March 23rd, 2012

What passes for legal analysis in Slate

Soon the Supreme Court will be facing the question of whether the federal health care individual mandate is constitutional, but Slate’s Dahlia Lithwick thinks the legal questions are laughable and not even worth considering. Of course it’s constitutional, dummyheads, she writes.

Why? Well, first of all, because until recently, the Obama administration “expended almost no energy defending it.” Now, there’s a convincing argument.

And then there’s Lithwick’s second argument, the argument from Pelosi authority, “Back when the bill passed Nancy Pelosi famously reacted to questions about its constitutionality with the words, ‘Are you serious?’” Touché, Dahlia!

And her third argument is that “the fact that the Obama administration rushed the case to the Supreme Court in an election year is all the evidence you need to understand that they remain confident in their prospects.”

And that’s all Lithwick seems to need to declare it Q.E.D. that the law is constitutional and that no reasonable man (or woman) could ever find otherwise. The rest of her article is devoted to wondering whether those backwards and completely-politically-motivated conservative Justices will find it unconstitutional anyway.

And lest you think Lithwick is just a legal know-nothing, she’s got a law degree from Stanford. So she can’t use ignorance of the law as an excuse.

[ADDENDUM: I just read Ed Whelan's piece in National Review, which is in agreement with what I've said here but goes into it at greater length.]

31 Responses to “What passes for legal analysis in Slate

  1. chuck Says:

    And lest you think Lithwick is just a legal know-nothing, she’s got a law degree from Stanford.

    One of these things is just like the other…

  2. Artfldgr Says:

    Krauthammer points out that if it is held up as legal, then we are in a totalitarian state…

    and so, they would have found a way to legally negate the whole constitution in a constitutional way..

    and since we are so used to the faux bs legal normalized crappy thing… guess what will happen?

    and look, this time they did not have to pull punumbras from their arses..

    but bottom line, its held up, then the commerce clause means there are no limits to the state, and the rest is a done deal, we are then in a totalitarian state…

    and just as the state can impugn income greater than you can earn (see family court fathers), they can impugn that you buy all that they want… and when you cant…

    now remember, there is NO constitutional right to take money and give it to others!!!!!!!!! (see Not Yours to Give), which is what set this all going… and of course, derivation means nothing… (ie an unconstitutional practice leads to a crisis for which a constitutional application shatters the constitution – the general welfare clause wrongly applied in ignorance of the actual meanings as laid out by the founders)

    Ultimately, the question will hinge on whether the Commerce Clause has any limits.

    If the federal government can compel a private citizen, under threat of a federally imposed penalty, to engage in a private contract with a private entity (to buy health insurance), is there anything the federal government cannot compel the citizen to do?

    no… including putting a person to death for failure to pay… you say no, but how so? as the state without limits can do what it wants and you can whine and wail all the way to the grave…

    If Obamacare is upheld, it fundamentally changes the nature of the American social contract.

    It means the effective end of a government of enumerated powers — i.e., finite, delineated powers beyond which the government may not go, beyond which lies the free realm of the people and their voluntary institutions.

    The new post-Obamacare dispensation is a central government of unlimited power from which citizen and civil society struggle to carve out and maintain spheres of autonomy.

    now… call me dumb, but if the constitution is to protect and limit the government then technically and logically, any point that would negate this would be unconstitutional

    but hey! just as we cant think any more clearly on experimenting on children a la mengele… and do so all the time… (we even have titles for it and terms… like interventions… didnt mengele intervene to help those kids the way that ideology saw it?)

    well…
    as i said..
    its a done deal as the people are too stupid to stop it having to have acted when they thought all this was tin hat and impossible.

    if even legal scholars cant see that self destruction was and not constitutional power granted by the constitution by any other means than dissolution…

    one does NOT have to prove anything…

    ie. you cant prove that its basis is its own destruction…

  3. Artfldgr Says:

    it reminds me very much of soviet law thinking..

