CEI has filed a
Motion to Dismiss For Failure to State a Claim. They also filed a S
PECIAL MOTION TO DISMISSPURSUANT TO THE D.C. ANTI-SLAPP ACT.
As a non-legal eagle, I was waiting to see what the legal response to the suit would be.
Here’s how the motion to dismiss starts:
SUPERIOR COURT OF THE DISTRICT OF COLUMBIACIVIL DIVISIONMICHAEL E. MANN, PH.D.,Plaintiff, v.NATIONAL REVIEW, INC., et al.,Defendants. ) ) ) ) ) ) ) ) ) ) )Case No. 2012 CA 008263 B Judge Natalia Combs GreeneNext event: Initial Scheduling Conference January 25, 2013
DEFENDANTS COMPETITIVE ENTERPRISE INSTITUTE AND RAND SIMBERG’S MOTION TO DISMISS PURSUANT TO RULE 12(b)(6)
Pursuant to Rules 12(b)(6), Superior Court Rules of Civil Procedure, DefendantsCompetitive Enterprise Institute and Rand Simberg (“CEI Defendantsâ€) respectfully move for anorder dismissing the Complaint’s claims against them with prejudice. As set forth in the accompanying memorandum, the CEI Defendants’ commentary on Plaintiff Michael E. Mann’s research and Penn State’s investigation of his research is an expression of opinion and rhetorical hyperbole protected by the First Amendment to the United States Constitution. The Complaint also fails to plausibly allege that the CEI Defendants acted with actualmalice, a required element of both the defamation and intentional infliction of emotional distress claims. Accordingly, Mann’s claims fail as a matter of law. WHEREFORE, the CEI Defendants respectfully request that the Court grant their Motionto Dismiss and enter judgment in their favor dismissing the Complaint’s claims against DefendantsCompetitive Enterprise Institute and Rand Simberg with prejudice
The anti-slap act motion includes this
As set forth in the accompanying memorandum, the CEI Defendants’ commentary onPlaintiff Michael E. Mann’s research and Penn State’s investigation of his research is protected by the D.C Anti-SLAPP Act because it is unquestionably an “act in furtherance of the right of advocacy on issues of public interest,†D.C. Code §
16-5502(a), and Mann cannot demonstrate that his claims are “likely to succeed on the merits,†D.C. Code § 16-5502(b). In the event that thisMotion is granted, the CEI Defendants reserve the right to file a motion seeking an award of the
costs of this litigation, including attorneys’ fees, pursuant to D.C. Code §
16-5504(a).
Jonathan Adler of The Volokh Conspiracy writes,
So in order to prevail Mann will not only have to show that Simberg and CEI made provably false statements of fact concerning him that were defamatory, he will also have to show that Simberg and CEI made knowingly false statements or make their statements in “reckless disregard†of the truth — and that is notoriously difficult to do, particularly in the context of heated political debate. Further, Mann is unlikely to have the benefit of discovery to assist in his claims. Should Simberg and CEI prevail with this motion, they will be able to seek recovery of their legal costs. All of this makes me wonder why Mann chose D.C. as the venue for his suit.
I guess now we wait to see how the judge rules on this.
Mann has always faced on uphill climb on this one. Also, the fact that the complaint itself was kinda over the top in its wordy, wounded self-righteousness probably did not help (unless bugs is clerking for the judge). It will likely be taken by the court as a strong signal that the plaintiff really wants a forum to air broader personal issues rather than focus on specific, legally cognizable claims–an incentive to boot the case as early as possible.
If I had to bet, I would say that the case gets dismissed before discovery (I was really looking forward to another dive into Mannian email) but that the defendants don’t get awarded fees. Put me down for 4 quatloos on that outcome.
No idea on the legalities, but Mann and “emotional distress”? Hah! He loves it! It makes him the centre of attention. And he gets book advances from it.
Bad link that’s supposed to go to Volokh.
Sorry to be a pedant but I think the heading should be “STEYN” not STEIN”.
Regards
Given that the law is pretty lenient on jerks in order to protect freedom of speech, I doubt Mann wins this. It’d be a shame if he has to pick up Steyn’s legal bills, which sucks given all the lies that Steyn and Watts et al have been spreading about Mann for years.
AT least the lawyers will profit and that’s what really matters here.
Boris,
“AT least the lawyers will profit and that’s what really matters here.”
I’m sure the suckers that donated to Mann’s legal “defense” fund will feel good about providing some more income to the tobacco lawyers that he hired .
I think I have said before, but it may be worth saying again: Mann’s objective is not to win the case, he clearly will not, it is to intimidate people who criticize him (and the validity of his work).
.
That is why the anti-slapp motion was filed. They won’t win on that motion (it is the DC court after all), but the legal costs will be significant, and I suspect the (very liberal) judge will not award legal fees either. Since Mann is paying nothing (pro bono or third party funded), I suspect his tactics will be effective…. a lot of people will be intimidated and avoid critiques of Mann.
SteveF,
I don’t know much about legal wranglings other than I hope like Hell to be able to avoid them, but since SLAPP legislation was generally passed in order to prevent corporations and “the rich” from intimidating the common folk, would a ruling against the SLAPP motion set a precedent that a strategic-thinking liberal court might be hesitant to do?
In other words, might they throw Mikey under the bus in order to protect the concept of SLAPP legislation?
who wants to be a Judge? it’s an interesting case with lots of ramifications. call it right and you are a star. call it wrong and you are cleaning the toilets in 10nyears time.
John M,
I could be wrong, but I really do not think that judge will ever agree to the anti-slapp motion. This is a political case, and the judge is a liberal… I have never heard of a liberal judge who will not distort the law to achieve a political goal; that is just the way liberal judges think. If you doubt it, read Justice Bryer on how the constitution must not interpreted to say what it’s plain words say. Liberals think nothing should ever stand in the way of ‘progress’.
Boris
Mann could prevent lawyers from profiting by not suing. But he wants to sue, so he’s hired lawyers. That results in defense lawyers being hired too.
Others,
On the potential for partiality by judges I think a DC judge and a DC jury will find both sides unappealing!
SteveF,
Still, the cognitive dissonance would be a sight to behold.
and…
and this one relates to the “other” Mann lawsuit relating to the “State Pen” joke (albiet that one isn’t in the US)
http://www.aclum.org/news_12.17.12
Maybe Steyn should approach the ACLU…
Come to think of it, with all the “denier” and “death train” rhetoric some favor, the ACLU did defend Nazis in Skokie.
Hmmm….
the question now becomes whether Mann will find another academic post,,,,and the impact on his peer-reviewed papers.
SteveF: The surprise here is that the defense is citing the DC anti-Slapp law, which only came into effect in March of 2011. I wonder if Mann’s lawyers were aware of it. SLAPP stands for Strategic Lawsuits Against Public Participation, and the law is rather specific in its defense of victims of suits like the one Mann has just filed. If you are filing a suit that seeks to harass someone who disagrees with you politically, and Mann is clearly an activist political liberal, you have a tough row to hoe.
I disagree with SteveF’s opinion that the liberal judge will not heed the law. If she does not, she will expose herself as an ideologue, which is not conducive to future advancement or respect in serious legal circles. The law is too precise and relevant to this case. This really is a freedom of expression case, and unless the ACLU view of things has been completely abandoned by Democrat appointed judges, the case will be dismissed.
I’m also struck by the power of the response to Mann’s initial filing, which was pathetically weak in several ways. These guys, the NRO/CEI lawyers, have prepared a very persuasive brief. If I’m wrong and this judge denies the motion to dismiss, the appeals judge will very likely reverse her.
I do not see an unequal playing field here. Anyone who is sued by Mann for libel for expressing an opinion on his work, will likely be able to raise the resources to defend themselves. (I’d be interested in learning how much NRO collected in contributions after it solicited for them this past week.) Mann is a central figure in the CAGW “fraud,” (there i’ve said the word, so sue me if you must, but note that I’ve put the word in quotation marks) and people will pay to see him get his comeuppance.
Totally agree. A stricter interpretation has a society of pot-bellied Americans thinking that they have to prepare to resist government tyranny with their tiny guns.
I see talk about a DC jury. Is it known that this will be heard by a jury?
Maybe instead a bench trial?
The D.C. anti-SLAPP law is very tough.
http://www.citmedialaw.org/legal-guide/anti-slapp-law-district-columbia
The above link suggests that the judge will have to strongly consider dismissing the case, and if she doesn’t, there will be appeals, which are themselves expensive and could take several years to be adjudicated. Is Mann willing to waste his friends money on this? Or rather, how much eco-green money contributed by true believers that will go to waste is he willing to spend on this?
NRO, CEI, Steyn and Simberg themselves have a huge following that will give and give again to pursue this thing. I am one among them. Steyn in particular is a national treasure as is William Buckley’s National Review.
I predict that Mann, if he is not already, will soon be praying the judge dismisses this when his lawyers explain the possible outcomes and the potential cost.
RB (Comment #107604) said:
The living constitution concept fails on logical consistency.
A constitution defines a framework (limits) in which a government must work. It prevents a government from creating certain sorts of legislation — e.g. infringing of free speech rights.
Constitutions are hard to ammend, and that’s on purpose. If governments or courts can simply dismiss a segment of the constitution, or change the meaning of it, then it offers no protection at all. No point at all in having a constitution.
If society changes, such that clauses in the constitution become irrelevent or wrong, then it is time to change the constitution — and all people get to vote on it.
The modern pliable constitution is an insult to the concept of democracy.
Disclaimers:
I am not:
a lawyer
a Democrat
a Republican
a Libertarian
I’m not even an American.
Just a lover of freedom.
How much NRO has raised? $110,000 out of a goal of $150,000 according to their home page hockey stick thermometer.
I suspect National Review will make a profit in fundraising from this lawsuit. Now if they would actually get Mann to trial, that would be worth it.
Kan: and that is without much of a public relations campaign. Mark Steyn sits in for Rush Limbaugh frequently. I’ve heard that Limbaugh has an audience of 20 million. If Limbaugh starts to solicit for the cause, or Steyn does it on his own while substituting for Limbaugh, think of how much they can raise.
Money should not be a problem for the defendants in this case. And I’m not even counting all the other conservative, skeptic organizations out there who could launch drives of their own to raise money for the cause, including Heartland.
I will contribute generously if it goes to trial, but I’m skeptical it’s going to get to that point.
RE: Judge Combs Greene. According to Judgepedia, D.C. Judges are appointed for fifteen-year terms and are then reappointed with mandatory retirement at 74. According to her bio at the D.C. Appeals Court website, Judge Combs Green was appointed by President Clinton in ’98 so she’s up for renewal next year. Would President Obama renew the appointment of someone who found for Mann? And probably even if she found against him? Sure he would (and one more term puts her in the vicinity of the mandatory retirement age). I suspect by this point in her career she’s pretty well off anyway and not in fear of her livelihood.
(I don’t know the mechanics of the process, only what those websites say. Never practiced in D.C.)
