Article

2012-07-02 -Short Attention Span Theater-

Roberts jokes and fends off speculation about his health-care ruling

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Posted by Besoeker 2012-07-02 00:00|| || Front Page|| [11131 views ] Top

#1 I might recommed a very slow trawler to Devil's Island, Guiana, but that's just me.

How about a very slow colander?

Posted by gorb 2012-07-02 02:05|| 2012-07-02 02:05|| Front Page Top

#2 He's joking about it because he did not like what the Left would do to him in the editorials if he had refrained from doing Congress' job and rewrote the bill to make it pass Constitutional muster. I read lots of articles that noted that all the criticism of the Court running up to this decision were expressly calculated to f*ck with Roberts' head. It was much safer spitting into OUR eye because WE have principles, one of which is respect for rule of Law.

The problem is that we continue to respect rule of Law based on an assumption that the Law is as it is written. This on-again-off-again "its a penalty/its a tax/its a penalty", based solely on the desire of LIBERAL speakers. It also is based on an assumption that the Law will be enforced. This "we'll enfoce it/we won't enforce it/we'll enforce it" , again based solely on the desire of LIBERAL enforcers when they can't contort the meaning of the Law, vitiates the concept of the rule of Law.

The core problem is NOT the Constitution as it is WRITTEN, but the culture and the people assigned to obey it. To use an analogy, it is a specially written PHP script that is running on a deliberatly compromised PHP script INTERPRETER. Ken Thompson, one of the creators of the UNIX operating system and the C programming language, gave an example in his Turing Award Lecture of how this is done. Of course, the perversion of the meaning of the langauge in which a Law is written so as to alter the meaning of the Law, and thus affect its applicability, was foreseen by Orwell in "1984", although it is as rarely implied as openly as it was during the Clinton ("it depends on what the meaning of 'is' is") administration.

The degradation of the system began as far back as Marshall: the power of the Supreme Court to declare a law of congress unconstitutional is not in the Constitution. It has endured because it itself is a finding EXCLUDED from the body of texts that are SUBJECT to the declaration "its unconstitutional", by the fact that it is itself NOT a "Law of Congress", being a law "enacted" unilaterally by the Supreme Court.

Perhaps what I am trying to get across is that the practice we call "Respect for the Rule of Law" is actually subject to a set of higher laws that are being constantly violated. "Working within the system" to correct the Laws in accordance to the Law can't possibly work because the corrective process itself is subject to the abuses that caused the Laws being corrected to go wrong in the first place.

Posted by Ptah 2012-07-02 08:22|| 2012-07-02 08:22|| Front Page Top

#3 "Respect for the Rule of Law" is actually subject to a set of higher laws that are being constantly violated. Ptah

I am in violent agreement with you Ptah. Unfortunately, even the very utterance or reference to those "higher laws" is under attack.

Posted by Besoeker 2012-07-02 09:08|| 2012-07-02 09:08|| Front Page Top

#4 Thanks for your agreement Besoeker, but It appears that I need to clarify what I meant by "Higher laws", since if I was referring to biblical principles I would have given references.

The idea I am trying to get across is that the idea of "rule of law" implicitly includes an unwritten set of laws that govern how the written law is interpreted. In order to maintain the fig leaf that they honor the rule of law, Liberals constantly violate those unwritten laws to make the written law work their way. Probably the only "divine" rule that is unwritten and constantly violated is that of hypocrisy, where those same Liberals scream in protest when Conservatives consistently apply those unwritten laws to make the written laws work their way (I.e. when the same sauce they used on the conservative goose is applied to their gander). When they say "one set of laws for me and another for thee", they are NOT referring to written laws (that would be too bold), but to the unwritten laws used to interpret those written laws. If you can't change the text of the law, but can control the grammar rules and the dictionary meaning of the words in the law on the fly, then clearly you can make any passage of "Mein Kampf" MEAN like the 23rd Psalm.

The key is to realize that only written laws can be enforced, NOT the unwritten laws that are used to interpret those written once: Roberts appealed to one such unwritten law to justify changing the penalty into a tax, while the minority view cited many unwritten laws he violated when he did so. For instance, the ACA did not have a severability clause, and someone at Belmont club pointed out that that omission meant that the ENTIRE law had to be constitutional for the ENTIRE law to be admissable, and the Medicaid penalty on the States was declared unconstitutional. Roberts violated THAT unwritten law.

Being consistent with one's application of the unwritten laws, even when consistent application does one harm, is what I call being principled, so I suppose one could call those "unwritten" laws used to interpret "written" laws as "principles". The dissenters were "principled" judges, while those majority, including Roberts, should be characterized as "unprincipled".