    where the spirit and intent are ignored and word games are played… and over time, as language changes, word games increase as the old terms are not updated… (ergo the misuse of welfare clause leading to the pretended need to implement a fix that will destroy that which its to fix)

    i could care less as to where they got their papers…

    http://www.fee.org/library/not-yours-to-give-2/

    I will not go into an argument to prove that Congress has no power to appropriate this money as an act of charity. Every member upon this floor knows it. We have the right, as individuals, to give away as much of our own money as we please in charity; but as members of Congress we have no right so to appropriate a dollar of the public money.

    the state has NO RIGHT To tax money to control behavior… to increase revenue… or to give charity..

    once you allowed that, it was a matter of time before it would turn on itself and eat itself… as it was broken and meaningless except by custom from that point. with the only measure is how much the public would react regardless of its propriety..

    there is also no right to decide what laws you will enfoce or not… so that you can avoid constitutional testing until some other date when such test is no longer possible..

    an understanding of the Constitution different from mine I cannot overlook, because the Constitution, to be worth anything, must be held sacred, and rigidly observed in all its provisions. The man who wields power and misinterprets it is the more dangerous the more honest he is – Horatio Bunce

    and he was right…
    and Bunce knew more of the constitution and its intents and such than the legal men in state…

    Though I live here in the backwoods and seldom go from home, I take the papers from Washington and read very carefully all the proceedings of Congress. My papers say that last winter you voted for a bill to appropriate $20,000 to some sufferers by a fire in Georgetown . Is that true?’

    “‘Well, my friend; I may as well own up. You have got me there. But certainly nobody will complain that a great and rich country like ours should give the insignificant sum of $20,000 to relieve its suffering women and children, particularly with a full and overflowing Treasury, and I am sure, if you had been there, you would have done just as I did.’

    and that is our attitude as well..
    we do whats constitiutional when it suits us
    and ignore it when it suits us

    so all this is, is an unconstitutional thing on top of another unconstitutional thing..

    and you cant tell its unconstitiutional any more as the prioir unconstitutional actions have negated it!!!!!!!!!!!!!

    It is not the amount, Colonel, that I complain of; it is the principle. In the first place, the government ought to have in the Treasury no more than enough for its legitimate purposes. But that has nothing to do with the question. The power of collecting and disbursing money at pleasure is the most dangerous power that can be intrusted to man, particularly under our system of collecting revenue by a tariff, which reaches every man in the country, no matter how poor he may be, and the poorer he is the more he pays in proportion to his means. What is worse, it presses upon him without his knowledge where the weight centers, for there is not a man in the United States who can ever guess how much he pays to the government. So you see, that while you are contributing to relieve one, you are drawing it from thousands who are even worse off than he. If you had the right to give anything, the amount was simply a matter of discretion with you, and you had as much right to give $20,000,000 as $20,000. If you have the right to give to one, you have the right to give to all; and, as the Constitution neither defines charity nor stipulates the amount, you are at liberty to give to any and everything which you may believe, or profess to believe, is a charity, and to any amount you may think proper.

    money to give to other states is illegal as well.. there is no right to that either..

    so tell me that this is constitutional?

    the state has no right taking and redistributing wealthy or compelling such…

    but somehow even neo has lost the plot and the line of thought that would bring Alice back home from wonderland

    You will very easily perceive what a wide door this would open for fraud and corruption and favoritism, on the one hand, and for robbing the people on the other. No, Colonel, Congress has no right to give charity. Individual members may give as much of their own money as they please, but they have no right to touch a dollar of the public money for that purpose. If twice as many houses had been burned in this county as in Georgetown , neither you nor any other member of Congress would have thought of appropriating a dollar for our relief.

    The congressmen chose to keep their own money, which, if reports be true, some of them spend not very creditably; and the people about Washington , no doubt, applauded you for relieving them from the necessity of giving by giving what was not yours to give. The people have delegated to Congress, by the Constitution, the power to do certain things. To do these, it is authorized to collect and pay moneys, and for nothing else. Everything beyond this is usurpation, and a violation of the Constitution.

    The people have delegated…

    ie.. power comes from the peoples permission to be governed…

    and so delegated powers cant be delegated again… any such is and has been ruled unconstitutional, but one has to remember to bring it up.