J. Ferguson – Mann demanded a jury trial in the complaint. He can change his mind but I wouldn’t expect him to.
RB 107604,
The constitution was written largely to limit the scope of government. If you (or justice Breyer) think those limitations should be modified, then go through the process of modifying the constitution. Yes, I know, that is really hard to do. Much harder than apointing judges who are bent on corrupting the entire purpose of the constitution through verbal contortions. Like most liberal judges, Breyer thinks the law means nothing unless it leads to the “correct” outcomes. He is wrong.
.
Theduke,
Most people do not have the opportunity to raise funds for legal defense, and will think twice about offending Mann.
.
Joseph W,
You are correct, she will be reappointed no matter what she rules in this case. She will do whatever she wants, and that means almost certainly an obvious bias for Manns case. Finding for him would probably lead to reversal on appeal, but she may not give a hoot.
SteveF
But even Mann can’t easily raise funds to pay lawyers to sue everyone. If someone is not very visible, Mann isn’t going to find many donors. But both sides pick their targets and aren’t going to waste their powder on things ‘off target’.
Lucia,
Sure, Mann is not going to file a suit against everyone, but people who have some audience (like, say, Anthony) could very well think twice about what they say about him, if only to avoid the hassle of dealing with him. IMO, the suit is designed to set an ‘example’ for the consequences of claiming Mann’s reconstructions are nonsense. Intimidation, pure and simple.
SteveF
Likely true. Intention: Shut up those with audience. Chatterers will shut up too.
I think even if Mann wins, he won’t achieve that goal– but I think that’s his motivation.
Lucia,
I hope you are right, but I am less sanguine than you. Suppose Anthony honestly believes the evidence is overwhelming, and shows that Mann routinely “lies, misleads, and distorts” to protect his publications, those of his colleagues, and the “it’s worse than we thought” meme the Hockey Team consistently uses. I could be wrong, but I suspect he would not put that honest belief in a post on his blog.
I am with SteveF on this one. I am more interested in how far a liberal judge will go in providing a flexible ruling given a liberal good cause being at stake here.
Mann has been rather obsessive in his defense of his publications as always being right – and in almost every detail. His advocacy for the cause of AGW government mitigation and probably his impatience with the progress towards that end, I suspect puts him in a position of seeing himself as a victim of some vast right wing conspiracy or, at least, a fossil fuel cabal. I would judge that he is not so much interested in punishing Mark Styne or the NR, but rather in making an advocacy point for the cause. That could be accomplished in a court trial without him winning the case and particularly given a predictable MSM spin on the outcome.
To me the most interesting issue is on page 13 of the brief — on the subject of the actual malice standard we talked about before:
“Just because an investigatory panel says that something is so—even if that panel is convened by the government or a public university—does not mean that private citizens have to accept it as the Gospel. Instead, there cannot be liability unless there is ‘sufficient evidence to permit the conclusion that the defendant in fact entertained serious doubts as to the truth’ of their publication…Given the CEI Defendants’ strong views on inadequacy of the Penn State and NSF investigations, Mann’s allegation that they read those reports does not suggest that they entertained any subjective doubt as to their criticism of Mann and his research that could be proven…”
I’m beginning to think that the “even if” should be “especially if.” If Mann wins on that issue, that opens the door to what I’m going to call the Backdoor Sedition Act. Consider –
(1) The government absolutely cannot pass any law to fine or punish you for criticizing its officials or employees, not in this country they can’t, but
(2) The government can appoint boards of inquiry, blue ribbon panels, special investigators, etc. to “investiate” and “clear” its favorite sons of any public accusations of wrongdoing, so
(3) If disbelieving the government’s investigations is evidence of actual malice…enough to get you to a jury…then appointing such investigations opens up anyone who repeats the charges in public to expensive libel suits by whoever is “immunized” in this way.
“We, the government, decided he’s innocent. Therefore shut up or get soaked.”
Joseph W
“We, the government, decided he’s innocent. Therefore shut up or get soaked.”
I think your analysis is spot on, and I do think there is there is a very real chance that is what will happen (the case will go to trial), even if it is overturned on appeal. But having the case overturned on appeal makes no practical difference; there are lots (lots!) of liberal judges who are willing to ignore the law to make a political point; that is why they are called ‘liberal’…. with the law. 😉
I guess I’m the naif here. The anti-slapp statute was written for precisely this kind of case. And while it’s already being vigorously challenged in several cases including one by 3M against Lanny Davis, if the law has any meaning whatsoever, it should be applied in this case. I cannot see a judge violating the plain language of the statute. The brief makes it clear this is an attempt by Mann to intimidate and silence his critics. If deep pockets are all you need to silence your critics, then we might as well just repeal the constitution and let anarchy reign.
OTOH, lawyers are not going to like the idea that cases such as this can be dismissed summarily without the chance to present evidence and make a lot of money, so maybe I’m wrong.
But even if this does go to trial, the chance of Mann prevailing in the end is slim at best. And who knows? He might even be required to pay defendants legal fees, which will be very expensive.
theduke
Their doing so would not be unprecedented. OTOH: it is not routine and at least some rulings are subject to appeal. I’d assume such a ruling would be–but I’m not a lawyer.
I think lawyers are accustomed to the fact that some cases can be dismissed summarily.
Yes, a ruling on a motion to dismiss can be appealed. If Mann loses and the case is dismissed, he can appeal. If Mann wins, and the case is not dismissed, the defendants can appeal, but they probably won’t be able to until after the case is over, assuming it goes all the way to trial and they lose.
A defense lawyer who got a case like this dismissed would like that just fine. (And would get paid handsomely for it, and deserve it.) As a matter of fact, only a small minority of lawsuits filed end up at trial — according to this it’s 2-3%. The others get dismissed, or settled, or something else.
SteveF said:
Assuming this is true, you don’t think conservative judges do the exact same thing? Scalia’s cognitive dissonance between Raich and the ACA alone should dispel this myth.
It’s like the 1980s when conservatives moaned about Gerrymandering, and now that’s the only reason they control the house.Not that Democrats are not similarly inconsistent, but wow if you believe somehow conservative justices don’t bring their own biases to the bench.
I do look forward to seeing how Scalia argues that interracial marriage is okay, but gay marriage is icky enough to ban.
If ever there was a case where I, a skeptic, would contribute my meager funds, it is this one.
Re: Boris (Dec 22 09:00),
They’re human beings after all. The difference as far as I can tell is that conservative judges at least try to be objective at least some of the time. Obviously, being human, they don’t always succeed. Liberal judges, as far as I can tell, think that subjectivity is something to be celebrated.
Boris (Comment #107673)
What is the inconsistency you see in Scalia’s positions. In Raich he ruled against the government, in favor of the pot grower, taking a very narrow view of the commerce clause. In ACA he also took a very narrow view. What do you see as his inconsistency?
John,
I’m no expert, but I believe you’re mistaken. Scalia wrote a concurrency favoring the view that the commerce clause could be used to regulate non-economic activities if the government could show that non-regulation of those activities would interfere with its ability to regulate interstate commerce. I think the government made this case quite effectively wrt the health care law.
Joseph W.:
Warning: There is a difference between cases that “end up at trial” and cases that are resolved by trial. That paper discusses the former, not the latter.
If constitutional law were so “objective”, and we precisely knew what was in the mind of those who wrote the Constitution, we shouldn’t need people to be judges, a parser should do.
Boris
You are correct. I was mixing up Thomas’s dissent with Scalia. However, after reading his opinion, I still don’t see where you see the cognitive dissonance. He essentially states that congress can ” regulate” non economic activity as part of a legislative framework to regulate interstate commerce.
In ACA he says essentially that congress cannot regulate inactivity. I know that may be splitting hairs, but that’s what Supreme Court decisions are always about. If not they wouldn’t make it to the Supreme Court.
Re: RB (Dec 22 17:15),
Oh, but we know a lot about what was in the framer’s minds. There’s the Federalist Paper, for example. And then there’s making up justifications pretty much out of whole cloth in a situation where the states were in the process of dealing with adjusting to changing mores, like Roe v. Wade. We have a potentially similar situation coming up with the Defense of Marriage Act suit. The conservative decision would be to throw out the Federal Law and leave it up to the individual states. Wanna bet that happens?
Boris,
“Not that Democrats are not similarly inconsistent, but wow if you believe somehow conservative justices don’t bring their own biases to the bench.”
.
Everyone has biases and blind spots. The difference I think is that someone like Justice Breyer states explicitly that he is not even trying to follow the original intent of the constitution… it is more like… “Here is what I think the framers would have written if they were alive today.” And I would add, if they were alive today and shared Breyer’s liberal views of what the constitution should say. The constitution makes clear provisions for how it can be changed…. I suggest those who are unhappy with what the constitution actually says have a go at changing it, rather than subverting it via unlimited and ever changing “interpretation” by the supreme court.
.
Conservative judges at least claim to be trying to stay with the original intent of the constitution and specific laws, even if they may not do that perfectly. I disagree frequently with conservative judges; they do sometimes let their personal views influence their decisions. Nobody is perfect, but different judges clearly have very different objectives.
Anyone want to agree with the proposition that CEI and NRO have no malice against Mann? That by itself is going to be an interesting discussion and the comments may get dragged in, as may Steve McIntyre and Massey’s favorite pinata.
Eli Rabett,
Malice: “Desire to inflict injury, harm, or suffering on another, either because of a hostile impulse or out of deep-seated meanness.”
Nah, they don’t have a ‘hostile impulse’ or ‘deep-seated meanness’. I think it is unlikely they care much one way or the other about Mike Mann as a person. They most certainly dislike his advocacy masquerading as science, which invites the kinds of political commentary he objects to. Lightning rods often get hit by lightning.
Eli,
Who is Massey’s favorite pinata?
As for your malice question– are you using “malice” in the sense of the legal standard? Or some other sense? Because actual malice is a term of art at law. And it seems to me that they did not act with actual malice at it is defined under libel law. On the other hand, I don’t think they mind if Mann inflicts harm on himself by pursuing these lawsuits. I don’t think they mind hurting his feelings by airing their views. Some might call that ‘malice’ but it’s irrelevant to a libel case.
“Malice” in this case is a legal term that means that the defendants knowingly defamed Mann without regard to the truth. That they consciously made statements they knew to be untrue.
Anyone who believes that any of the defendants made statements they knew to be untrue in the two blog posts at issue is delusional. I suppose that includes Mann and Eli Rabett.
For example, let’s consider the charge that the Hockey Stick paper and accompanying graph was fraudulently conceived and utilized by Mann and his associates in the IPCC. Does anyone seriously believe that Steyn, Simberg, NRO, and CEI don’t strongly believe that?
Leave it to someone like Eli to confuse personal malice with legal malice as it is defined in defamation and libel cases. Contemptuousness toward someone’s scientific or political beliefs is not malicious in the legal sense of the word. It’s legally protected under the constitution’s guarantees of freedom of expression. Expressing contempt for the deeply held beliefs of others is not illegal. If it were, we’d all be convicts.
Brandon – There is a difference between cases that “end up at trial†and cases that are resolved by trial.
But not a very large one. The pattern I’ve normally seen is that civil cases get resolved either by the judge granting a pretrial motion that ends the case or a pretrial settlement or some combination of the two – for example, the judge grants summary judgment on a big-money tort claim, and the parties then settle the small-money contract claim.