Posted by Ptah 2012-07-02 11:27|| 2012-07-02 11:27|| Front Page Top

#5 Ptah - If one believes that the perversion of the role of the Supreme Court dates to Marshall's reading into the Constitution the power of judicial review of Congressional acts then one must necessarily celebrate rather than criticize Roberts' action because, after all, with respect to the mandate what Roberts did was to uphold the will of Congress as enacted. That's as reasonably close to a pre-Marbury result as is possible in a post-Marbury Court. That Roberts chose the Taxing Power rather than the Commerce Clause should be immaterial from this perspective as the madate in the act as passed was left unmolested and its effect will be precisely what Congress intended.

The foundational problem isn't that courts are political animals that pervert the law in order to impose their political whims (though that sometimes is true), rather it is that the language in which our laws are expressed is itself inherently non-deterministic and thus subject to differing interpretations by differing individuals. Bill Clinton correctly identified this issue when he famously answered that the meaning of his previous statement was dependent upon, "... what the meaning of 'is' is." Individual words can have a vast array of differing meanings. Assemble those into phrases, sentences, paragraphs, reams of legislation, etc. and that complexity and the possible interpretations of the ever-larger groupings of words grow exponentially.

Consider that idea in what is probably one of the most apolitical areas of federal law: the interpretation of patent claims. In these contests where a deterministic, and often concrete, invention is compared to an English language description of the metes & bounds of another's property the lawyers have about a 50% probability (internal metric) of having correctly advised their clients as to the likely outcome of the challenge. Similarly a trial court's decision has about a 50% chance of being overturned on appeal. Everyone involved from the original drafter of the claims to the litigators on both sides to the trial & appellate judges are people of not insignificant skill with language and yet none exhibit skill enough to exceed a purely random chance that the next party to examine their work will agree with their interpretation. Why? These results flow not from a perversion of language, though 50% of litigants would believe so, but from the inherently non-deterministic nature of language itself and of the minds of those who interpret it. Language isn't code (which is deterministic) and people aren't machines (which are also deterministic), that's the difference.

The above represents the simplest example of law in which a deterministic invention is described by inherently non-deterministic language which is interpreted by non-deterministic human beings. Compare this to the Sebelius decision which saw non-deterministic human beings compare the non-deterministic languge of the Constitution to the non-deterministic language of the PPACA in light of a couple of centuries worth of non-deterministic humans comparing the non-deterministic language of the Constitution to the non-deterministic language of previous statutes interpreted in light thereof. To find a clear pervsion of law there is to attribute the impossible characteristic of determinism to language and to human judgment. The problems flow from the facts that both pepople & language are non-deterministic and therefore will not reach the same conclusion given identical inputs and from the vast complexity of what has gone before creating a seemingly paradoxical outcome no matter what said outcome might be.

Whether the Framers foresaw this sort of thing is pretty much beyond question as well. The Anti-Federalists warned that at least the Taxing Power in the new Constitution gave unlimited authority of the government over the individual and this was not the only complaint of that sort. That we now formally have a federal government of seemingly limitless power over the individual is an eventuality foreseen by at least a faction among the Framers.

Posted by AzCat 2012-07-02 12:28|| 2012-07-02 12:28|| Front Page Top

#6 That's as reasonably close to a pre-Marbury result as is possible in a post-Marbury Court.

With all due respect, AzCat, but LIKE is not IS: a TRUE pre-Marbury court today would be accompanied by a pre-Marbury Presidency, a pre-Marbury Congress, and thus a pre-Marbury United States that would certainly be different from OUR world today. The law was written post-Marbury, and to keep it, Roberts suddenly "finds religion", LEAPS back to pre-Marbury thinking so that he CAN ignore the (now inconvenient) post-Marbury conventions so he can rubber stamp the ACA, then LEAPS back to our Post-Marbury time to preserve post-Marbury privileges and power for the Court.

Assemble those into phrases, sentences, paragraphs, reams of legislation, etc. and that complexity and the possible interpretations of the ever-larger groupings of words grow exponentially.

In a previous life, I pursued a PhD in Artificial Intelligence with an emphasis in Natural Language understanding, so I have done some work and thinking with regard to what you term non-determinism. The "problem" you cite is actually resolvable if one regards it as one of AMBIGUITY (one choice out of a set), not non-determinism. For instance, use two different words in several sentences that attempt to explain the same concept and you use set intersection, not power set as you imply, to select the intended meaning. Position in the sentence also disambiguates many words. "Time flies" is certainly an ambiguous sentence, but when my AI professor asked what it meant, she INTENDED it to be a trick question: TRUE AI would NOT give an answer one way or another, but RECOGNIZE that it was ambiguous. The ambiguity (non-determinism)lies in its sparseness, a property that doesn't apply to the thousands of pages comprising the ACA that was specifically structured to keep the penalty OUT of the Tax section.

Posted by Ptah 2012-07-02 15:17|| 2012-07-02 15:17|| Front Page Top

#7 Robert's decision should go down in history as one of the worst SCOTUS decisions. Of course there is
Wickard v. Filburns, and Roe v. Wade (The progeny of Griswold v. Connecticut).

