In part 1
of this post I offered two reasons why we should resist the Stamp racket mandate: That the whole policy further entrenches corporate tyranny, and that profiteering health insurance is a proven failure in ways this policy doesn’t even try to rectify. Nor could it even if it did try, because health insurance is incoherent in principle. It makes sense only if society’s goal for its health care system is not to provide good care for as many people as possible, but to provide the occasion for racketeers to extract a parasitic rent. Only in that way does it make sense, and this is in fact the intention of Obamacare, to preserve and intensify this rent.
Today I move on to the third reason, in case anyone needed another: The mandate is unconstitutional. So if one doesn’t care about tyranny as such, nor about an irremediably broken system, but still does care about constitutionality and the rule of law, here’s your reason to reject and resist. Then in part 3 I’ll carry over the constitutional discussion to the fact that even Obama is now calling this a poll tax, something which has already been found unconstitutional. From that introduction of the tax concept I’ll move on to reason four to reject and resist – the mandate is an unconscionably regressive tax and policy in general. Economically, it’s a reactionary assault on the people on behalf of yet another racket just at the time we’re already reeling from the devastation wrought by the banks. I’ll conclude with a discussion of prior successful fights against poll taxes.
If this Stamp mandate stands, if it’s illegitimately ruled “constitutional” (as two corrupt judges already have, while one has ruled the opposite), there will be literally no limit on the government’s being able to arbitrarily define the legitimate limits of a market and then require the purchase of a private product.
What we see in the two pro-mandate rulings is the doctrine of a pre-constitutional market. Congress has arbitrarily set up this pseudo-market based on private health insurance. It first gave the insurance rackets an antitrust exemption and rigged the market in other ways. Then, when this “market” failed badly enough that a critical mass of people were rationally (and with full moral justification) choosing not to participate in this corrupt market, Obama and the Democrats passed this Republican-designed bailout bill in order to force participation. (Starting in January, the Reps will become full partners and co-owners when they refuse to repeal it. I look forward to seeing how rebellious against the Reps these tea partiers become at that point.) In effect, this bill was designed to extend the antitrust exemption against non-participation as well.
It could be argued that a health care market does have to exist, and we are all necessarily participants in it. But the health insurance “market” doesn’t have to exist at all. It’s a completely gratuitous creation of the government, and in this case, contrary to the judge’s explicit lie, it is specifically a “market created by Congress”.
That’s a bizarre jurisprudence: The government can arbitrarily create an irrational, inequitable market and declare by fiat that everyone has to participate, and all of that is beyond the Constitution’s purview.
Instead, the Constitution is simply instrumental toward enforcing the arbitrary markets created by government, and from that perspective a mandate to participate is valid. This is the doctrine which will be enshrined if the mandate stands: The pre-constitutional command economy fiat power of the legislative, and perhaps executive, branch. Looking at the judges’ lies which depict this artificial command market as a law of nature, we see how the real goal is enshrinement of rule by corporate protection rackets. This is another big step in the de facto
privatization of the IRS, its transformation into corporate thug and bagman. The FDA is preparing the same mandates for food
(This is also redolent of the unconstitutionality of Kelo. Eminent domain can be legitimate where the government takes property for a legitimate public purpose. But where the government is nothing but the hired thug of a private interest and seizes property only to hand it over to that interest (who didn’t want to have to buy on the “free” market), that’s clearly illegitimate. But as we saw in that case, the corporatist courts are happy to violate and defile the Constitution on behalf of rich racketeering interests, so it’ll be no surprise if they come up with justifications for a reactionary insurance mandate.)
If this mandate is allowed, the Constitution simply becomes nothing but the flunkey of legislative and executive fiat with regard to any command economy measure. They’ll be able to mandate that all purchases have to be done with a bank-issued credit card, for example. Detractors have offered
many other examples. According to the logic, the arbitrary fiat is beyond constitutional purview and is automatically, autocratically postulated as legitimate, while the tyrannical application would then follow as legit according to the commerce clause.
The anti-constitutional corporatists tip their hand
with their constant citation of the rogue case Wickard v. Filburn
But Congress has successfully regulated inactivity, said Professor Tushnet of Harvard. In a famous 1942 case, Wickard v. Filburn, the Supreme Court ruled in favor of federal quotas, meant to support wheat prices, that restricted how much farmers could grow. In the case, Roscoe Filburn grew more wheat than permitted; he argued that the wheat was for his own use.
Professor Tushnet noted that Mr. Filburn’s actions could be described as a failure to purchase wheat in the general market — a situation similar to that of people who do not buy health insurance.
“If the constitutional challenge has any legs, it is on the ground that it is unprecedented — Congress has never done it before,” he said. “Well, it turns out that Congress has done it before.”