My main point remains – that Lucia was right to say that “lawyers are accustomed to the fact that some cases can be dismissed summarily,” and generally aren’t committed to “rolling the dice” by bringing every case to contested trial.
Eli – For “actual malice” as a term of art in defamation law, see this for a good quick explanation (I linked to it in a prior thread).
“The difference I think is that someone like Justice Breyer states explicitly that he is not even trying to follow the original intent of the constitution…”
I agree this is a major difference, but I don’t see that trying to determine the framers intention should be seen as somehow “better” or more objective. Can we even say that the constitution was written with a single intention? Breyer’s approach seems to require no more guesswork and subjective interpretation than the intentionalists’.
As for the non-economic activity vs. inactivity argument–the important thing for Scalia was that the non-econmic activity impacted interstate commerce. So that would seem to be the important standard–and we know that inactivity in the health insurance market unquestionably affects interstate commerce. The concept of “inactivity” being some sort of right trumping the state’s interest seems to have been invented for that case only.
Eli, gets it wrong again.
See the definition of actual malice. Actually you can read the CEI motion and they cite the most relevant case ( NYT I believe )
But, suppose that judge was as stupid as you are and suggested malice meant
“Malice: “Desire to inflict injury, harm, or suffering on another, either because of a hostile impulse or out of deep-seated meanness.â€
That would probably be very easy to counter. There is a reason why the definition is a term of art.
Re: Pinata – as usual the bouncing burblings are hard to straighten out, but I think Eli will be referring to The Wegman Report.
If so, I’d expect this would be an advantage for a well prepared defence team. They could do worse than start at Steve Mc’s page and work forward from there:
http://climateaudit.org/2007/11/06/the-wegman-and-north-reports-for-newbies/
If they need a starting point on John Mashey’s commentary I’d suggest starting at Retraction Watch where the outcomes of the miconduct hearings against Wegman, as well as the details of the Said paper retraction notice, are given:
http://retractionwatch.wordpress.com/2012/02/24/climate-science-critic-wegman-reprimanded-by-one-university-committee-while-another-finds-no-misconduct/
http://www.sciencedirect.com/science/article/pii/S0167947307002861
To me it seems a bit of a stretch from the issue at hand.
I think we sometimes lose the overall importance of a particular issue in these discussions that tend to deal with specifics. Obviously the primary intent of the constitution was to limit the powers of government. As a libertarian I whole heartedly agree that that limitation is very necessary for maintaining individual rights.
The constitution as framed originally was flawed in some major ways as it allowed slavery and did not protect individuals from state and local governments’ infringements of their rights. All these flaws were capable of correction through the amendment process of the constitution. While slavery was addressed in this manner the application of the protection of individual rights from infringement from state governments was addressed in a less straight forward manner and later in time by using a loose interpretation of the 14th amendment.
Big government advocates, as characterized by the modern day liberals, tend to be impatient with the amendment process and thus have relied on interpretations in the manner of a Justice Breyer. The strict constructionists judges run against my libertarian principles sometimes when they use the original intent of the states’ rights that are federalist system of government provided – or at least originally intended. I cannot fault them for doing what the Constitution intended and their prescribing in effect a change though amendments. Unfortunately for freedom loving individuals both these lines of judging can lead to less freedom.
I suspect that the purpose of the constitution with regards to limiting government power vis a vis individuals has rather long been diminished to the point of no return. Given the intellectual preference towards bigger government and the public’s eventual acquiescence in these matters I do not see an emergence of a preference for a constitutional process that protects individuals from government power. At a recent congressional hearing for approving a justice for the Supreme Court the nominee who was later approved was asked whether the federal government under constitutional cover could require individuals to eat broccoli and her answer did not really rule that out. The recent ruling on ObamaCare made that point rather evident in that the government can require the purchase of a service and without, as the states can currently do for drivers licenses etc., a precondition as in the case of a driver’s licenses that people are using public roads. Further congress and the executive branches can advertise that action not as a tax and yet get the Supreme Court to say that it was a tax and on that basis allow this government coercion. Only if an activist court that activated for less government and without conformity with original intent, would the current intelligentsia advocate for a stricter interpretation of the constitution.
In the case of Mann, I do not know how the courts will rule. It has become difficult to determine in these cases where the law becomes more or less what a judge or group of judges says it is. Libel is not an issue that most libertarians would want to see enforced whereas fraud would be. I do think that many actions, and including name calling, by all sides of the AGW issue detract from the analyses of the science and particularly where bad science has been applied as in the case of Mann.
Kenneth
That’s not quite right. The constitution gave the federal government more power than it had under the articles of confederation. By the same token, it is set up as authorizing specific activities and — in my view– excluding those powers not authorized. The federal government was certainly granted less power than monarchs had in monarchies of the time– but they were granted certain powers. So, the primary intent was to grant the federal government specified powers while withholding other powers– delegating those to the individual states (or people).
Our constitution also has many checks (and balances) to try to prevent any single branch (or person) from acquiring too much power over each other (and over individual states.)
I’m not sure you are correct to say libertarians don’t want libel enforced. I think this is one of the subjects where the US is close to the libertarian ideal. Libel is enforced– but with very strong protections for freedom of speech. We’ve always recognized truth as a defense (which was not the case in the UK ). The courts carve out wide latitude to permit people freedom to express opinion, hyperbole, and any speech that touches on political issues relevant to the public interest.
But, if I go around telling people my neighbor is a convicted ax murdering child molester, my claim isn’t true, he can sue me for libel and win. If my lies caused harm to his reputation or livelihood, he could win substantial damages. He should be able to do so, and I think many libertarians would agree.
Minor correction, Lucia. Libel is defamation that can be seen, as in something printed. Slander is defamation that can be heard as it is spoken. Describing your neighbor in the manner you have postulated is slander and not libel.
theduke–
Thanks. I always get the two mixed up. Anyway…. he could sue me either way.
lucia (Comment #107716)
I claim only to speak for myself on libertarian issues as there is no official party line – thankfully. The link below is a dissertation by libertarian Murray Rothbard on the issues of libel and slander. The critical factor in these matters with Rothbard and some libertarians, but not all who might claim to be libertarian, is the concept of individual property rights.
Rothbard, also makes the cogent point in the excerpt below that surely must bother even those who might be looking for something less arbitrary in the case of libel.
“At the present time, the courts distinguish between persons “in the public eye†who are adjudged not to have a right to privacy against being mentioned in the public press, and “private†persons who are considered to have such a right. And yet, such distinctions are surely fallacious. To the libertarian, everyone has the same right in his person and in the goods which he finds, inherits, or buys—and it is illegitimate to make distinctions in property right between one group of people and another. If there were some sort of “right to privacy,†then simply being mentioned widely in the press (i.e., previous losses of the “rightâ€) could scarcely warrant being deprived of such right completely. No, the only proper course is to maintain that no one has any spurious “right to privacy,†or right not to be mentioned publicly; while everyone has the right to protect his property against invasion. No one can have a property right in the knowledge in someone else’s head.”
http://mises.org/rothbard/ethics/sixteen.asp
You are correct that the US Constitution spells out a government not as limited as the Articles of Confederation – and much to the chagrin of many libertarians. The act of spelling out the functions of government was in effect a limitation on government powers.
Certainly we have waivered and continue to do so with regards to limiting governments power over individuals and their freedoms. We rid ourselves of slavery and yet allowed our government to draft people into military service and to tax individuals at unlimited rates. We had the Sedition Acts during WW1 under the Wilson administration and the imprisonment of Japanese Americans during WW II.
How many times do we hear the phrase in Federal court decisions including the Supreme Court of “as may be necessary to carry out its functions” (government that is). It seems in most cases the capability of the government to function and use its powers outweighs any considerations of individual liberties.
Kenneth–
But I’m a bit confused. This seems like a subject change vis. defamation. Defamation is not the same as invasion of privacy. If I went around telling slanderous lies about my neighbor the defamation suit wouldn’t revolve around any accusation that I invaded his privacy it would be about my telling lies that cause him harm. The harms might be to his ability to earn a living (which is related to a property right) or his standing in society– which is often not judged an economic issue- but sort of is.
“At a recent congressional hearing for approving a justice for the Supreme Court the nominee who was later approved was asked whether the federal government under constitutional cover could require individuals to eat broccoli and her answer did not really rule that out.”
I’m not sure why this upsets people so much. The government can already tax everything you earn, conscript you in to the armed forces and send you off to die, tell you who you can and can’t marry..and yet people complain that they could theoretically force you to buy broccoli. It seems like such a minor thing to worry about given everything else the government does.
Also, i wouldn’t characterize liberals as the only big government side since we believe in a much smaller military and wider civil rights.
Boris
The government having the power to dictate my eating broccoli bothers me. Conscription and taxation are powers that have been specifically granted to the government. (The former through providing for the common defense.)
Unless someone can connect forced broccoli consumption to a specific power granted the government, it would bother me a lot for the government to be permitted to compel behavior when they have not been granted the power to do this. It would also bother me if the ability to compel broccoli consumption was interpreted to be permitted under the commerce clause. Other things I do not see as falling under the commerce clause:
1) Abortion (either compelled as in China, or banned as some would like to do.)
2) Marriage (either compelled as I believe on religious leader implemented it for his flock or banned or regulated.)
3) Fashion choices of any sort. (Jeans? Dress slacks? Skirts?)
I could add to the list of things I do not wish to see falling under the commerce clause (many of which I do not want to see the federal government getting involved with.)
Most generally these laws are done at the state not federal level. Miscegenation laws were banned in Loving v. Virginia. So neither the state nor the feds can’t make that choice for you.
Is your concern gay marriage? That’s slated to be heard. (I hope SCOTUS decides gays can marry or at a minimum, they decide states can permit gays can marry if the state so chooses and decrees that the feds must recognize that marriage as existing for purposes of things like Fed. taxes, social security and so on.)
Is your concern laws minimum age requirements, incest laws preventing you from marrying your sibling, polimory and so on? Or something weirder (marrying your horse, favorite ash tree or chair? ) Those are generally at the state level. I don’t see any problem with the state having laws that restrict the rights of minors to marry (provided they define the age of majority reasonably, which as far as I can tell, all of the US states pretty much do) nor with failing to recognize marriages with non-humans.
Incest laws are the closest to borderline. I could see where those require some degree of scrutiny Certainly, it would be odd if the laws prevented marriages between 5th cousins. (Few people even know who their 5th cousins are.) At the same time, there is clearly are dangers in letting parents marry their own adopted or biological children. But the states, not the feds deal with this. And I think that’s best left in their power– not the feds.
Lucia, libertarians will disagree with other libertarians on these issues and one side will use much the same argument you do here. The Rothbard article does not go back to the basic premises of private property rights and his application of that fundamental right to other issues of ethics and the law. There is a major disagreement amongst libertarians on intellectual property rights.
The Rothbard stand on these issues, whether you agree with them or not, does avoid a lot of arbitrariness that evolves from the currently practiced law concerning these issues. We arbitrarily say some people are exempt and some are not from libel. We say some people are forced to provide information to the government and some depending on profession have a right to withhold that same information. We arbitrarily put a lifetime on patents and copyrights and extend it over time.