It [Constitution] is a thing of wax in the hands of the judiciary, which they may twist and shape into any form they please wrote President Thomas Jefferson, referring to the Constitution of the United States of America.

Our third Presidents words were written in reaction to Chief Justice John Marshalls decision in the landmark case of Marbury v. Madison, which established the principle of judicial review and made the Supreme Court of the United States the more equal branch of the federal government.

Jeffersons thing of wax has unfortunately been molded by the Court into a shape that the Founders would not recognize:

Posted by JohnQC 2012-07-02 15:50|| 2012-07-02 15:50|| Front Page Top

#8 By the reasoning of the majority, the next time anyone goes to the grocery store, they should consider the possibility of being taxed for all the things they don't buy.

Posted by JohnQC 2012-07-02 15:57|| 2012-07-02 15:57|| Front Page Top

#9 Marbury

I honestly don't understand the fixation on Marbury with respect to the decision in Sebelius. Marbury is typically cited for the idea that it created judicial review but it is probably a bit more accurate to say that it was merely the first exercise of that power by the Supreme Court of the United States and with respect to an act of the federal government.

Like most foundations of our legal system the concept of judical review predates the United States and comes to us from earlier English law. It was practiced in the courts of the Colonies, enshrined in the early Constitutions of several states, debated at the Federal Convention of 1787 (delegates who spoke were overwhelmingly in favor), practiced in several state and federal courts in the United States before Marbury (with respect to state statutes in conflict with state constitutions), etc.

Hamilton spoke positively of the concept in one of his Federalist Papers and even the Anti-Federalist skepticism was founded on the fear that acts of Congress would be overturned by an unelected judiciary, not that the same unelected judiciary would find ways to uphold acts of Congress.

Further, while the text of the Constitution doesn't explicitly authorize judicial review it does say, "The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority ...." It's difficult to read this bit of plain text, particularly in light of the abundant evidence of support for judicial review at the time of the founding, and nevertheless decide that judicial review was neither authorized nor intended.

Roberts on Sebelius

Roberts merely adhered to the longstanding doctrine that where a statute is in peril on Constutional grounds and there exists a colorable argument that would preserve it that is the interpretation that should stand. Even extremely conservative commentators have largely admitted that. It's simply not the job of the Court of find a ground on which to invalidate a stupid & destructive law, rather just the opposite. Which is precisely what happened here.

Roberts did not leap back and forth across the threshold of Marbury. He merely applied an extremely longstanding canon of Constitutional interpretation and did precisely what the Court has long done: avoid invalidating a statute where there is a Constitutional perch upon which it colorably finds purchase.

The fact is that both the Obama Administration and the opposition at least touched on the mandate-as-tax issue in their briefs. Roberts did not invent that out of whole cloth though he did contort himself into a pretzel to reach that holding it was set forth by the Executive Branch. But even if it were not it would have been entirely proper for Roberts to have gone there.

As Jon Kyl pointed out over the weekend Roberts did do something very curious: after invalidating the Medicare Expansion provisions he effectively substituted his own rather than simply strike down what was there. If Kyl's interpretation of Roberts' action on this point is accurate then this is the extraordinarily radical action of Roberts in Sebelius.

While I'm not among those clinging to the faint hope that Roberts is playing a larger game consider, for a moment, that he might be. Perhaps he's merely kicked the can past the next election knowing full well that the PPACA will come before the court again, and perhaps an issue will present itself that will win more than 5 votes. For example, the abortifacient / contraceptive mandate being challenged in the lower courts presently. That will, almost certainly, reach the Supreme Court eventually and I'll wager that there are more than 5 votes on the present Court to reverse on that point. I can't help but wonder if Roberts left a window of opportunity open to strike the entire act knowing that an issue was on the horizon that would gather both more support on the Court and more popular support. And if, by chance, he lit an explosive fire under conservatives ahead of one of the most critical elections in our nation's history well, that wouldn't be a bad thing either would it? Nor would the repeal of the PPACA via the political process which seems significantly more likely today than last Wednesday.

Ambiguities

It makes little difference that Congress structured the mandate as a penalty, politicians not under oath are still allowed to lie to the public. The punishment for that is political and meted out at the ballot box, not imposed the the courts.

Again, it is the job of the Court to find a way to uphold validly enacted (passed by Congress & signed by the President) laws. It is NOT the job of the Court to find reasons to strike down such laws when other, even very weak, reasons to uphold them exist. We don't have to like that but both our original Federalists and our original Anti-Federalists would concur.

My point was merely that it is unsurprising that the imprecision of language leads different people to interpret given language differently. Not so machines. Two machines having had identical inputs will produce identical outputs, not so humans.

