Friday, June 29, 2012

A Bad Decision

Yesterday the court announced its ruling in the case of National Federation of Independent Businesses, et al v. Sebelius.  The court ruled on two elements of the Affordable Care Act (ACA), the individual health insurance mandate and the Medicare expansion.  The individual mandate is the heart of the act, and I will analyze the opinion as it relates to the mandate.

In Chief Justice John Robert's majority opinion, he explores two possible constitutional justifications for the individual mandate, the commerce clause and the taxing clause.  Both are located in Article II section 8 of the U.S. Constitution.  The commerce clause grants Congress the power "to regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes."  The Taxing clause says, "The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises."

The commerce clause has been badly misinterpreted by the Supreme Court for the better part of a century.  In 1942, the Court ruled in Wickard v. Filburn that the federal government could punish a farmer (Wickard) for growing wheat on his own land for his own family's consumption.  The court decided that Wickard's attempts to feed his family probably affected the interstate wheat market by a few thousandths of a cent, and were thus fair game for federal regulators.  This is wrong because the commerce clause is expressly concerned with interstate commerce itself, not anything and everything that might affect that commerce.  As Justice Clarence Thomas wrote in his personal dissent in yesterday's case, "I adhere to my view that 'the very notion of a "substantial effects" test under the Commerce Clause is inconsistent with the original understanding of Congress’ powers and with this Court’s early Commerce Clause cases.”

In his opinion on the ACA case, Roberts does not try to challenge the monstrosity that is Wickard v. Filburn, but he does make a distinction between commercial action and non-action. "The Framers gave Congress the power to regulate commerce, not to compel it, and for over 200 years both our decisions and Congress’s actions have reflected this understanding. There is no reason to depart from that understanding now."  Roberts concludes that the federal government may regulate commercial activity but not punish inactivity under the commerce clause.  Thus, the individual mandate cannot be justified by the commerce clause.

When reporters first heard the court's rejection of the commerce clause as a constitutional authorization for the individual mandate, many prematurely reported that the mandate had been struck down.  It turned out however, that the Chief Justice had a trick up his robes.  Roberts finagled a justification for the individual mandate out of the taxing clause.  The mandate penalizes those who are not covered by health insurance with a fee, that "shall be assessed and collected in the same manner as taxes."  Roberts says, "The Affordable Care Act’s requirement that certain individuals pay a financial penalty for not obtaining health insurance may reasonably be characterized as a tax.  Because the Constitution permits such a tax, it is not our role to forbid it, or to pass upon its wisdom or fairness."  Roberts is right about the role of the judiciary but wrong about the Constitution.

Incredibly, Roberts holds not only that the penalty is a tax, but that it is simultaneously a non-tax.  The Anti-Injunction Act bans lawsuits brought for the purpose of preventing the collection of taxes.  Roberts ruled that the penalty for failure to comply with the individual mandate is not a tax for the purposes of the Anti-Injunction Act.  He argues that Congress "chose to describe the '[s]hared responsibility payment' imposed on those who forgo health insurance not as a 'tax,' but as a 'penalty.'  There is no immediate reason to think that a statute applying to 'any tax' would apply to a “penalty.”  The Chief Justice offers a reasonable argument that the Anti-Injunction act does not deny standing to those suing over the individual mandate, but he then turns around and declares the individual mandate to be a tax after all.  To claim that the mandate penalty is simultaneously a tax and a non-tax is absurd.  The dissent by Scalia, Kennedy, Thomas, and Alito tears apart the majority opinion on this point.  The dissenters write,
What qualifies as a tax for purposes of the Anti-Injunction Act, unlike what qualifies as a tax for purposes of the Constitution, is entirely within the control of Congress . . . . Congress could have defined "tax" for purposes of that statute in such fashion as to exclude some exaction that in fact are "taxes."  It might have prescribed, for example, that a particular exercise of the taxing power "shall not be regarded as a tax for purposes of the Anti-Injunction Act."  But there is no such prescription here.  What the Government would have us believe in these cases is that the very same textual indications that show this is not a tax under the Anti-Injunction Act show that it is a tax under the Constitution. That carries verbal wizardry too far, deep into the forbidden land of the sophists.
Roberts' "verbal wizardry" aside, his claim that the individual mandate is authorized under the taxing power is problematic in and of itself.  Roberts says that regulatory taxation does not count as regulation.  He rejects outright Thurgood Marshall's axiom that "the power to tax is the power to destroy," quoting instead Oliver Wendell Holmes' dissent in Panhandle Oil Co v. Mississippi, which says, "The power to tax is not the power to destroy while this Court sits."  Common sense tells us that Marshall was right and that Holmes and Roberts are wrong.  If the federal government institutes a tax for the express purpose of regulating some activity, then it is itself a regulation.  If such a regulation could not be justified in the form of a direct statutory command under the commerce clause, then it is unconstitutional.  However, even if one believes regulatory taxation to be constitutional, the Chief Justice stretches the power of regulatory taxation beyond credulity.  The individual mandate is a command with a fine attached for failure to comply.  The majority opinion would have us believe that it is the fine that makes the mandate constitutional.  If the mandate did not punish noncompliance with a monetary penalty, then even the most liberal judge would never consider it to be authorized under the taxing power.  The court's ruling means that the federal government can tell American citizens to do absolutely anything provided that a fee for noncompliance is attached.