We argue whether a Michael Mann can be libeled when most reasonable people would much rather have the public understand the extent of the uncertainty that arises from his scientific efforts and gross statistical and methodological errors that led to his conclusions. And more importantly the silent acquiescence of most of the climate science community in these matters and the problems arising from mixing advocacy with science.
Boris (Comment #107747)
“I’m not sure why this upsets people so much. The government can already tax everything you earn, conscript you in to the armed forces and send you off to die, tell you who you can and can’t marry..and yet people complain that they could theoretically force you to buy broccoli. It seems like such a minor thing to worry about given everything else the government does.
Also, i wouldn’t characterize liberals as the only big government side since we believe in a much smaller military and wider civil rights.”
First of all, Boris, I would hope that all these issues would bother people. The issue of broccoli was not meant to be specific but rather to point to the lack of restriction of the governments powers.
Certainly some conservatives have a problem when it comes to limiting military spending, but when all is said and done we have a liberal as President who has done little to reduce military spending and our military presence in countries which have long been forgotten as adversaries – like Japan, Germany, and Korea.
Unfortunately the bipartisan agreements often appear to be: Let us conservatives/liberals spend on our favorite programs and I’ll vote for appropriations for your favorites.
I assume that civil rights would include First and Second Amendment rights as in spending as much money as one wants on political issues and campaigns and as in gun ownership. A number of liberals also seem okay with a draft and particularly if it involves service to the government doing something of which the liberals approve.
Boris,
“The government can already tax everything you earn”
This goes back to the origins of the city/state. Originally ‘cities’ were walled enclosures. The ‘city’ provided a safe place to engage in commerce and mechanisms for dispute resolution.
If one wanted to live withing the walls of the city then one had to ‘pay a tax’ and agree to abide by the rules and regulations of the city state.
Living and working in the city and paying a tax was generally preferable to living outside of the city gates, as outside of the city gates there was no law.
No one was ‘compelled’ to live within the walls of the city, it was an act of ‘free will’.
The fundamental problem with any federal law or tax is that I really don’t have a viable option of moving outside the gates of the federal boundary. Hence, federal law needs to be the least restrictive.
Kenneth
As far as I am aware no one is exempt from libel. We say that the standards for libel can differ. Public figures can sue for libel and win– but some standards of proof differ and the issue of “actual malice” kicks in.
There may be a difference of opinion on IP. In fact, I’m sure there is. But IP has nothing to do with defamation. Mixing in discussions of private property rights and/or IP rights only confuses the matter with respect to libel and defamation.
We can discuss one of the other– but I think if we are going to discuss libel, it is best to stay away from the entirely different topic of IP.
Boris:
Am I the only one who notices Boris changed the subject? Kenneth Fritsch referred to a judge commenting on the possibility of the government requiring “individuals to eat broccoli.” Boris played this down, saying “people complain that they could theoreticqally force you to buy broccoli.” There is an enormous difference between having to buy something and having to eat it.
For example, the taste of broccoli makes me sick. Buying broccoli costs me money; eating broccoli makes me throw up.
The government taking money from me is not the same as it forcing something down my throat.
Boris–
Overall, libertarians tend to be much stronger supporters of civil rights than are liberals who– like many social conservatives– like to pick and chose which civil rights they support. Some liberals characterize libertarians as “conservative” — but if they fall in that group, then conservatives support civil rights every bit as much as liberals do.
Brandon–
I don’t think the government should be permitted to force me to buy broccoli either. Nor eggs, wool, acrylic, sweaters or pretty much anything. Especially not if they claim they are requiring this under the commerce clause. (There is a remote possibility I might recognize the feds have the power to force me to buy something because it’s required to ” provide for the common Defence”. But there had darn well better be some good argument that my buying (or owing or having access to) said item does contribute to “the common Defence”.
lucia, I agree. I was just pointing out degrees of wrongness. Forcing people to buy broccoli is pretty severe, but actually forcing them to eat it? Crazy.
Brandon–
I like broccoli. But I agree with you. I hate beets. I would hate it if someone tried to force me to eat beets. I don’t want to buy, grow, sell or eat beets.
EINAL but he did not go to sleep during high school (he saved up for later). Limitations on the Federal Government contained in the Constitution, for many years (like a century or more) were not held to be limitations on state governments which were able to do pretty damn much anything they wanted to internally. It was only through interpretations of the Supreme Court that the Bill of Rights was extended to cover the actions of States with respect to individuals. Darn activist judges
My point about the broccoli discussion is that the government can already effectively force you to buy or eat broccoli with its current powers. The government could ban the sale or cultivation of all other foods except for broccoli. It could make foraging and hunting illegal. All of that is about as likely as the government forcing individuals to eat broccoli. (And technically we are talking about compelling, not forcing, because the ACA only proposes a small fine with limited enforcement.)
The people who were upset about a possible expansion of government power under the commerce clause wrt health insurance were simply worried about nothing–the government had and has those powers already. And the argument that “If we allow this, then the government could implement a stupid policy” is not a very good legal or logical argument since the government could always implement a stupid policy.
Boris,
” since the government could always implement a stupid policy”
.
Could?
Boris–
It can? How?
Drafting someone into the army is not “effectively forcing them to buy or eat broccoli”. Neither are laws on marriage. I don’t see how the government can force such behavior– and I certainly don’t see how anyone was supposed to infer your ‘point’ from your previous comment.
In the end, the ACA was upheld– under the taxing power not the commerce clause. If your “point” is many things could be encouraged by requiring people to pay taxes– ok. But if I’m not mistaken, the court skirted the “broccoli” issue by decreeing the ACA was a tax and treated as a tax. Moreover, turns out people are not required to buy insurance. They just have to pay more taxes. So, it is interpreted as equivalent to tax breaks for certain behavior (though it is described kinda-sorta backwards. You pay more if you don’t do x. In contrast with “breaks” it worded that you pay less if you chose to do x.)
You have this a bit confused. SCOTUS didn’t find the government has the power to compel activity (or regulate inactivity) under the commerce clause. The government is recognized to have tax powers– which is a bit different. The courts did not decree that the government can compel action or forbid inactivity. But they can levy taxes.
Possibly so. That might be why this argument was not the argument presented to SCOTUS!
lucia (Comment #107752)
“As far as I am aware no one is exempt from libel. We say that the standards for libel can differ. Public figures can sue for libel and win– but some standards of proof differ and the issue of “actual malice†kicks in.”
You make my point: No one is exempt but yet it depends on who is regarded as a public figure and that can be arbitrary.
“There may be a difference of opinion on IP. In fact, I’m sure there is. But IP has nothing to do with defamation. Mixing in discussions of private property rights and/or IP rights only confuses the matter with respect to libel and defamation.”
My point is that both libel and intellectual property rights are considered by Rothbard libertarians from the the same basic premise, i.e. individual property rights. But that is as you suggest for another discussion.
“And the argument that “If we allow this, then the government could implement a stupid policy†is not a very good legal or logical argument since the government could always implement a stupid policy.”
Boris, not really since the issue was brought to the Supreme Court to rule on and there were at one time 5 Justices who were going to rule that indeed this was a step too far – until one decided that if you can regard the penalty for non compliance as a tax and not a fine and further even if the legislation was passed based on it being fine, the government can implement stupid.
policies and restrictions on individual liberties.
I think many forget that Justice Roberts also got a majority to agree that there are limits to what the Federal governments can force the state governments to do.
So Boris it was not exactly the no brainer you seem to think it was.
“It was only through interpretations of the Supreme Court that the Bill of Rights was extended to cover the actions of States with respect to individuals. Darn activist judges.”
You are quite right, but it should not be forgotten that states also had constitutions and that some had in effect Bills of Rights. While I agree that those Bill of Rights help protect individual rights and find it problematic that those rights were not extended to states from the beginning, it must be remember that what the activist judge giveth she can take away.
Kenneth-
If you mean that sometimes we can’t see a bright line, that’s true. But that’s not unique to libel. Sometimes there are borderline cases. The president of the united states is certainly a public figure and there is good reason to permit wide latitude in public speech about him. A private person, working as a garbage collector who has never so much as written a letter to the editor is not a public figure. Do courts sometimes have to decide fine cases? Yes. But that’s not quite the same as saying it’s ‘arbitrary’.
Well, maybe they do. But landownership and bicycle ownership area also individual property rights. Nevertheless, as property, real estate and IP have distinct differences. Likewise, IP and “privacy” differ from each other and “reputation” differs from all the others. At least in the US, libel is different from invasion of privacy.
” It was only through interpretations of the Supreme Court that the Bill of Rights was extended to cover the actions of States with respect to individuals.”
All the while ignoring the 10th amendment.
Eli Rabett (Comment #107762)
It wasn’t the activist judges. Rather it was the civil war constitutional amendments which created the incorporation doctrine. (Mainly the 14th amendment). Look it up.
lucia (Comment #107779)
I think we are talking at cross purposes here with you being on topic and me being off. You are stating what the currently held legal status for libel is and I am talking about a political view that is certainly not currently embraced by many. I tend to look at these issues as what could be first and then what is. I would agree with your veiw of what is in this case.
I would suppose then that we can all agree since the application of the law in libel cases is not arbitrary that Mann’s case will be summarily dismissed – end of discussion.
RickA (Comment #107781)
“It wasn’t the activist judges. Rather it was the civil war constitutional amendments which created the incorporation doctrine. (Mainly the 14th amendment). Look it up.”
Actually the application of some of the Bill of Rights to the states was an act of judicial interpretation that occurred over time. The original intent of the 14th Amendment was to insure that the Federal government could enforce its laws that primarily dealt with the abolition of slavery. The court actually ruled against the incorporation doctrine after the passage of the 14th Amendment. Parts of it like the 5th amendment were ruled not part of the incorporation doctrine. In a recent Supreme Court ruling on the application of the Second Amendment to state gun laws, the issue of incorporation of that amendment was discussed. It was not universally held that all the Bill of Rights amendments were incorporated. And guess what. It was mainly liberals who favored strict gun laws and otherwise preferred judicial activism who saw incorporation as a pick and choose process. I would suppose that there are conservatives who would favor incorporation with regards to the Second Amendment.
Talk about arbitrary.
http://www.uscourts.gov/EducationalResources/ConstitutionResources/LegalLandmarks/JudicialInterpretationFourteenthAmmendment.aspx
Kenneth–
I’m both saying what the current view is and also looking at the issue. Some may hold the view that somehow IP and libel have a lot to do with each other. I don’t see them as being particularly related. Yes, both are “intangible property” issues. But that doesn’t make them merged at the hop. The deals with real estate and silverware/furniture/clothing differently. Real estate transactions are registered, in most (all?) states, real estate transations must be in writing. This isn’t required if you sell your mothers old silverware on ebay. We do this because– though both types of property are tangible, they have important differences.
I think– as a matter of political view– not merely current statutes, IP and libel are more different sorts of ‘properties’ than real estate and silverware. Heck, I think IP and libel are more different than IP and real estate! (Libel is related to privacy to some extent. But there are distinct differences. Those differences are important, affect american libel laws and have since before the American Revolution.)
