December 29, 2010

The Stamp Racket Mandate (Part 2)


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.
I earlier wrote an extended analysis of the first ruling, describing in detail all its fallacies and policy malevolence.
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.
Since Wickard 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.
Meanwhile the anti-mandate decision has a different character.

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.


  1. Hello attempter:

    I’m glad to have encountered your blog over at Yves’s place; we seem to be toiling in the same vineyard. I’d certainly welcome cross posts from you at Corrente. (Here’s a performance review (in the form of a fundraiser, not the context here!))

    Comment by lambert strether — December 29, 2010 @ 11:09 am

    • Hi Lambert, thanks for the kind words. Sure, I’ll be in touch.

      Comment by Russ — December 29, 2010 @ 11:46 am

  2. “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.”

    To my mind, all law is politics. The Supreme Tool provides the formal justifications for the corporate state. There are no real checks and balances.

    Comment by RT — December 29, 2010 @ 5:52 pm

  3. 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.

    Oh, yes, yes, yes!!!!
    This is the sick society that we live in.

    I can find you Nazi/fascist right-wing folks that will back this up (my sister in suburban CT) as well as left-wing pseudo-commies (my local commie supermarket pushes Coca-Cola, and would reject selling bulk flour, rice or quinoa because no middle-man would profit from it. And these are the Italian “communists”!)

    Comment by Lidia — December 29, 2010 @ 8:06 pm

    • Did you see how the head of the pathetic “USA Communist Party” supported Obama and the Democrats in the election?

      I’d point out how that’s typically treacherous “Popular Front” communist tactics wherever anarchism threatens to start gaining real support, and therefore where both communists and liberals would rather see fascism win, but why bother? Formalized US communists don’t even rise to the level of being traitors – they’re just losers.

      Comment by Russ — December 30, 2010 @ 4:38 am

  4. Thanks Russ, for another excellent post. Personally, I intend to resist the Stamp racket mandate, even if that means going to jail, or leaving the country, I’m planning to do whatever it takes.

    And to Lidia, your Nazi/fascist right-wing sister sounds exactly like my sister, who I’ve been avoiding as much as possible, ever since she reached a low point even by her standards by agreeing with that despicable Barbara Bush “working very well for them” comment, remember, after Hurricane Katrina?

    In case you’ve forgotten, here’s the exact quote that Barbara Bush made:

    “What I’m hearing, which is sort of scary, is they all want to stay in Texas,” Barbara Bush said in an interview on Monday with the radio program “Marketplace.” “Everyone is so overwhelmed by the hospitality.”

    “And so many of the people in the arena here, you know, were underprivileged anyway,” she said, “so this is working very well for them.”

    Comment by Frank — December 29, 2010 @ 9:10 pm

    • I sure don’t want to thank you for citing that hideous person. (I suppose you saw where she said, “Why should I look at the corpses of soldiers my son got killed for his private war? Why should I trouble my beautiful mind?”)

      But that is the typical mindset of that kind of person. So I suppose it’s always good to remind real people of it. Maybe stories like that help make the real nature of these “elites” clear.

      Comment by Russ — December 30, 2010 @ 4:44 am

      • Russ,

        But that hideous person’s comments are typical of the elite mindset, that’s how they see us, just they’re usually not so blunt about it.

        However it might be better if they all spoke like her, then maybe the rest of the population would understand that elites are the enemy. Maybe then people would see that for the past 50 years or so, these same elites have been sending the working class off to fight their wars for them, wars they dream up with their fancy Ivy League degrees, wars that have no meaning other than to benefit themselves and their military industrial CEO friends who never get near a battlefield.

        Even at websites like Naked Capitalism, it seems many commenters are still in denial over the whole issue of class in America. They prefer not to acknowledge there is such a thing. LeRogueTradeur’s comments yesterday are typical of this, and there are many others like him.

        But to misunderstand class difference is to misunderstand everything. What these people want us to believe is we’re all equal as Americans.

        We’re all just Americans living in harmony and working together, everything is great, we seem to have hit a few snags along the way, no problem they tell us, just a few minor adjustments and it will all work out.

        In their world view there are no managers, no bosses, no owners, no crony capitalists, just firms we work for (or used to work before they outsourced all the jobs). And to hear them tell it, all these firms are interested in is helping us common folk out here.

        How long are people going to accept these lies? How much longer before the American people revolt?

        Comment by Frank — December 30, 2010 @ 8:42 am

      • I’m sorry Frank, I didn’t mean to sound cross. I was smirking when I said “no thanks”. So now I smile fully. 🙂

        No, you’re right. It’s good to cite them. For example, I’d like it if the war criminal Holbrooke would be defined by his ultimate quote (reflecting the sum of his actions, starting with his early career as a “strategic hamlet” incarceration cadre in South Vietnam), regarding “victory” in the Permanent War: “We’ll know it when we see it.”




        How long will it be before we revolt? I don’t know. We’re already withdrawing, and if we aspire we can move on to passive resistance and direct action.