In a previous life I did my academic study of natural language processing in law school, in the life prior to that I was an engineer (graduate degree but alas not a PhD) specialized in random signals & processes and very large scale numerical analysis though I would argue, and some past colleagues would likely concur, that my greatest contribution to either profession was moving on to another. Not that any of this matters to any of the opinions I've set forth here.

Posted by AzCat 2012-07-02 22:34|| 2012-07-02 22:34|| Front Page Top

#10 Do you want to play a game?

By this reasoning, behavior or lack of behavior, is now taxable.

By not engaging in a particular activity, in this case to carry health insurance, a person pays a tax to avoid a law.

Would it be that illegal behavior is a tax to infinity, an unpayable tax? Example, forbidding your kids to work on your farm is not a law but an unpayable tax, an infinity tax.

So what about punishable behavior, such as a no carry on health insurance. How about jail time, would that really be a tax which is paid off by time serving? And if so, can that time be purchased out like paying off back taxes?

What would that formula be? Linear? Based upon worth of convicted? Would that mean a life taken by a poor murderer is less than the life taken by a rich murderer?

Would it mean that the IRS is now the highest authority in the land? Would it mean that penalties instituted by triple letter scores such as pollution penalties made up by the EPA are now null and void until the IRS sets up its charts?

Subsidies are now tax penalties upon the consumer? Consider something easy, like sugar. By not purchasing a certain amount of sugar at the store is the consumer responsible for an additional fee at the time of purchase, and if so is it linear or a percentage of the bill?

And yes, I find it odd that what is considered constitutional flies in the face of the Founders who spent blood fighting against the very tax considerations and point of view the majority opinion expresses. But it is not just Roberts, the committee consists of either a sexist racist or a racist sexist nonetheless a person who considers themself wise, a quality reserved for others to opinionate about a person (that is, a person who considers themself wise is full of themself), a cheerleader and proponant of government health, and a person who thinks the model of South Africa is better than the one sworn to not only uphold but protect.

I have made it clear as the stars on a moonless cloudless winter high plains night that if I am forced to carry insurance on my employees that they will be taking a wage hit and people will be let go. If the minimum is raised to prevent this, I quit. Any number cruncher, margin pounder, and those who are working at this time of night just to keep the doors open should see this. And those who can just pass the expense, boy now you want to see some inflation grab hold of your butt.

The bell has been rung, time to judo up.

Posted by swksvolFF 2012-07-02 22:51|| 2012-07-02 22:51|| Front Page Top

#11 "By this reasoning, behavior or lack of behavior, is now taxable."

There are all sorts of taxes on behavior or lack of behavior already in the tax code, this one is just far more visible.

I would like to see offended people go after the tax code (in addition to repealing this ghastly law of course) and flatten it to remove all of the games within.

Posted by rjschwarz 2012-07-02 23:35|| 2012-07-02 23:35|| Front Page Top

#12 Do you want to play a game?

Sure but let's play an even more entertaining one.

One might generalize Roberts' opinion as making an otherwise unconstitutional mandate a valid exercise so long as people may be found in compliance by either: a) submitting to the unconstitutional mandate; or in the alternative b) paying a tax.

Why not then a federal conception license? One per individual in their lifetime each granting the right to conceive half a child with the effect of forcing a one child policy on Americans; or, alternatively, said Americans may pay a tax for non-compliance or unlicensed conception. Under the broadest and most general reading of Sebilius that's just fine.

Suppose Congress delegates to a National Child Licensing Board the details of enforcement and that said board determines that the most certain enforcement mechanism is surgical sterilization and promulgates rules requiring males to report for sterilization within 30 days of the discovery of their licensed child and females within 30 days of the delivery of their licensed child. What result under the broadest generic reading of Roberts' opinion in Sebelius? Merely another otherwise unconstitutional exercise rendered permissible via the inclusion of a tax as an alternative to actual compliance? Perhaps.

Will it happen? No. Why? Because tar, feathers, lengths of rope & lamposts would suddenly be back in vogue ... and because no politician advocating such measures could win office after doing so. It's a political impossibility because of the ballot box. That's the only defense we have to an out-of-control federal government; it's the only one we've ever had.

Posted by AzCat 2012-07-02 23:58|| 2012-07-02 23:58|| Front Page Top

23:58 AzCat
23:35 rjschwarz
22:51 swksvolFF
22:49 GORT
22:34 AzCat
21:44 Secret Asian Man
21:16 lotp
21:13 lotp
20:37 trailing wife
20:31 trailing wife
20:22 Frozen Al
20:22 trailing wife
20:19 Frank G
20:12 Frank G
20:11 trailing wife
19:37 phil_b
19:00 trailing wife
18:58 Procopius2k
18:54 trailing wife
18:40 Airandee
18:32 Glenmore
18:32 Alaska Paul
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18:21 swksvolFF