The effect of this case goes far beyond the Affordable Care Act.  The police power, the power to regulate the lives of the citizenry once belonged to the states alone.  Wickard v. Filburn and similar decisions transferred much of that power to the federal government.  In yesterday's decision, the Chief Justice completed the American government's transformation into a European style state in which every action or inaction of the citizenry is subject to regulation from an all powerful central authority.  In the 18th Century American colonies, the relationship between government and governed became perverted.  The colonists demanded the rights of Englishman and resisted those who denied them their rights.  All right thinking men today demand the rights of Americans, the rights usurped by a tyrannical federal government aided by a failed judiciary.  

Thursday, June 28, 2012

Obamacare Wins at the Supreme Court

The Supreme Court ruling today is disappointing.  I will post an analysis of the Court's opinion later today or tomorrow.

Monday, June 25, 2012

Betting Against Obamacare

Intrade, a futures market, says with a 76% degree of confidence that the Supreme Court will rule the individual health insurance mandate unconstitutional.  The Intrade speculators can't know the minds of the Supreme Court Justices, but their collective prognostication is worth considering.  In the 2004 presidential election, Intrade speculators correctly predicted the electoral outcome in every single state.  The high court is set to rule on Obamacare this Thursday.  Let's hope that the speculators who bet against it have made a good investment.

Saturday, June 23, 2012

Protest Photography

There are some great citizen journalists covering protests that range from Pro-Life marches to Communists camp outs.  Just a warning, some of the photo essays are not safe for work or kids.  Check them out!

Looking at the Left


Ringo's Pictures

Protest Shooter

Friday, June 22, 2012

Faith, Reason, and Mormons

In National Review Online, Daniel Prager writes, 
Commentators on both the right and left, and both secular and religious, note with disdain that Mormons (Latter-day Saints, as Mormons refer to themselves) have irrational practices and beliefs. The former, we are told, include the wearing of sacred undergarments and posthumous baptism, and the latter include the claims by the Mormon prophet to have found and deciphered engraved golden plates in New York State.
I read and hear these dismissals of Mormonism with some amusement — because everyone who makes these charges holds beliefs or practices (or both) that outsiders consider equally irrational.

There doesn’t exist a religion without such beliefs. I say this as a believing and practicing (non-Orthodox) Jew, so I’ll begin with my own religion.

I believe the Torah is a divine book. I believe that God took the Jews out of Egypt and that He gave the Ten Commandments Moses on Mount Sinai. To atheists and secularists, these are not necessarily rational beliefs. And they are certainly not scientifically provable. As for practices that many would consider irrational, traditional Judaism has quite a few. Just to cite one: Orthodox Jews believe that they are not permitted to drink wine or grape juice poured by a non-Jew.

Concerning Mormon undergarments, it is worth noting that Jews have worn a “sacred undergarment” for thousands of years. Those who belittle Mormon undergarments might as well belittle the “fringes” (tzitzit) that observant Jewish men wear inside or outside their clothing. Yet, neither the Jewish nor the Mormon practice is in any way irrational. Wearing a garment to remind oneself to always act in a morally elevated manner hardly constitutes unthinking behavior.