        Combine those with the collapsing tendencies of the system, and it just might work!

        (Like I said to him twice, I think lerougetrader is a joking troll. Several times before he’s demanded that same sort of clarification, and he never constructively responds when I provide it. Same with the Dunkster.

        But in the spirit of Nietzsche, who advises, “prove your enemies did you some good”, I’ll mention how lerouge’s phony questions were the occasion for this statement:

        https://attempter.wordpress.com/2010/11/21/relocalization-vs-neoliberalism/ )

        Comment by Russ — December 30, 2010 @ 9:10 am

      • As the fat bonus checks roll out, the high rolling elite go shopping. Easy come, easy go.


        Comment by Tim — December 30, 2010 @ 11:57 am

      • Russ,

        I figured you were being tongue in cheek in your response to that hideous person quote. Although even if you *had* been irritated by my reminding you of her, you would’ve perfectly justified in that reaction.

        As for Richard Holbrooke, when he died recently I couldn’t take all those fawning articles in the media, although I should be used to them by now. One in the NY Times carried the headline: “Richard Holbrooke: Giant of Diplomacy….”

        Giant of mass murder would’ve been more accurate. None of them even mentioned his complicity in the Indonesian campaign of genocide against East Timor, when Holbrooke was head of the State Dept’s Bureau of E. Asian & Pacific Affairs.

        At the time, 1975-1976, Indonesia, with full US support and backing, invaded East Timor and killed over 200,000 people, or one-third of the population before it was invaded. And this genocide would not have been possible without US support, lead by Richard Holbrooke.

        From your article, “Afghanistan and the Corporate Abyss”, as of Sept 2009, it sounds like you had not completely, 100 percent, given up all hope of Obama reversing course in Afghanistan, when you quoted Nietzsche:

        “Is it possible that he might look into the abyss, see the abyss staring back into him, and decide he doesn’t want to become such a monster himself?” (Nietzsche, Beyond Good and Evil)

        Not Obama. He looked into the abyss, saw the abyss staring right back at him, and apparently recognized himself in the monster, or in any case he must have liked what he saw.

        And as for Leroguetrader, I guess it’s possible he’s a troll, although in that case he’s certainly going to a lot of trouble for nothing. But as you point out, at least some good has come out of it with your post on relocalization versus neo-liberalism.

        Comment by Frank — December 30, 2010 @ 12:55 pm

      • Tim: That’s pretty nasty. But I try to remind myself that it’s better than if they were rationally using the wealth to maximize their position. Not long ago in a Naked Capitalism comment thread (I forget where) I opined that ten more years of monster SUVs was a better squandering of the oil than a hundred years of police vehicles.

        That’s part of the idea I was expressing in my “Limits to Racketeering” post.


        It’s similar to Orlov’s doctrine of “boondoggles to the rescue”.


        So I try to look at the bright side, though it isn’t easy in the face of such ugliness.

        Frank: I only vaguely knew about Holbrooke in East Timor. No surprise.

        Did I still pretend to think Obama might roll back the war, even that late? (I didn’t reread the entire post.)

        I actually never thought that, but at the time I thought it might be worthwhile to write as if Obama were really making a decision, for the sake of people who were still legitimately uncertain about him. So I rationally argued:

        1. According to Petraeus’ own COIN doctrine, the war can’t be won in the absence of an indigenous government recognized as legitimate by a critical mass among the people.

        2. Since Karzai stole the election and everyone knows it, everyone considers his government illegitimate.

        3. So if Obama were really making a decision, and really cared about doctrine, and only needed political cover to end the war, here it was. He could force Petraeus to back him up.

        4. Therefore, if he continues the war under these circumstances, that proves that he, Petraeus, and McChrystal are all liars, since they’re continuing the war under circumstances they had previously conceded rendered the war untenable.

        I never expected anything different, but I figured that line of argumentation might knock some sense into people.

        Comment by Russ — December 30, 2010 @ 3:44 pm

  5. LOL. It will be tougher to form democracy if we can’t even get along within our own families! Great blog, Russ.


    Comment by Steven — December 29, 2010 @ 9:23 pm

    • Thanks, Steven.

      Comment by Russ — December 30, 2010 @ 4:45 am

  6. Thank you Russ for these two great pieces. They were certainly spot on and an inspiration.

    Comment by Joyce — December 30, 2010 @ 12:00 am

    • Thanks, Joyce.

      Comment by Russ — December 30, 2010 @ 4:45 am

  7. From my FB comments:

    This should be an interesting case for the Supremos, on the one hand you have Government delivering citizens like cattle to a packing company [corporate interests] and on the other hand you have a fundamental value that taxation is the sole… domain of elected government being transferred/abdicated by congress to private financial interests. The fact that the two other courts choose to ignore this body of US Law without noting it’s existence should give one pause.

    I would argue that this action is proscribed against by the US Constitution. Congress has the sole power to legislate for the United States under Article One, Section 1 of the United States Constitution and is proscribed from transferring that power under the doctrine of non-delegation.