Kenneth
I think there is some disagreement on this. Some people think incorporation was intended when the 14th was written and ratified but that early courts would not enforce it. Others think otherwise. So… we could argue whose interpretation was “activist” or “inactivist”. I don’t know the history of ratification enough to know what was intended.
That said: I agree that it doesn’t make much sense to pick and chose which of the bill of rights the 14th amendement “incorporates”. Why the 5th and not the 2nd? I don’t know. I guess it depends in the right to bear arms was ever considered individual rather than the right of the state to form a militia. (I tend to imagine the right was for individuals to bear arms. But that might not be so. It’s possible the concern was that since the feds were given the power of defense the states might be seen to be deprived of that right. I don’t actually like guns myself– and I’m not all that involved in 2nd amendment arguments. But, I do suspect it was intended as individual– and open to persuasion otherwise. )
lucia:
Which brings up another point, which is how it comes to be that anybody can ever claim to understand the “original intent” of a document collaboratively written and agreed to, especially documents like either the US Constitution or the 14th Amendment that have such tumultuous histories.
Carrick–
Historians might be able to dig up discussions from newspaper articles, logs of debates in congress or state houses and such like. You can also point to “original meaning”– which I think is at least a bit better than “original intent”, but clearly related.
Presumably the language of any amendment or statute is meant to convey something and its interpretation should at least fall in the general vicinity of that. I can say that if the intention of the 14th amendment was to incorporate the bill of rights they could have worded things a bit more clearly. Reading it I can see how one can either think it incorporates the bill of rights or that it does not. I can’t see how one could think it incorporates the 5th but not the 2nd. On the other hand, the fact that rulings have incorporated amendments one at a time doesn’t mean any individual person thinks that some amendments are incorporated and others aren’t. It only means that often rulings are narrow and the balance of judges ruled one way in a particular case, and the balance of a slightly different set of judges ruled a different way in another case.
“Boris, not really since the issue was brought to the Supreme Court to rule on and there were at one time 5 Justices who were going to rule that indeed this was a step too far…”
Well, of course they thought it was a step too far–they didn’t like the policy. The conservative justices on the Supreme Court created a new limitation on the commerce clause out of nothing, a limitation counter to precedent– and in Scalia’s case a limitation that was unambiguously in contradiction to a previous ruling he had made. And with this new arbitrary limitation, they would have struck down completely a law passed by the duly elected legislature. If that isn’t legislating from the bench, I don’t know what is.
The fact that the penalty for not buying insurance can be made into a tax and then the constitutional issues go away should tell you that the objections over the ACA were about process and not any great loss of freedom.
“It can? How?”
The government could levy taxes on all other foods. The government could probably ban the cultivation of all other foods.
The arguments about expanding the commerce clause were just about process–no real freedoms would have been lost if the court had rule the commerce clause was comparable with the ACA. It’s crazy to me that the law was almost completely struck down on what amounts to a technicality. That isn’t judicial restraint.
Lucia, I do think “original meaning” might be better choice of language. After all, just because somebody wrote it with one interpretation in mind, doesn’t mean the way they translated that intent to paper faithfully describes their original intent.in
But I think to even make “original meaning” assessments, you’d have to have some sort of poll of the interpretation of the amendment as ratified by the voters. Needless to say, using any such poll results in the interpretation of the meaning of a constitutional amendment would itself be extra constitutional. Similar remarks apply to trying to use the Federalist Papers to interpret the Constitution…this would seem to be equivalent to absorbing the Federalist Papers into the Constitutional framework itself.
Carrick
Yes. That’s where newspaper articles, transcripts of discussions in state halls matter. To some extent discussions in state hall tells us more about what the language communicated that reading what the writers think it meant. After all, the thing has to be ratified and if it “meant” something different from what they thought it meant, that’s a problem. (I think this is similar to in contracts. When language is ambiguous, we favor what the person who did not write it interpreted it meant rather than what the person who wrote it claimed it meant. )
True. But there is nothing to say the justices can’t look to original meaning/intent when they interpret something.
The idea makes a bit more sense than an interpretation that says the meaning evolves.
Of course, applications evolve. So, for example, we can’t begin to know what Madison would have specifically thought of application of the 4th amendment to the “moocher hunter” case ( http://www.volokh.com/2012/11/19/united-states-v-stanley-and-the-fourth-amendment-implications-of-using-moocherhunter-to-locate-the-user-of-an-unsecured-wireless-network/ )
The fact that applications evolve make it a bit difficult to discuss the “living constitution” vs “original meaning/intent” and so forth.
Re: Boris (Dec 25 11:52),
The entire law would have been struck down because that’s the way it was written. Most complex laws have severability built in. ACA didn’t. If one tiny part of the law was unconstitutional, the whole thing was gone. They wrote it that way on purpose to intimidate the court. It worked. Judicial restraint had nothing to do with it.
As far as the commerce clause, please cite a previous ruling that the commerce clause applied to failure to engage in commerce. Some positive action was always involved like growing wheat in your back yard.
The ACA tax vs. mandate issue brings up another constitutional issue. Tax and spending bills must originate in the House. It can be argued that ACA originated in the Senate. Changing the mandate to a tax, in that case, would also seem to invalidate ACA on constitutional grounds. Yes, it’s a technicality, but given the lack of severability in the law, that’s the way it works.
I think the terms used in discussing how a constitution should function sometimes detracts from what strategies have been used to avoid the onerous amendment process. It is reasonable to assume that a constitution as applied to a republic is written to make it difficult to amend and as such was certainly not intended by its authors to be rewritten by what a justice might flexibly deem is proper at a given point in time. A constitution with an original intent in limiting the powers of government and protecting individual rights is going to be structured to avoid a currently evolved majority from imposing their will on the individual. That imposition could come in the form of an easier amendment process or by flexible rulings from the court.
Of course some see the constitution as a hindrance to actions they see as legitimate for government, but for those who claim the constitution should limit government, I can see them thinking that a necessary but not totally sufficient condition is to retain what is perceived to be an original intent of the document and otherwise change it by amendment. The totally sufficient part comes from the problem of justices picking and choosing what they might consider was the original intent.
One evidently has to ask the question whether a written constitution can truly and over a long period of time constrain the powers of government given the human element of wanting the government to (attempt to) solve many if not most of their problems. In my view the answer is no.
“The ACA tax vs. mandate issue brings up another constitutional issue.”
It was loads of fun to read the logic used to rule the ACA was not a tax under the Anti-Injunction act, but was a tax otherwise. We now know what a square circle looks like.
Eli Rabbet wrote: “It was only through interpretations of the Supreme Court that the Bill of Rights was extended to cover the actions of States with respect to individuals. Darn activist judges”
And to do that, the “activist judges” had to violate the Bill of Rights. Check the ninth and tenth amendments. Oh the irony . . .
“As far as the commerce clause, please cite a previous ruling that the commerce clause applied to failure to engage in commerce. Some positive action was always involved like growing wheat in your back yard.”
Who cares? That’s an invented standard. The adverse selection problem affects interstate commerce enormously. If your inaction affects interstate commerce, the government should be able to regulate your inaction, plain and simple. Not buying health insurance affects the market far far more than growing pot for your own medical use.
Boris–
The idea that growing stuff for your own standard falls under the commerce clause because affecting interstate standard is interstate commerce is just as ‘invented’ as the issue of activity vs. inactivity.
Carrick asked about original intent.
It is not an easy task.
Take the 8th amendment prohibition on cruel and unusual punishment – which has been incorporated and applies to the states.
There is a lot of historical information on punishments which are considered cruel and unusual. Things like the rake, the iron maiden, keel-hauling, death by a thousand cuts, drawn and quartered, and so on. Mainly things designed to make death a torture, rather than just execution.
So torturing people as part of executing them is clearly what history teaches us is cruel and unusual.
Cutting their head off, hanging them, shooting them were all considered not to be cruel and unusual.
The electric chair, gas, lethal injection are more modern ways to execute, but the electric chair is out of favor lately.
So that forms a backdrop which the courts use to judge whether a current practice is cruel and unusual.
The death penalty per se was never ruled unconstitution – just the manner in which it was applied.
Now, we debate whether the three shot lethal injection is cruel and unusual because the second shot may create pain when it stops the heart.
In fact, some prisoners sue, arguing all kinds of things are cruel and unusual (no cable tv in each cell)(no air conditioning).
But it really does make sense, when trying to figure out the words of the constitution, to look back at the historical context.
Lucia–
Maybe, but at least it’s precedent.
The meaning of a sign is the response to the sign.
everything else is a fairy tale we tell ourselves about textual interpretation
Boris
So? It wasn’t the first time it was proposed.
Generally close questions arrive at the Supreme Court. It is often the case that some aspect of the case is an issue for which no precedent exists. People introduce arguments for why it is allowed or not. You can call these new arguments “invented” or whatever you wish. But if they are “invented”, then it is the case that arguments for expansion of powers or rights are always “invented”. Either these “invented” notions are accepted or rejected. But the “invention” (if that’s the worse you want to use) is the SOP for operation in SCOTUS.
I happen to think “invention” is not a particularly good word to describe what’s going on. But trying to tease out what “commerce” covers does require people figuring out the attributes that make something “commerce” vs. “not-commerce”. Activity vs. inactivity is worthy of discussion.
In the recent case, the issue of “inactivity/activity” was skirted because it was decided that ACA was a tax and so that issue was irrelevant.
lucia (Comment #107804)
“In the recent case, the issue of “inactivity/activity†was skirted because it was decided that ACA was a tax and so that issue was irrelevant.”
I am not going back to read the rulings on this case but I think that you would have had 4 Justices that would have ruled favorably on ACA and judged that inactivity would indeed affect interstate commerce and 4 Justices that would have and probably did rule that inactivity is a step too far. In the end 1 Justice ruled using the tax argument and even in the face of congress and the administration selling the program to the voters based on its not being a tax.
It is a learning experience in this ever changing view of government power over the individual. Yes, the government can require you to purchase broccoli but only if the government calls it a tax – no wait a minute here that would be if one Supreme Court Justice can call it tax. There are probably 4 Justices that would not even require that but rather only to show that not buying broccoli affects interstate commerce and who could argue with that since it must affect commerce if only a tiny, tiny bit. And, of course, it is only through the benevolence of these 4 Justices (and the taxing Justice) that we can feel relieved that if someday we need our populace to be chomping down broccoli, and for their own good, the government will have the power to encourage you to eat it through more than words. And further if we can only appoint more activist Justices we will not have refer to that encouragement as a tax but rather as something more palatable as perhaps a healthy fee or even a contribution to societal good health. Perhaps we need a presidential campaign where Bryan’s “Cross of Gold†speech becomes the Cross of the US Constitution.
Re: Boris (Dec 26 08:02),
You are aware of Wickard vs. Filburn aren’t you? Adverse selection will apply in spades to the ACA because it’s extremely unlikely that the ‘tax’ will be as high or higher than the cost of insurance for anybody and certainly not for the population with low income, especially given the other parts of ACA that increase the cost of insurance. If you can buy insurance at any time and the cost of not buying insurance is lower, you will end up with only sick people buying insurance.
lucia (Comment #107804):
“In the recent case, the issue of “inactivity/activity†was skirted because it was decided that ACA was a tax and so that issue was irrelevant.”