In citing this vile decision, they inadvertently broadcast their tyrannical intent, since Wickard involved the government’s determination to impose total control on the economy in a time of total war. The only way Wickard could be relevant to today’s situation would be if the real goal is indeed to impose economic tyranny as such, beyond even the profiteering incentives of any particular corporatist policy.
itself involved food grown for personal use, the new vogue of this case puts the real intentions of the Food Tyranny bill in a new light
(Is that Harvard scribbler joking when he says that about the “failure to purchase”? Is that a parody of the totalitarian logic, or the real thing? The logic parodies itself by now. If we do something for ourselves, the essence of economic self-determination and the very basis of the movement we must build, we’re actually harming the corporations we should’ve paid to do it for us. We’re guilty of an economic tort and must be held accountable. The government can legitimately restrain us and/or impose upon us.
We see the infinite vileness of these traitor swine.)
This fight is the latest and most pivotal federalism vs. anti-federalism battleground. The doctrine has actually swung back and forth
, with the Rehnquist court even imposing some worthwhile federalist limits.
For the last century the Supreme Court has struggled to define the limits of Congress’s interstate-commerce power. In the early decades of the 20th century, the court experimented with a variety of distinctions: Congress could regulate trade but not the manufacturing process (in a child-labor case); Congress could regulate anything that directly affected interstate commerce but not where the effect was indirect (in a labor dispute involving coal miners); Congress could regulate goods in the stream of commerce but not before they entered or after they left that stream (in a ruling on chicken farming).
These distinctions, however, proved unworkable in a time of industrial growth and expanding national markets. And in the 1930s, confronted with the surge of governmental power during the New Deal, the court abandoned them all.
Beginning in the mid-1990s, however, the court took up the project anew. In invalidating a federal gun possession law and the provision of the Violence Against Women Act that allowed victims to sue their attackers, Chief Justice William Rehnquist and his colleagues held that while Congress could regulate local economic behavior because of its national economic effects, Congress could not on the same theory regulate non-economic behavior like possessing a gun or committing an act of violence.
So the situation is that we’ve had some tenuous refederalization. (Legitimate federalism means power resides as close to its sovereign basis in the people as possible. Since representative trickle-down pseudo-democracy has been definitively proven a failure, there’s no longer any argument left against direct economic and political democracy. So our path is clear: We must restore true federalism, and we have to do it through our own efforts, from below.) But this partial federalism still exists within the malign framework of Wickard. While in theory this case could lead to the complete overthrow of Wickard, we have to assume this corporatist court will do the opposite – radically extend the already radical doctrine. Perhaps roll back everything the Rehnquist court did.
Perhaps the most Kafkaesque part is that even as these judges and the Stamp Act supporters say this mandate falls under the Congress’s “interstate commerce” power, the market is artificially restricted to intrastate
buying. If I live in NJ, I can’t legally buy
the cheaper policies available in NY.
“I actually wish the purchase of health insurance was interstate commerce,” adds New Jersey blogger Chris Wysocki. “True interstate commerce, as in I can buy health insurance from a company that is in another state. Like New York, where the RPI alumni association offers a Blue Cross plan which is 35% cheaper than the … Aetna plan I’m forced to buy here in New Jersey. Oh sure, Blue Cross has a ‘New Jersey’ plan, it’s even more expensive than Aetna. But right over the border there’s that tantalizing ‘New York’ plan, taunting me with its lower premiums and better benefits. True ‘interstate commerce”‘ would mean that I could buy it.”
Here we have a complete inversion of reality. What’s explicitly an artificially designed and restricted commerce in reality becomes “interstate commerce” in corporatist jurisprudence.
To recap, the government aggressively rigged a command economy pseudo-market in health insurance, an inherently flawed product. This in itself is of questionable constitutionality. It now seeks to mandate participation in this artificial market. This is definitely unconstitutional. The procedure of corrupt jurisprudence here is to implicitly declare the artificial Congressional program a natural fact (although the first decision went further and explicitly lied, proclaiming that “Congress didn’t create this market”). This, along with the depraved and immoral policy argument about “free riders” we already skewered in part one, is meant to toss the mandate issue into the long-raging fray over commerce clause powers, where any bench ideologue can cobble together the rationale for whatever he already was inclined to decide.
Judge Hudson has presented a way for the court to finally answer this question. His opinion is the first prominent judgment to say that Congress can use its power over interstate commerce only to regulate “activity,” as opposed to a lack of action. This strikes many as a bold assertion, but it has a lot going for it. All of the Supreme Court cases upholding Congress’s power under the Constitution’s interstate commerce clause have involved Congress regulating some kind of activity that is already occurring.
This alleged innovation is really common sense, the normal vector of the law, the normal way we live our lives, indeed of the basis laws of the universe – inertia.
Since the criminals are so ardent to find a pseudo-constitutional rationale for this obscenity, here’s a suggestion. Why not call the mandate a Letter of Marque, a constitutionally legitimate privateer’s commission issued by Congress? True, in this case it’s been awarded to wage war on the American people themselves. But think of the possibilities! As I said, there’s no limit on the possible mandates. Obamacare is not just the extreme example, but the prototype.