As for Christianity, non-Christians cannot be expected to find a basis in reason for the belief that God has a son who was born of a virgin. (If they do find this belief rational, they are probably Christian.) Nor do outsiders consider rational the Catholic and Eastern Orthodox belief that the wafer and wine consumed during Communion literally become the body and blood of Christ.
As for Muslims, the belief that an angel dictated the Koran to an illiterate man (Islam holds that Muhammad was illiterate) is surely not rational to a non-Muslim. Nor are myriad post-Koranic beliefs, such as the requirement that women wear a veil.
Prager is right that condemnations of Mormonism for such trivial things as underwear is silly.   However, he is incorrect in his assertion that the teachings of a particular religion must seem irrational to those not of that faith.  The Islamic teaching that an angel dictated a holy book through an illiterate man is not opposed to reason.  It is opposed to the normal order of things, which is why it is called a miracle, but it is in and of itself no more irrational than the belief that Jesus cured blindness.  The question of whether or not Mormonism or Islam are based on irrational premises is a topic for another day, but those who believe in those premises are not irrational to hold to the teachings that arise from them.

Monday, June 18, 2012

Funny Stuff

Remember that dumb Life of Julia timeline concocted by the Obama campaign?  Iowahawk has produced a much improved version.

The B-Movie Catechism considers the wife of Cain.

The Grammar Nazi!

Thursday, June 14, 2012

Fringe and Free Will

Fringe is one of my favorite TV shows, largely because of the moral and religious themes that appear in it.  However, one of the basic premises of the show would seem to nullify morality itself.

The major plot arcs in Fringe concern an alternate universe, very similar to our own, but differing in some ways.  Most people seem to have a doppelganger in the other universe, and their personalities are often different, sometimes extremely so.  In one episode, a peaceful psychology professor on our side has a counterpart in the other world who is a serial killer.  The parallel universes make for some great sci-fi storytelling but may be necessarily opposed to free-will.

In the show, Dr. Walter Bishop explains the concept of the multiverse, in which every possible outcome, including every possible decision made by an individual, is contained in a separate universe.  If this is an accurate description, then the multiverse must be ruled by material determinism, and free will is an illusion.  If every possible future occurs across an infinite number of universes, it can only be because each future is the result of material processes that differ somewhat in each universe.  This is not problematic when one is just considering animals, vegetables, minerals, and star clusters, but when applied to people, it would seem that human action consists of nothing more than the predictable and material neurological response to purely material stimuli.

The Fringe writers are aware of this problem and sought to address it in one episode.  FBI agent Lincoln Lee and his doppelganger were comparing their life histories while working on a case together.  The two men have markedly different personalities but found that they grew up and matured in almost identical circumstances.  Lee 1 asked Lee 2 how this could be, and Lee 2 said that he believed their differences are the result of free will.  Could he be right?

For Lincoln to be right about free will, Walter must be wrong about the multiverse.  If alternate universes are not an infinite collection of materially determined outcomes but are non-deterministic worlds in which free will exists, then a different problem presents itself, namely, probability.  The two universes are not identical, but the similarities are so great as to be ridiculously improbable.  For example, almost everyone in one universe has a counterpart in the other.  Think about the family tree that precedes each person all the way back to the creation of man.  For even one person to exist in both universes, every one of his ancestors in both worlds had to be conceived and themselves beget children successfully.  One person might have a different number of relatives than their counterpart, but their direct line of ancestry would have to be exactly the same.  One person existing in both universes is absurdly improbable and billions of more human pairs such as those in Fringe are even more improbable.  An infinite number of materially determined universes solves the problem of probability, but does away with free will.  However, there is one way that free will could exist in realistically probable parallel universes.

Two different universes could be very similar, contain versions of the same people, and include free will, if both "universal destinies" were guided by Divine Providence.  By inspiring good and allowing evil the same way in both universes, God could guide humanity's development towards a similar future.  This might sound like a heavy handed, Calvinist God, but I don't think so.  The genealogy of Jesus was divinely guided, but His human ancestors had free will.  The Crucifixion was predestined but Christ's executioners had free will.  Why would Jesus ask his Father to forgive them unless they had freedom, and thus moral responsibility for His death?  Similarly, God might guide the universes and their occupants to a particular destiny.  This sort of divinely inspired parallel universe scenario may be a bit of a stretch, but I think that it is the most satisfactory way to reconcile free will with Fringe.