I have to disagree with you.
The court actually ruled that the commerce clause did not cover creating commerce in order to regulate it. So the Court explicitly found that the ACA was not supported by the commerce clause.
You are correct that they upheld the ACA based on the taxing power of congress. But I don’t think “skirting” is actually what they did.
RickA–
Ok. I admit I could be mistaken. I knew it was upheld under taxing power.
Boris states – “If your inaction affects interstate commerce, the government should be able to regulate your inaction, plain and simple.”
Boris my company makes widgets. Do you own one of my widgets? If you don’t, given your view, you should. I know both Senators from my state personally. I will entice them to get a law passed such that you, and all other 300M Americans, need to own my widgets (preferably more than one) It will help interstate commerce immensely. I promise.
Kan (Comment #107809)
I think you jest, but if you can garner enough support for everyone needing a widget and you can get Congress and a friendly administration to sell the idea based on people not knowing enough on their own to own a widget and you can guide them through a process where they refer to a penalty of not owning a widget as fee and yet have a Supreme Court Justice call it a tax, your jest is no longer a jest.
I have been getting my necessary widgets on an emergency basis and at taxpayers’ expense so you might want to use that argument to sell your widget scheme.
What was upheld was that a tax could be imposed if a person did not buy insurance. That is slightly different, and IEHO is not much different from allowing people to deduct charitable contributions.
Eli Rabett (Comment #107812)
“What was upheld was that a tax could be imposed if a person did not buy insurance. That is slightly different, and IEHO is not much different from allowing people to deduct charitable contributions.”
Then why did not Congress merely give a tax deduction for buying insurance. Oh, that’s right they already do.
The main strategy was to get sufficient numbers of healthy and young people into the insurance pool and then charge them the same rates as those who were old and unhealthy. The insurance companies wanted this provision and the Democrats complied. That’s more like conscription where the old send the young into battle.
I found a good transcript of the Supreme Court ruling on Obama Care in the link below. It touches on many of the issues we have been discussing here.
And by the way congress called the penalty for not purchasing insurance a “shared responsibility payment”. They have gotten the euphemisms down pat.
The transcript notes that a precedent exists for a past Justice’s preference for giving the wording in congressional legislation every benefit of the doubt in the court’s ruling so as not to strike it down. That is how Roberts was able to call the penalty a tax when congress and the administration refused to call it that. What a wonderful and magnanimous jester on his part albeit not so clear with regard to separation of powers.
http://blogs.kqed.org/stateofhealth/2012/06/28/full-transcript-supreme-court-decision-on-health-care/
Re: Kenneth Fritsch (Dec 26 19:42),
Given the Law of Unintended Consequences derived from the fundamental principle that Irony Increases, it won’t work. In fact, the insurance pool is likely to decrease as companies drop their health insurance plans because the ACA requires a gold plated policy that they can’t afford and the healthy and the young realize that it’s cheaper to pay the tax than buy insurance. Especially since you can, under the ACA, buy insurance at any time. That initiates a death spiral were eventually only the sick will buy insurance. Wanna bet that the insurance companies don’t get a dime from the ACA tax revenue? Well, other than to subsidize premiums when people who can’t afford them get sick and buy health insurance.
Eli
I think that’s pretty much the POV of SCOTUS in their ruling.
There are– of course– some requirements for tax laws (like where the bill must originate and some other issues). Also, I think there is precedent touching on what happens if the “tax/fine” were to get too high. But, pretty much, I think it was upheld because paying a tax for failing to do something is pretty close to just being the flip side of getting a deduction for doing something.
I’ll contribute if this case gets to trial and it’s actually Mann’s science on trial. If not and Mann claims vindication, well stay tuned…
DeWitt Payne (Comment #107815)
Unintended consequences occur so frequently in these government programs that one would hope that these matters would be discussed before passages of the bills. Nancy Pelosi probably had it mostly correct when she opined that they needed to pass the bill so what it contained could be revealed. I also believe that the regulations and details for carrying out the ACA mandate were left open so that what was voted through congress and signed into law by the President is not necessarily what you will eventually get. I suspect if the bureaucrats in Washington and perhaps the MSM (doubtful on the MSM) figure out what might be a show stopper as you describe here they will go back in do something like raise the penalties on young people who might otherwise forego the insurance mandate. I am also thinking that that could occur without going back to congress for further legislation on the matter. If so it was an unintended/intended consequence for the President to garner a large majority of the youth vote and then go back after the election and impose a greater tax on them.
The link below details some of the tax increases and consequences that will go into effect in 2013 as provisions of the ACA.
https://www.tiaa-cref.org/public/advice-planning/market-commentary/get_wise_articles/articles/gw_0081.html
Re: Kenneth Fritsch (Dec 27 10:21),
Have you read Thomas Sowell’s The Vision of the Anointed: Self-Congratulation as a Basis for Social Policy? Obviously not or you wouldn’t make that statement.
That book is very polemical in style. If you want basically the same thing toned down, there’s:
A Conflict of Visions: Ideological Origins of Political Struggles
In spite of all evidence to the contrary, politicians of all stripes assume unintended consequences of the legislation they propose don’t exist. See for example the War on Drugs. Illegal drugs are cheaper and more available now than before. My corollary to the LoUC is that the faster and larger the change, the more likely it is that the legislation will accomplish the exact opposite of what was intended.
DeWitt Payne (Comment #107820)
“Have you read Thomas Sowell’s The Vision of the Anointed: Self-Congratulation as a Basis for Social Policy? Obviously not or you wouldn’t make that statement.”
I have read quite a bit of what Thomas Sowell has written and I would agree that the politicians in Washington and in general are either very slow learners or non learners and particularly when it comes to unintended consequences. The basic problem is that they have great faith in government solving problems and that many of the voting public expect government to solve problems. When these programs fail and/or result in unintended consequences the answer is usually more of the same and never having to say the program has failed.
I have heard many politicians of late totally deny that we have problems with financing future promised benefits for SS and Medicare. Who is left to question these politicians. It certainly will not be the MSM or the ruling intellectual class as they love big government also and are its staunchest defenders.
Re: Kenneth Fritsch (Dec 27 15:34),
That is exactly the thrust of Sowell’s books. Only he goes into more detail on other phases of the process like the initiation of the process by declaring something is a now a crisis in spite of the fact that nothing much has actually changed. A solution is then asserted, generally without any evidence that it might work. People who point out that the solution may not actually work or have other undesired consequences are vilified rather than having their objections taken seriously. Then when the opponents predictions come true, they have somehow gone down the memory hole and, as you say, the response is that we need to do even more of the same. See for example gun control laws on one side and drug laws on the other and overly restrictive immigration laws on both as they are supported by labor unions and nativists. Apartheid in South Africa was pushed by the white labor unions.
“Apartheid in South Africa was pushed by the white labor unions.”
Where’s the roll eyes smiley? It was pushed by the white Afrikaners Christians, including the white Afrikaner unionist Christians. If you only want to blame the unions, (that is, the “Marxists” is what you mean) I am sure you can only look there and pick just the cherry you were after.
Re: bugs (Dec 27 17:24),
How about NAFTA was opposed by US labor unions instead. And in particular, the Teamsters were able to block Mexican trucks crossing the border for ‘safety’ reasons. And where did Marxist come from?
DeWitt Payne (Comment #107815)
DeWitt,
I don’t think it was unintended that people would game the system and sign up for healthcare only when they need it. My guess is that they will simply increase fines over time – always by too little to make the difference. In the meantime, we saw approximately a 20% increase in rates for our group healthcare. We provide a high-end policy for our employees at no cost to them or their families.
I have developed the opinion over time that Obama is collapsing the economy with intent to create as many government dependents as possible. Every action he and the democrat party takes is so anti-business, it is hard to see any other possibility. Were it simply incompetence, he would get it right on occasion, but that isn’t happening. For instance, a 2.8% tax on GROSS sales of medical equipment manufacturers is more like a 10-20% income tax hike. Putting additional ‘tax the wealthy’ increases on the medical manufacturing S corps will put thousands of people out of work and increase costs further.
Obama’s re-election means added S-corp taxation and insurance costs next year alone of about $3/hr/employee. What is worse is that our customers are comprised in large part of S corps. We saw a drop in orders of about 20% starting about a week after the election. I’m still predicting a strong spring, but the games being played for political power don’t have anyone’s best interest at heart other than the Democrat party.
The AFA was written with many generalities to be worked out later. For instance, the costs for the program are given in specific dollars increasing for 5 years when they reset to the original first-year level and a statement is added that congress will decide how much to spend after that. The purpose is to hide the true cost outlay of the government from the “unbiased” congressional budget office which is tasked with following what the bill says in its projections.
In other areas, who gets subsidized and fined for not taking the company healthcare is not being followed as written. Subsequent rulemaking seems to be tacking toward increasing the numbers of people who qualify for government help and if any employee qualifies, the business is subject to truly huge fines.
The trouble I have with AFA, is that none of it looks unintended to me.
@condon
“The trouble I have with AFA, is that none of it looks unintended to me.”
Move along folks, no conspiracy theories here.
Jeff, Bugs,
I don’t think there is a conspiracy, just a very different view of the role and scope of government than a large fraction of the American people have. Mr Obama, Ms. Pilosi, and Mr. Reed for sure will say they support “job creation”, it is just that so many other issues are more important to them… like trying to make every aspect of life ‘fair’… that taking steps to increase business activity never makes it to the agenda of things to do. I don’t think their intent is evil or even malicious, just misguided.
“Putting additional ‘tax the wealthy’ increases on the medical manufacturing S corps will put thousands of people out of work and increase costs further. ”
The biggest, unknowable and unaccountable loss, will be in innovation. Europe paved this path already.
Kan wrote:
That would be an amazingly atupid and unfair law. But “stupid” and “unfair” are not synonyms for “unconstitutional.” See our nation’s drug laws for an example. or our sugar tarrifs. Or even one most people here will agree is stupid: ethanol subsidies.
DeWitt:
First, there will be subsidies for those with low incomes. Second, insurance has plenty of benefits for healthy people and its lower relative cost with a penalty in place will get more people to buy. Finally, Massachusetts has seen an increase in insurance coverage since its penalty was implemented.
The Massachusetts Romney Care gets most us its funding from the federal government through Medicaid and shifting state funds. Now we all know that the federal government can print money to pay for these things and since that has no consequences, at least according the MSM and the ruling intelligentsia, there must be such a thing as a free lunch -notwithstanding Milton Friedman’s claims. The MSM and the intellectuals have no need to harp on the facts of the matter. They just need to continue to help you all out there dream the big dream and keep your eyes tightly closed.