    So you see, Colonel, you have violated the Constitution in what I consider a vital point. It is a precedent fraught with danger to the country, for when Congress once begins to stretch its power beyond the limits of the Constitution, there is no limit to it, and no security for the people.

  4. Artfldgr Says:

    regardless, the point is correct..

    you are not free if the state can compel you to purchase from companies the politicians are invested in…

    and big money is invested in insurance, energy, construction, etc..

    go ahead… why not check out to see who they are invested in and how they think like morons that they are going to make out like crazy….(forgetting that its not going to be viable after)

    If you want a vision of the future, imagine a boot stamping on a human face – forever.
    George Orwell

    It takes two to make a murder. There are born victims, born to have their throats cut, as the cut-throats are born to be hanged.
    Aldous Huxley

    Men do not learn much from the lessons of history and that is the most important of all the lessons of history.
    Aldous Huxley

    Most human beings have an almost infinite capacity for taking things for granted.
    Aldous Huxley

    Most ignorance is vincible ignorance. We don’t know because we don’t want to know.
    Aldous Huxley

    “If the American people ever allow private banks to control the issue of their currency, first by inflation and then by deflation, the banks and corporations that will grow up around them will deprive the people of all property until their children wake up homeless on the continent their fathers conquered.” Jefferson…

    I am a most unhappy man. I have unwittingly ruined my country. A great industrial nation is controlled by its system of credit. Our system of credit is concentrated. The growth of the nation, therefore, and all our activities are in the hands of a few men. We have come to be one of the worst ruled, one of the most completely controlled and dominated governments in the civilized world. No longer a government by free opinion, no longer a government by conviction and the vote of the majority, but a government by the opinion and duress of a small group of dominant men.” Woodrow Wilson

    “From the days of Spartacus-Weishaupt to those of Karl Marx, to those of Trotsky, Bela Kun, Rosa Luxembourg, and Emma Goldman, this world wide conspiracy for the overthrow of civilization and for the reconstitution of society on the basis of arrested development, of envious malevolence and impossible equality, has been steadily growing.

    It played a definitely recognizable role in the tragedy of the French Revolution.

    It has been the mainspring of every subversive movement during the nineteenth century, and now at last this band of extraordinary personalities from the underworld of the great cities of Europe and America have gripped the Russian people by the hair of their heads, and have become practically the undisputed masters of that enormous empire.” Churchill

  5. George Pal Says:

    Refreshing to hear Dahlia from Stanford Law not resorting to all that legalese mumbo-jumbo and relying on political anthropomancy instead. One thing though… who was offed? Anyone missing?

  6. Curtis Says:

    An absolute and superb read, Artfldgr.

    The progressive crowd disappeared down the rabbit hole and know it not. It reminds me of the Scripture, “And it repented the LORD that he had made man on the earth, and it grieved him at his heart.”

    And I like this excerpt from Matthew Henry’s Concise Commentary:

    The wickedness of a people is great indeed, when noted sinners are men renowned among them.

    What would you say Obama’s main sins are: Pride, Slander, Sloth, Envy . . . VDH has a great post on Obama and notes Obama’s appeal to a majority of the people. It’s a good read. The satire is, uhmmm, satisfying. Almost as good as yogurt soup? I gonna haf a try at.

    http://www.victorhanson.com/articles/hanson032212.html

  7. Ray Says:

    If you read the Federalist Papers discussion of the commerce clause, it was not intended to give the federal government power over interstate commerce. The federal goverment has simply siezed this power with the approval of the courts.

  8. Occam's Beard Says:

    I’m just glad Congress hasn’t (so far) mandated that we all purchase Windows Vista. /shudder

  9. Ken Says:

    I thought you were exaggerating the article making her arguments sound more simplified than she actually made, so I read her article. I stand corrected.

    This woman has a JD from Stanford and actually declares that a law is constitutional because Obama didn’t defend it that much. Ha! How low are Stanford’s standards?

  10. Parker Says:

    “And her third argument is that “the fact that the Obama administration rushed the case to the Supreme Court in an election year is all the evidence you need to understand that they remain confident in their prospects.””

