Tuesday, March 01, 2011

How far can you chop logic before you've made hash of it?

Almost everyone has asked the following question: "If God answers all prayers, why didn't he answer mine?" And if you asked an experienced Christian apologist, you received the following answer: "He does answer all prayers- 'No' is also an answer." If you were a child when you asked and received that answer, do you remember how betrayed you felt? If you were an adult, do you remember how frustrated you were with the "Heads I win, tails you lose" logic? Hold on to that for a while...

Judge Gladys Kessler has just handed down a ruling on the Constitutionality of Obamacare. By my count, that's five rulings so far, three upholding the law, two upsetting the law, with about twenty more suits in line unless the Supreme Court intercedes. I find the logic used in the decision... interesting. To explain why I find it so interesting, we'll have to backtrack a little to show how we got there; this will include recycling a couple paragraphs from a previous post from a year ago, in which I predicted that this would happen.

When the Constitution was written, the Supreme Court was to consider only certain types of cases, among them being cases involving interstate commerce. Those were simpler people, living in more primitive times; they innocently believed that words meant what the dictionary said they meant- for example that "interstate commerce" was, well, commerce, that was conducted in kind of, you know, an interstatey sort of way.

But that was then; this is now. Today, we live in a post modern, Alice In Wonderland world where words mean what we say they mean, and dictionaries be damned. "Interstate Commerce" no longer means what a dictionary might say that it means; this was established in WICKARD v. FILBURN In that case, a farmer had been charged with growing more wheat than the Agricultural Adjustment Act of 1938 allowed. The farmer claimed that the wheat had not been sold, it had been used to feed his own family; no commerce was involved. Since the Agricultural Adjustment Act dealt with commerce, and none had occurred, it wasn't any of the government's business what his family ate. To counter this seemingly reasonable argument, the court invented a new legal doctrine called "Total Incidence", which in layman's terms means "What if everybody did that?" If everybody grew their own wheat to eat, that would depress the price of wheat, which would have an affect on the whole wheat market; therefore the bread on his table, despite having been neither sold nor bought, nor ever crossing a state line, was involved in interstate commerce.

The irrationality of this argument means nothing to the law. Of course "everybody" isn't going to grow their own; growing wheat is an expensive, difficult, time consuming process that few would undertake- that's why wheat farmers exist in the first place. Hells bells, I once killed an air plant. But I digress.

This bogus expansion of the commerce clause was taken a step further with GONZALES, ATTORNEY GENERAL, et al. v. RAICH et al. In this case, the federal government overruled California's medical marijuana laws, which allowed citizens of California to grow marijuana for their own consumption. California argued that as there is no interstate commerce in marijuana, the commerce clause did not apply, so the 10th amendment rules. But, of course, there was no way such a reasonable argument was going to be allowed to stand.

The court said "The similarities between this case and Wickard are striking. Like the farmer in Wickard, respondents are cultivating, for home consumption, a fungible commodity for which there is an established, albeit illegal, interstate market... Here too, Congress had a rational basis for concluding that leaving home-consumed marijuana outside federal control would similarly affect price and market conditions." Did you catch that? "fungible commodity" means something that can be transported, and doesn't have anybody's name on it. Which means that it's physically possible for a California cancer patient to carry his joint across state lines, and once there, sell it. So despite the fact that the smuggling and the resultant sale are both already illegal, he is, by the Wickard precedent, involved in interstate commerce, and the government has a legitimate interest in regulating the price and market conditions even of a market that has no legal existence. And inherent in the logic is the government's right to assume that capability implies intent; a new precedent in its own right, in my opinion.

To any rational person, this argument too is bogus. It is tantamount to saying that the Constitution gives the federal government the right to regulate your sex life because since you can carry your genitals across state lines, you might then indulge in a little prostitution, which would then be interstate commerce. But again I digress.

So now we come to the Kessler decision. In the quotes you're about to see, there are ellipses- these do not represent missing words; the text is complete in each quote. But court decisions include references to precedents, with names and long series of numbers I find confusing and irritating to read; I presumed you would too, and deleted them. if you're the type who actually enjoys that sort of thing, the entire decision is here.

There were two classes of plaintiffs involved in this suit. The first were people who had never bought health insurance, nor ever intended to do so in the future- they intended to self insure. That being the case, they asked, by what Constitutional authority can they be required to buy private insurance? When did not engaging in commerce become commerce? Judge Kessler had an answer for them: "As previous Commerce Clause cases have all involved physical activity, as opposed to mental activity, i.e. decision-making, there is little judicial guidance on whether the latter falls within Congress’s power...However, this Court finds the distinction, which Plaintiffs rely on heavily, to be of little significance. It is pure semantics to argue that an individual who makes a choice to forgo health insurance is not “acting,” especially given the serious economic and health-related consequences to every individual of that choice. Making a choice is an affirmative action, whether one decides to do something or not do something. They are two sides of the same coin. To pretend otherwise is to ignore reality."

I can certainly agree that Judge Kessler had "little judicial guidance" in her decision! She is making the same argument that the Christian apologists make regarding the answering of prayers... to conduct interstate commerce, one must decide to do so, and so the act of making the decision is part of the commerce; since "No" is also a decision, you've just made a decision, and therefore engaged in commerce! With that kind of convoluted logic, one might have expected her to be a theologian- but the second half of her decision kind of precludes that possibility.

Remember I said there were two classes of plaintiffs? The others- names Lee, and Seven-Sky, belong to faiths that believe God provides, and that prayer is the only medicine they will ever use. To buy health insurance is to demonstrate a lack of faith, that you're making provisions for God's failure. By what Constitutional authority, they asked, could they be made to buy insurance that they do not need, will never use, and even the owning of which is blasphemy?

The judge began her answer by doubting their resolve, saying that it's one thing to claim you'll never use the doctor, and another to actually refuse the care in the face of an actual illness. But she had a back up argument just in case someone objected that questioning one's faith is not a legal argument: "Even assuming for the purposes of this Motion, however, that Plaintiffs Lee and Seven-Sky do remain committed to refusing medical care throughout their lives, Congress may still regulate the larger class of individuals when it “decides that the total incidence of a practice poses a threat to a national market.”... Consequently, the Court looks not to Plaintiffs’ particular situation, but must ask instead whether the practice of the broader class of uninsured individuals threatens the national health care market. However, “when it is necessary in order to prevent an evil to make the law embrace more than the precise thing to be prevented it may do so.’”... Because this Court has determined that the practices of the broader class of uninsured individuals substantially affects the health care market, Plaintiffs’ own individual activity may be regulated pursuant to Congress’s Commerce Clause power."

Ah, the "total incidence" argument again- you remember, "what if everybody did that?" If everybody asked the ambulance to take them to a Christian Science reading room instead of the hospital, that would affect the insurance market; therefore nobody can be allowed to do so. And the blasphemy? Well, we're not requiring that you use the doctor, only that you pay for him!

So to sum up: I can be forced by the government to buy a commercial product from a for-profit company because by virtue of not previously buying that product, I had in fact been involved in that industry; the service or product involved need not be traded across state lines or even legally exist at all to be interstate commerce that the government can regulate; and that any action which, if done by everyone everywhere, would have some effect on some type of commerce, whether or not that commerce currently legally exists, is behavior the government can legally control- and this vast authority trumps religious objections.

It took 146 years to get from writing the Constitution to Wicard, only 67 years to get from Wicard to Gonzales, and only six years to get from there to Kessler. If you can't see a slippery slope, you need to buy an inclinometer.

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