This Day in History

Some actual writing is coming soon.  In the mean time, check out This Day in History on the History Channel website.  A brief video overview of historical happenings is available for every day of the year.  This is today's video:

Monday, June 11, 2012

Jonathan Swift on Precedent

In part 4 of Gulliver's Travel's, Gulliver explains legal precedent.  Reminds one of Roe v. Wade and Wickard v. Fillburn.
It is a maxim among these lawyers that whatever has been done before, may legally be done again: and therefore they take special care to record all the decisions formerly made against common justice, and the general reason of mankind. These, under the name of precedents, they produce as authorities to justify the most iniquitous opinions; and the judges never fail of directing accordingly.

Thursday, June 7, 2012

What is Obama Thinking?

What is wrong with president Obama?  How could he possibly think that forcing Catholic institutions to pay for birth control is a good idea?  I have a hypothesis.

President Obama is waging war on the Catholic church, but perhaps he does not realize it.  Too him, a church is a building where people go to pray, not a massive institution that has hospitals, schools, and other ministries that are fully part of it.  I think this fundamental failure to understand the nature of the Catholic Church is due to Obama's Protestantism and his secularism.  For most Protestants, a church is a place in which "two or three come together in my (Christ's) name."  For the sake of convenience, a community of Christians participate in these gatherings at a particular place, where a building is erected to keep the rain out.

In contrast, a Catholic church is one outpost of a vast army that includes all the Hosts of Heaven.  The faithful are joined in the sacrament of communion with every faithful Catholic, living and dead.  By this sacrament, they are filled with grace to fortify them in their ministries, some of which take place in Church institutions such as schools and hospitals.  These ministerial institutions are not simply places that Catholics work, but are part of the Church.

The fact that Catholic institutions do their work so publicly must be what prevents the president from grasping their true nature.  For secular liberals like Obama, religion is something you keep to yourself.  You can quote a bible verse occasionally when you're pushing "social justice," but for the most part religion is confined to the aforementioned buildings.  Religion is not a public thing for secularists.  Catholic schools and hospitals are institutions that cater to the general public, therefore they don't fit the liberal secularist understanding of religion.  Obama and friends don't hate religion, but they think that it ought to mostly be restricted to private worship.  Until all of those reactionary theocrats like Timothy Dolan fall into line, liberals will talk only of "freedom of worship" instead of "freedom of religion" so as not to confuse the faithful.  Of course, in reality, it is president Obama who is confused.  May God change his heart, and may voters change his home address.

Wednesday, June 6, 2012

Our New Bishop

God bless His Excellency, Gregory Parkes, the new bishop of Pensacola-Tallahassee!

Monday, June 4, 2012

The Rosary and "Vain Repetitions"

This video from Jimmy Akin is the best explanation of Jesus' warning against "vain repetitions" I've heard.

Sunday, June 3, 2012

Notre Dame Fails

Last week a lot of Catholics started celebrating the lawsuit brought by Notre Dame against the HHS contraceptive mandate.  As is my wont I will explain why you should all stop being so happy.  It is nice that Notre Dame is suing the government but I suspect that the intentions of its leadership are rather self-serving.

Fr. Jenkins, the president of Notre Dame, has this to say: (H/T TAC)
Let me say very clearly what this lawsuit is not about:  it is not about preventing women from having access to contraception, nor even about preventing the Government from providing such services.  Many of our faculty, staff and students—both Catholic and non-Catholic—have made conscientious decisions to use contraceptives.  As we assert the right to follow our conscience, we respect their right to follow theirs.
Fr. Jenkin's statements about faculty, staff, and student use of contraceptives is just nauseating.  A decision based on a poorly formed conscience is not the same as a "conscientious decision."  The decision to take contraceptives is a selfish one, and is especially morally dangerous for Catholics.  Fr. Jenkins need not have condemned contraception in his statement on the lawsuit, but nor should he have offered cover to those who contracept.  His excuses for contraception look like a lame attempt at ingratiating himself with president Sauron. 

The fact that Fr. Jenkins is so comfortable with contraception leads me to believe that the administration of Notre Dame is only suing the government out of necessity.  The school cannot obey the mandate without getting its Catholic credentials yanked, but it can't afford to pay the fines for not sacrificing to Caesar.  A constitutional challenge to the HHS mandate is simply the choice of greatest utility.