    I think BHO & crew see this as a win-win. If the ruling allows the individual mandate to stand, its a big boost to his campaign. If he loses, its just another reason for the base to fervently support his campaign so he can get the right, as in leftist, justices on the court during his second term.

    Seconding Curtis, thanks for the great info Artfldgr. If this is allowed to stand Occam will not only be buying Windows Vista; he’ll be driving a Volt, and subscribing to OWN TV.

    This will be another 5-4 I think and its just as nail biting as the recent decision on the 2nd.

    Here’s a link to a case that should make us all shudder:
    http://tinyurl.com/3kltvk

    “This woman has a JD from Stanford and actually declares that a law is constitutional because Obama didn’t defend it that much. Ha! How low are Stanford’s standards?”

    Low as in buried a mile under the Mariana Trench. She’s using Pelosi as a source of Constitutional wisdom and insight and Pelosi is the dullest knife in any kitchen in the galaxy.

  11. J.J. formerly Jimmy J. Says:

    I understood that the DOJ was now favoring emphasizing the General Welfare clause as the argument for constitutionality. Commerce can be shown to have some limits. General Welfare, on the other hand, depends on who is defining what it is. And the progs all believe that the general welfare of the “folks” is best looked to by a benevolent and all encompassing government. This is truly a battle for the continuance of the Republic.

  12. JimBobElrod Says:

    Taranto has his own takedown:
    http://online.wsj.com/article/SB10001424052702304636404577299653783574154.html

  13. rickl Says:

    Part of the problem is the notion that the Supreme Court should be the final arbiter of what is constitutional. The three branches of government are supposed to be coequal.

    Congress should be able to override Supreme Court decisions by a 2/3 majority.

    When was the last Supreme Court justice impeached? I think Congress has that power, but I’m not certain. On the other hand, Obama has committed how many impeachable offenses, and yet Congress does nothing.

  14. SteveH Says:

    What do you even call an ideology that repeatedly uses “well duh” as its reasoning argument? And more importantly what do you call grownup people who fall for it?

    The last time i got snookered for such a ploy was in Miss Maxwell’s third grade class. Where i was told to hide under her desk and look up her dress because everybody had done it.

  15. Mr. Frank Says:

    The left foolishly believes that a strong central government without restrictions will do the right thing. Conservatives believe the opposite. History would suggest the latter.

  16. Curtis Says:

    Excellent point rickl, and indeed, what is constitutional is a shared responsibility and part of every citizen’s right and duty to decide. Merely because the SCOTUS says so don’t make it so. Imagine if we had a SCOTUS of Ginsburgs. We would no longer have our Constitution. We would have South Africa’s. Wooooo.

  17. texexec Says:

    “Pelosi is the dullest knife in any kitchen in the galaxy.”

    On any subject but especially on the Constitution.

  18. Curtis Says:

    Duty Paper. Subject: American Recovery. Author: James T. Kirk. ///Thesis Statement. Senior Project.

    It is a standard observation that the Federation is an outgrowth of the American Enterprise System which developed in response to the Iranian Nuclear Strike on Israel in 2013 and threatened nuclear, biological and chemical mass destruction. This DP states as its thesis the proposition that political and economic freedom are both required for a stable society which guarantees peace and equal protection of law. This system only evolves from a belief that Nature and Nature’s God requires that life, liberty and protection of property is the proper goal of government.

  19. Curtis Says:

    Guilty. Am I. That’s why I rely on Neo. My guilt? You ask? Projecting my belief, my want, my demand, on the future, on . . . well . . . everything. That is why I am the world’s worst prognosticator.

    Well, almost. Here’s one that I think beats me:

    http://newsbusters.org/blogs/matt-hadro/2012/03/23/cnn-legal-analyst-says-scotus-might-uphold-obamacare-8-1

    If I get that bad, please shoot me.