    “The origins of the non-delegation doctrine, as interpreted in U.S., can be traced back to, at least, 1690, to John Locke The doctrine of nondelegation describes the theory that one branch of government must not authorize another entity to exercise the power or function which it is constitutionally authorized to exercise itself. It is explicit or implicit in all written constitutions that impose a strict structural separation of powers. It is usually applied in questions of constitutionally improper delegations of powers of any of the three branches of government to either of the other, to the administrative state, or to PRIVATE ENTITIES.” – Wiki

    In the 1998, many of the current Supremes decided that Congress could not delegate a “line-item veto” to the President, by which he was empowered to selectively nullify certain provisions of a bill before signing it. It will be interesting to watch Antonio and Clarence dance this one. I don’t think Kennedy wants to go out having foisted this monstrosity upon the US. Sotomayor is on record as having said the political sphere is being consumed by corporate interests…the “Federalist” will have to be renamed the “Hypocriticalist” if Roberts, or Alito go along with this

    This should be an easy case for true liberals [people who examine an idea on it’s own merit without preconception]…And it should be an easy case for conservatives [people who retain core values unless they become hopelessly outdated]…Unfortunately, the last of either species flew the coop years ago, chased out by the cuckoos of the brood parasitic family.

    My final Answer? Either change the constitution or write a three page law expanding Medicare to all who choose [in a one time deal] to opt in. Done

    Of course that’s an extremist view…while ripping up the Constitution in order to allow corporations to play grab ass with law abiding US Citizens is considered “moderate”, “centrist”, “responsible” and…”serious”. Not since the citizens of Troy rolled in the wooden horse have we seen such idiocy, US “progressives” are supporting the destruction of the only document that stands between them and a corporate controlled state for a medical plan proposed by Heritage in 1994…a plan that has already failed in Massachusetts.

    December 14 at 11:11am · Like

    Comment by S Brennan — December 30, 2010 @ 12:32 am

    • SBrennan, you have it exactly right. “Progressives” are at it again with their “process” mentality which wants to destroy the essential principle and common sense implication of every word the Constitution says, in favor of crawling and licking SCOTUS boots, because liberals are always elitists at heart. That’s why they’re liberals instead of being anarchists or some other kind of decentralizing socialist. I saw a few comments yesterday exemplifying that elitist “process” mentality.

      I already wrote a post on that, occasioned by the support of process liberals like Greenwald and the ACLU for Citizens United, which I think sums it up:


      If we could add amendments to the Constitution, the first would have to rectify the errors/usurpations of 1788 in hijacking “federalism”. We now know for a fact that representative pseudo-democracy is a scam which only led to kleptocracy. We now know that direct democracy is the only mode of polity and economy which has any moral validity, rational legitimacy, and any prospect of practical success.

      So the redeemed Constitution will have to explicitly lay that out (along with the eradication of corporations).

      My final Answer? Either change the constitution or write a three page law expanding Medicare to all who choose [in a one time deal] to opt in.

      That’s a good ultimatum. (Except for the “one time deal” stuff – why do you want to make any concession at all to criminals? I say let’s give the people as many deals as they desire, no matter what they do. Isn’t that how the criminals treat themselves?) That’s in the spirit of the tactics I proposed in my “Bridge” post:


      Let’s demand Single Payer. Let’s demand Food Sovereignty. And since those will never happen under this kleptocracy (actually, I think maybe at least a clarified food law is possible), let’s also start writing up how we need to clarify the Constitution. That new Convention is one of the projects I want to undertake on this blog in 2011. Next week I’ll write up a post specifying what I mean.

      Comment by Russ — December 30, 2010 @ 5:11 am

      • Russ, Looking forward to our Constitution 2011. Cheers, tawal

        Comment by tawal — December 30, 2010 @ 12:45 pm

      • Cheers, tawal. We’re gonna restore true federalism, and the spirit of the American Revolution, so get your conventioneer hat ready. In ideas, at least.

        I know lots of anarchists are snobs about this kind of thing, but they’re the ones contradicting their own idea, since they themselves say we need to act gradually within the parameters of existing conditions.

        Since we currently languish under “representative” trickle-down pseudo-democracy, and since the people revere the Founders and the Constitution, the course is obvious: Amend the Constitution, on our own initiative and authority (which is the only authority) and proceed accordingly in action.

        Plus, true federalism can accommodate many ideas, not just anarchism. The only thing it can’t accommodate is centralism.

        Comment by Russ — December 30, 2010 @ 3:56 pm

      • Russ, where’s the like button…

        Note: The above message was intended in humor

        Comment by S Brennan — December 30, 2010 @ 10:36 pm

      • Thanks, S Brennan. (There’s a “like” button in the toolbar at the top of my screen, but I don’t know how it works.)

        I hope you’ll participate in the Convention. I’m thinking that we’ll want input and proposals as far as ideas and wording go.

        The basics: Positive democracy, true federalism, anti-corporatism.

        Comment by Russ — December 31, 2010 @ 2:12 am

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