“The Massachusetts law is funded differently from the federal one. The state didn’t need to increase income taxes to pay for it – most funding for the new law came from the federal government as part of Medicaid, and from shifting around state funds, says John McDonough, a professor at the Harvard School of Public Health.”
http://www.csmonitor.com/USA/Politics/2012/0702/How-Massachusetts-is-faring-under-its-landmark-health-care-reform-law
SteveF:
I agree here… “conspiracy” isn’t the only group behavior used to produce a result desirous to that group. People can choose to adopt global warming as a platform for example because they see it as a mechanism for wealth redistribution from rich nations to poor ones.
When people behave politically they don’t always outright lie, but they do tend to pick the tools that are available to further their political ambitions. That’s just human nature.
(For example, I saw an article today that compared CPI-adjusted US minimum wage between 1968 to 2012. There are two big problems with this comparison, but I doubt the person who made the comparison understood either of these.)
I’m not sure what you are talking about here. Obamacare raised taxes so money didn’t need to be printed.
Boris (Comment #107837)
I should explain my point here better. The Federal government can pay its bills through taxes, borrowing or printing money. It can also repay its borrowings in cheaper dollars by inflating the money supply which it does by printing money. Therefore if the government spends money on programs while at the same time going deeper into debt whether a given program is claimed not to add to the debt, the tendency at some future point in time for the government to print money is great and probably irresistible.
Medicaid spending at the federal level to pay part of Romney Care adds to the debt whether it be current or future. The state of Massachusetts cannot print money, but if it can get the Federal government to pay/subsidize for a state program it in effect has the Federal government’s ability to print money to pay off in cheap dollars what would otherwise be the state debt. I suppose Massachusetts could became a deadbeat state like mine here in Illinois and then go to the Federal government for a bailout and let the Federal government increase its debt and eventually inflate the dollar to repay debt more cheaply.
Greece is having problems since its being in the EU does not allow its banks to print their way out of an economic crisis.
Inflation is as bad or a worse way of dealing with government debt, but its effects are not as immediate as biting the financial bullet or going bankrupt of defaulting.
Let Eli tell you a story. In Germany people can buy private insurance or be covered by large plans similar in many ways to Blue Cross (or what Blue Cross used to be). Anyhow, when you are young and earning a bit and not needing to see the doctor much, the private insurance is a lot cheaper, so Eli has plenty of friends who went that way and are now regretting it because the cost is much higher for the older folk, but, there is a one way valve and you can’t switch back. The difference with war, is that with health insurance, the young tend to get old
Anyhow, IEHO this is one of the many reasons that single payer is superior.
Kenneth, two points on the insurance mandate: The Supreme Court ruled that the mandate is a tax, and is only valid at a level low enough as to not be coercive. If they increase the penalty, then the whole law could be thrown out.
Also, the insurance tax penalty only helps the insurance companies. The people who wrote the bill have no desire to help insurance companies. They are perfectly happy to have insurance companies go bankrupt, and move people onto government health care.
Re: Boris (Dec 28 10:36),
Duh.
From MikeN
Which means that the ‘tax’ on those with low incomes must still be less than the cost of insurance for those people.
See Eli’s story above.
The vast majority of young, healthy people will act to minimize current out of pocket costs. If most of the population were capable of significantly delaying gratification, we wouldn’t have had the housing bubble and saving for retirement would be much higher. I’m still worried that those of us who did save are going to be punished for it.
As far as Romneycare, more people being covered by insurance does not mean that the proportion of young, healthy people in the pool increased. AFAIK, it didn’t and the cost of insurance in MA has increased. Also, since a state mandate to buy insurance was always legal, the penalty could be high enough to be coercive. But politics being what it is, it isn’t.
We talk about the incentive for the uninsured to purchase insurance under Romney Care and it appears that while the rate of uninsured has gone down dramatically it is correlated with the subsidies that Massachusetts provides under this plan and not necessarily the penalties. It also appears that the number of emergency room cases has not been reduced significantly.
“From 2006, the number of uninsured Massachusetts residents dropped from about 6% to about 2% in 2010 according to the Massachusetts Department of Healthcare Finance and Policy (DHCFP), depending on the methodology used,[40] The United States Census Department shows a higher percentage of uninsured for the same years but a similar trend line. That trend line mirrors the approximately 400,000 Massachusetts residents added to the rolls of the insured in 2006/2007 via an expansion in Medicaid eligibility rules and the subsidization of the Commonwealth Care insurance program. A separate view also prepared by the DHCFP in June 2011 (and released in March 2012 with a date of February 2012) shows the number of privately insured individuals in Massachusetts down almost 100,000 between December 2006 and December 2010. According to the same report (latest data available), the decline in the number of privately insured was down only 50,000 as of March 2011 versus December 2006 but there is no indication if that improvement over December 2010 is a seasonal adjustment or a permanent trend based on an improving economy (the state of Massachusetts stopped issuing statistically consistent quarterly Key Indicators reports after the report dated May 2011)…
..Allegedly because of their lack of health insurance, uninsured Massachusetts residents commonly utilize emergency rooms as a source of primary care.[9] The United States Congress passed the Emergency Medical Treatment and Active Labor Act (EMTALA) in 1986. EMTALA requires hospitals and ambulance services to provide care to anyone needing emergency treatment regardless of citizenship, legal status or ability to pay. EMTALA applies to virtually all hospitals in the U.S but includes no provisions for reimbursement. EMTALA is therefore considered an “unfunded safety net program” for patients seeking care at the nation’s emergency rooms.[10][11] As a result of the 1986 EMTALA legislation, hospitals across the country faced unpaid bills and mounting expenses to care for the uninsured.[12] Data following enactment of mandatory insurance show total emergency visits and spending continued to increase, and low-severity emergency visits decreased less than 2%; researchers concluded, “To the extent that policymakers expected a substantial decrease in overall and low-severity ED visits, this study does not support those expectations.”[13] Other analysis concluded that preventable ED visits were reduced 5-8% for non-urgent or primary care ED visits relative to other states.[14] A more complete report released in January 2012 found between 2006 and 2010 emergency department visits and non-urgent visits had dropped 1.9 and 3.8% respectively[15] ”
http://en.wikipedia.org/wiki/Massachusetts_health_care_reform
MikeN (Comment #107843)
“The Supreme Court ruled that the mandate is a tax, and is only valid at a level low enough as to not be coercive. If they increase the penalty, then the whole law could be thrown out.”
All taxes are coercive and at any level. Where is this spelled out in the decision and what is the criteria.
Eli Rabett (Comment #107840)
When Eli tells a story, Eli should provide a few more details or Kenneth might think that Eli is merely telling stories. Why is it a one way street and who determines this? If I have cheaper insurance while young I can save more for higher premiums later. Are high deductible insurance policies available? How much does the German government dictate as to what insurance is available?
When Eli says: The difference with war, is that with health insurance, the young tend to get old
Kenneth thinks that since Kenneth has health insurance and always has had it that Kenneth can now drink and eat too much and go back to smoking. Kenneth was confused on this issue until Eli made Eli’s pronouncement.
Here is what Kenneth* found at Wikepedia on health care in Germany and about young opting out but evidently having the capability to opt back in when they are older.
http://en.wikipedia.org/wiki/Healthcare_in_Germany
“The government partially reimburses the costs for low-wage workers, whose premiums are capped at a predetermined value. Higher wage workers pay a premium based on their salary. They may also opt for private insurance. This may result in substantial savings for younger individuals in good health. With age and illness, private premiums will rise and the insured will usually cancel their private insurance, turning to the government option.[8] ”
*I hope no one is put off by Kenneth’s attempts to communicate with Eli in the third person.
Lucia thinks it entirely appropriate that Kenneth refer to himself in the third person when conversing with “the bunny”.
Kenneth
From http://www.volokh.com/2012/07/06/mandate-begone-the-logic-of-chief-justice-roberts-unique-tax-power-theory/
Randy Barnett’s discussion contains this
It then provides quite a lengthy discussion of the distinction made in the ruling.
lucia (Comment #107859)
Thanks for the link to the discussion of Robert’s “reasoning” on this issue and particularly in his attempt to speak to the level of taxation as a means of separating the tax from what would otherwise be a penalty. It is not clear at all that he set some level of tax when it might become a penalty. That would appear to go back to the Drexel decision where the level of the tax to be imposed, amongst other things, made the court decide it was a penalty.
Here is my problem with the tax issue. If someone decides not to be insured and not pay the penalty what logically happens? The government attempts to collect it in some other manner. But in the end if the tax violator refuses and evades all attempts to collect, I assume that the government must ultimately resort to imprisonment of the offender and an imposition of a fine. Otherwise the government would be without resort to collect taxes. The difference between a tax and penalty would appear to me to end when the violator refuses to pay the tax and is penalized for that action.
That discussion did make the point that the 4 liberal judges signed onto the part where Roberts states that the Commerce class would not allow the penalizing of inaction. I doubt very much that those 4 judges would have followed that reasoning had not they known that Roberts was going to decide the way they would have. Ginsberg was prepared to make some very torturous arguments to get there.
Obviously for those that would prefer the Constitution protect individuals basic freedoms, whether the government compels/persuades/influences individuals who are not violently imposing their will on others to do something they would not otherwise do, it is small comfort that the government does that by taxing or penalizing.
Kenneth
I’m not sure what happens. In some places I’ve read the only recourse permitted the IRS is to deduct from any claimed refunds. I don’t know if that’s correct though.
Possibly. But with respect to Boris’s complaint about the activity/inactivity distinction, it appears SCOTUS accepts that distinction as mattering to the commerce clause. Even if that acceptance doesn’t get as far as you would like it to, it does matter because there are constitutional requirements for passing tax laws that do not apply to laws that can be passed under the commerce claws.
Kenneth, it is somewhat more complicated
————————————-
55-Jahres-Grenze: Privat Versicherte, die bereits 55 Jahre oder älter sind, können im Regelfall nicht mehr in die GKV zurückkehren. Das bestimmt Paragraf 6 Absatz 3a SGB V. Danach bleibt „nach Vollendung des 55. Lebensjahres“ die Rückkehr in die GKV für diejenigen versperrt, die in den letzten fünf Jahren zu keiner Zeit gesetzlich versichert waren.
“55 year old limitation: Those with private insurance, who are already 55 years old, in almost all cases cannot return to the GKV (public insurance plan). That is set forth in Paragraf 6 Absturz 3a SGB V. which says that at the end of the 55th year of life return to the GKV is blocked for those who were not in the public insurance scheme at any time in the last five years.
————————————-
Many of Eli’s friends have been caught in this trap, but yes, it was not universal, although there are complications for doing that.
Somewhat more detail about how hard it is to move back but you will have to translate it
Eli– I get that Eli’s friends may not have had the foresight to read the rule and learn there is a limitation after they hit 55. But does anything prevent people from changing at age 54?
As for the bit that needs translation– can you translate it for us?
A poorly cleaned up Google translation: (Below GKV is the public system and PKV are the private ones, KV stands for health insurance, also, although Eli goes back, the last time he was in the system was over ten years ago, so stuff changes)
Whoever transferred into the private health insurance system is bound there, actually for life. The law has left no gaps to return to the public system. For (private) policyholders whose premiums are becoming much higher, this is a problem. There are no easy solutions. The way back to the social system is not quite completely closed though.