  20. Curtis Says:

    The Sad Truth:

    We should not rely on the Supreme Court. It should not decide against Obamacare based on what courts are supposed to do. Courts do not make law. They apply from the general to the specific based on precedent. And the precedents clearly state Obamacare is constitutional. That is the sad truth. Same thing with Dred Scott. And it was not the Supreme Court that provided a remedy but a horrible and awful and bloody and costly civil war.

    The judiciary looks to the past. The legislature looks to the future. And it is the future implications of Obamacare which contain the best arguments against it since the plain clear language of our Constitution has been overwritten by later Supreme Court progressive case law starting with Wickard v Filburn.

    Ironically, this conservative view of judicial function functions against conservative view. Progressives do not adhere to such a limitation, but since conservatives do, their judgments upholding egregious laws based on stare decisis, is not matched by their counterparts. Eventually, over time, the result is that laws supporting conservative postions are judicially repealed but laws supporting progressive positions are not.

    What shall be the remedy? That conservative judges relinquish their stare decisis, a key position of their oath? No. The people get what they elect. And that is what we are getting. The remedy is sickness. Disease. Poverty. Death. Until the body learns what is good for it.

  21. rickl Says:

    What shall be the remedy?

    You really don’t want to know the answer to that.

  22. Beverly Says:

    Curtis, that is what Judge Bork referred to as “the ratchet effect.” It only ever goes one way.

  23. Beverly Says:

    From Wickedpedia:

    “24 years after Bork’s nomination was rejected, in 2011, New York Times columnist Joe Nocera claimed that “[t]he Bork fight, in some ways, was the beginning of the end of civil discourse in politics… The anger between Democrats and Republicans, the unwillingness to work together, the profound mistrust — the line from Bork to today’s ugly politics is a straight one.”

    Nocera cited Democratic activist Ann Lewis who acknowledged that if Bork’s nomination “were carried out as an internal Senate debate we would have deep and thoughtful discussions about the Constitution, and then we would lose.”"

  24. Bill West Says:

    Lithwick begins by saying that her points are “uncontroversial”, which is a legaleze version of the old leftist speaker standby – “Clearly”.

  25. Ymarsakar Says:

    That’s assuming the power of the Supreme Court is Constitutional.

  26. JLK Says:

    What happens if the Supreme Court finds the mandate unconstitutional for us poor schmucks in Massachusetts? Does that mean we will get a reprieve from/or are we stuck with the Crap of Commonwealth Care and the so-called “Health (Hell) Connector”?

  27. neo-neocon Says:

    JLK: the Supreme Court isn’t considering that question. The issues in the case are federal issues—such as, for example, whether the interstate commerce clause (which does not apply to the states) allows an individual mandate.

    Offhand, I can’t think of any constitutional grounds on which a state individual mandate could be challenged. Federal powers are enumerated (listed) by the Constitution whereas state powers are reserved, unless explicitly prohibited. Nothing in the constitution would seem to prohibit a mandate at the state level.

  28. JaneLK Says:

    neo: I appreciate your feedback and legal expertise. So either way, MA residents are screwed it seems. I don’t know if you have encountered any issues w/the state mandate, but I have found it to be an awful bureaucratic mess. As a person who not only wants but needs control over my healthcare choices, it has been more stressful than helpful.

  29. I R A Darth Aggie Says:

    Hey, Occam’s Beard, at least they’re not forcing you to purchase a GM or Chrysler product.

    Yet.

  30. Don Carlos Says:

    That would depend on that state’s constitution, Neo. And the voters. In the case of MA, it is beyond saving; a terrible irony for a cradle of liberty. I believe Deval Patrick is in his 2nd term, so perhaps as MA goes, so goes the nation.

  31. neo-neocon Says:

    Don Carlos: of course, if a state Constitution prohibits something then that state legislature would be barred from doing it. But we’ve been talking about whether the US Constitution bars something at the state level, and it doesn’t appear to me that there is anything in the US constitution that would bar an individual mandate at the state level.

    Although Massachusetts was indeed the cradle of liberty, that baby left the cradle a LONG time ago.

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Previously a lifelong Democrat, born in New York and living in New England, surrounded by liberals on all sides, I've found myself slowly but surely leaving the fold and becoming that dread thing: a neocon.
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