind posed what he considered a "startling" question on Salon recently: "Why do conservatives hate freedom?"  In his discussion he properly takes conservatives to task for their opposition to the 1960's civil rights movement and their opposition to contraception, abortion, and the rights of gay people.  So far as this goes, he manages to remain fairly coherent, showing that America's founding principles are on the side of individual liberty, and that conservatives abandon these for Old Testament law in opposing civil rights.  (Unaccountably, Lind even manages to remain coherent when it comes to libertarians, whom he says are on the side of freedom -- hard to reconcile with his earlier claim that libertarians are totalitarian fascists.)  For a moment I was almost thinking that Lind might have come to his senses and was posting something reasonable.

But no..  Lind goes on.  "Since World War II, mainstream conservatives have opposed every expansion of personal liberty in the United States."  Every expansion?  Wow, that's quite a claim.  (That would almost make them "libertarians" in his earlier taxonomy!)  How could that possibly be?  Let's see.

Lind gives a list of other "expansions of freedom" conservatives have opposed, including:

• Minimum wage laws
• Compulsory unionization
• Economic regulations
• Government bailouts for mortgagees

I hope.

I think it's fixed.  I will have plenty to say about current financial debacles and other matters shortly!