Above all, the fear of high costs with increasing age is driving people back. “But we have to disappoint many, because they have no legal means to change,” said a spokesman for the AOK (General Local Health Insurance**) Federal Association. “This shows that the time when private health insurance can be thought of as complete coverage is coming to an end.”
The way back to the GKV is rocky. The legislature has created many obstacles to prevent cherry-picking between systems. So it is not intended that people benefit at an early age from lower private health insurance premiums and then in old age take advantage of the GKV’s lower premiums.
Those who want change should consult an attorney or pension consultant, recommends the Insurance agent Sven Hennig. He does not see it as the task of the health insurance, private health insurance, to advise customers but many funds do this.
The paragraphs of the Social Insurance Code are so difficult to understand that only the initiated can figure it out. Generally, the older the patient, the more difficult the path to return is. The change depends largely on the circumstances, such as employment status, income and age. The legislature has set conditions to prevent rapid changes.
For employees:
Income must be reduced for at least one year below a ceiling set by law. In 2012, the income limit is an annual gross salary of 50,850 euros. A well-paid employee could force his income below that threshold if he works part time. Then he could go back to the GKV. As long as he works, he pays presumably the maximum contribution. But if he is retired, he would reduce his cash contribution (Payment into the GKV is by income)
But not everyone can go back. Some have had to request exemption from compulsory insurance (the GKV) in order to remain in private health insurance. This can be done if one’s income falls under the applicable income limit. Without the exemption one must be covered by the GKV. Many underestimate the consequence of such an exemption.
Self-Employed:
Those who work on a freelance basis or are self-employed and privately insured on a permanent basis can then switch to the GKV. (BUT) Their salary would need to be below the legal limit. Another possibility is to give up the independent insurance and the join one’s partner’s family insurance scheme (in the GKV).
Early Career:
Students who were privately insured during their college education can change on entry into professional life into the GKV. The way back is always possible – even if their salary in their first year is above the social security ceiling.
For over 55 years:
An important limit in the rules is age. A return to the GKV is for employees and self-employed only if they are not older than 55. Anyone who is older, has only under special conditions a chance. Consultants consider it as possible, to choose to go via the Netherlands. Therefore, the insured would have to live for a while in the neighboring country and be registered there, which is not practical for everyone. To make sure that this works, it is recommended that professional advice from an independent insurance advisor. This occupational group works on a freelance basis. It is important that the consultant is an expert on the rules of the social security law book.
——————————————-
** there are actually three types of health insurance, the AOK (General Local Health Insurance) which in the US context might be various locally supported clinics, maybe something like Kaiser, the Krankenkassen, which are for those who earn decent salary/wage and the PKV
As long as everyone is not talking about Mann bites Steyn, has anyone thought of if National Review has libel insurance and how their behavior wouldl affect that?
Eli–
My answer to your question is yes, I’ve thought about whether NRO has libel insurance. I assume the do have libel insurance. I assume that makes the insurance company an interested party. Possibly this means they are more likely to settle even though Mann’s case is pathetically weak. My impression is insurance companies like to settle.
On the other hand– who knows? Newspapers and magazines may be inclined to select insurance companies who are willing to defend libel cases because the freedom to publish is important to newspaper and magazines business models. In which case, the insurance would merely mean that NRO has insurance to cover the costs and would less willing to settle.
Since you asked, what’s your wild guess?
Eli–
I used google translate too and decided I couldn’t understand it. I thought since you linked it you might understand German well enough to do a fully huma translation.
Boris wrote – “That would be an amazingly atupid and unfair law. But “stupid†and “unfair†are not synonyms for “unconstitutional.â€
No, it would be unconstitutional. It would force you to engage buy my product. Your examples are not compelled. They are additive. You do not have to buy gasoline or sugar. But if you do, then you get hit with the added costs.
In my proposed law, you would have to buy my widget, regardless of your wants or needs. Big, big difference. Nice try though.
Eli Rabett (Comment #107867)
“Kenneth, it is somewhat more complicated”
Kenneth* thought it was more complicated than Eli had implied in his story telling and that Wikipedia can over simplify. Kenneth wonders what an accounting of the overall cost of using private versus government insurance would be over the expected life time of an individual or the cost of private insurance when younger and then a strategic switch later in life to government insurance- and then by income level. Surely the Germans can make these calculations and probably have.
Obviously nothing is set in concrete when it comes to legislation in the US and I would think it is the same in Germany. Germany as the leader of the EU by default has made many exceptions and changes to the rules of the EU – a number of which have lead to the current financial crises in Greece and major problems in Portugal, Spain and Italy. Government bailouts for banks, corporations, state governments and individuals, regardless of moral hazard, are very much in vogue these days.
* I have found that using the third person in referring to myself gets very tiresome for me. Eli, what is your secret to doing it on a regular basis.
Kenneth–
Lucia suspects Eli’s secret is ‘Eli’ is not his real name. Lucia thinks if she referred to herself as “E-rabbitator’, it would be easier to write things like “E-rabbitator was munching on a freshly killed bunny carcass when she discovered that the skull contained no brains!” Similar sentences where I use my own name to refer to my real self are more difficult to write.
Lucia, I find your terminology here properly descriptive
“commerce claws” just as I did in referring to Roberts’ finding for a tax when congress and the administration called it a penalty as a fine “jester” on his part.
I do need to look closer at what the dissenting Justices had to say about Roberts’ findings.
I do enjoy reading the arguments by the Supreme Court and listening to the open court hearings whether I agree with them or not. All these Justices are very intelligent and articulate and for the most part do the language justice if not the individual.
Well, don’t say Eli didn’t warn you that the thing was complex, and please don’t say that he was not basically right about retreating from the private to the state run health insurance schemes being essentially impossible
Yes it is very complicated which is why there is an entire industry of people who give advice on what to do. BTW, the German system was the model that was used for the proposed Clinton health care reform in 1993, which is why Eli was not so sold on that at the time, and why he favors single payer or something like the French system. Even the ACA is too complex. Bunnies would rather spend their time in the lab or running in the field than figuring out how to play the health insurance game.
WRT libel insurance, Eli has thought about it and laid in a large supply of popcorn. At this point the fun speculation is why the NR is running a fund raiser (thought those were only for NPR) to support their legal costs. But, alas, it is only speculation
Eli–
My comment is related to the strange translation. I don’t even understand the flow from one sentence to the next. It so opaque I can’t tell if the situation is complicated or simple. (That said, government rules tend to complexity– so I am willing to believe your claim it is complex.)
I agree with you the ACA is likely too complex. That said: I suspect the government could figure out a way to make a single payer system complex in the sense that people would have difficulty figuring out what they have to do to get treatment their doctors believe they should have. Governments have a talent for that.
Hey Josh – do you talk in the 3rd person in the classroom too? I’m wondering if that’s part of the reason you get such poor reviews as a prof, or if it’s something else.
Eli
Because they can? Or to test how much their reader base supports the suit? Beats me!
I believe that since 2009 the German government mandated health care system requires all people to have insurance including those opting for private insurance. It would appear to me that the incentive for having private insurance is the perks it provides and the flexible insurance planning it affords including rebates for not using the insurance.
Of course, the German system like all developed nations health and retirement programs suffers from unfunded liabilities that make the current systems look better than what can be sustained into the future. Look to Greece to see what happens when a government is forced to at least attempt to lower benefits even marginally to a population that has grown to depend on it.
http://www.tc.umn.edu/~schw0888/Finance/health-insurance.html
“Comparison
The big difference between the national health insurance plan and private insurance plan lies between the bases of premium. In case of national health insurance, it is determined on the basis of your income level. In case of private insurance, it is determined on the basis of ages, gender, health and certain other pre-existing situations. The coverage offered under national and private insurance plan are mostly same. They take care of your hospital stays, routine check ups, dental care, x-rays, immunizations, etc.
Although the premium for private insurance is sometimes more, nevertheless, you can think of opting for private insurance time considering the benefits it offers. If you put no claim within a year, you get a considerable rebate. Moreover, you also get preferential treatments at the hospital. You can choose the hospital where you want to be treated or get a single room for yourself. You can also ask to be treated by a doctor rather than an intern. And guess what, you may even get better food!”
While I do not see the US Constitution as protecting individual rights to the extent I would prefer, I think this latest excursion of the Supreme Court, as noted by the 4 dissenting Justices in ACA, puts the interpretation of the Constitution on the road to allow just about any abridgement of individual freedoms and through the Commerce Clause.
What this decision lays bare in my view is that the modern liberal, as characterized by the 4 liberal Justices on the Court, will attempt to protect those individual rights and government limitations as spelled out in the Bill of Rights accept when they get in the way of the big government programs that they obviously believe in.
Note that the 4 dissenting Justices refer to opposing arguments as dissenting. This situation leads some to conjecture that at one time and before Roberts made his case for a tax and not a penalty that it was indeed the dissenting opinion – as opposed to a majority one.
http://www.foxnews.com/politics/interactive/2012/06/28/supreme-court-rules-on-healthcare-read-opinion/
“The dissent claims that we “fai[l] to explain why the individual mandate threatens our constitutional order.†Ante, at 35. But we have done so. It threatens that order because it gives such an expansive meaning to the Commerce Clause that all private conduct (including failure to act) becomes subject to federal control, effectively destroying the Constitution’s division of governmental powers. Thus the dissent, on the theories proposed for the validity of the Mandate, would alter the accepted constitutional relation between the individual and the National Government. The dissent protests that the Necessary and Proper Clause has been held to include “the power to enact criminal laws, . . . the power to imprison, . . . and the power to create a national bank,†ante, at 34–35. Is not the power to compel purchase of health insurance much lesser? No, not if (unlike those other dispositions) its application rests upon a theory that everything is within federal control simply because it exists.”
Kenneth–
But that’s the dissent. So it sets no precedent.
If you are saying we are one justice away from that road– maybe. But for now, that’s a dissent.
lucia (Comment #107907)
If you consider the reach that Roberts was willing to make in allowing congress and the administration to call the enforcement part of insurance purchases one thing for political reasons and then redefining it for the purpose of the Court making every effort not to find the action unconstitutional, I somehow do not see Roberts action as limiting the government. After all those two routes both provide the same result and I do not see where either could not be applied in any activity that the government might choose to invade.
lucia (Comment #107884)
Referring to oneself in the third person in everyday usage “can have a variety of intentions” as noted in the link below. Take your pick of (1) imparts a sense of lack of self, (2) self-promotion, (3) impart an air of grandeur, (4) sarcasm and (5) give off the feeling of childlike cuteness. I am going with (5) based on the bunny references.
http://en.wikipedia.org/wiki/Illeism
Eli is a fun bunny that’s why and yes, all about Mann v. Styne will be revealed in the course of time unless the settlement is sealed and no non-german will ever understand everything about the german health care system. More popcorn please and oh yes, a bit of the bubbly tonight, or already depending on where you are.
Kenneth,
I found Robert’s logic contorted and strange. The better ruling would have been to strike down the law and tell Congress that they can tax if it is called a tax, but not control non-economic activities. Roberts missed probably the best opportunity he will ever have to make a difference in US jurisprudence; his was a terrible error, and completely contrary to the legal philosophy which most thought he held.