09 October 2010

All Mandate All The Time At VC Conspiracy

The health care reform law imposes tax penalties far smaller than the cost of obtaining health insurance on some people who don't get health insurance by 2014 and increases this amount over several years. The individual health care mandate does, indeed, fall quite a bit short of its name. Indeed, it isn't even quite as forceful as a true tax penalty. Unlike most tax provisions, the full array of tax debt enforcement laws aren't available to enforce a failure to pay this particular penalty.

The mainstream consensus in the legal community is that this is a constitutional law. The argument against it is unconstitutional is fantasy constitution stuff.

The health care reform law is unexceptional on the merits, compared to all sorts of legislation upheld under the tax code and the interstate commerce clause and the necessary and proper clause of the U.S. Constitution. Congress has exceedingly broad legislative authority and nothing in this legislation is exceptional compared to other laws that have been upheld in the past. The U.S. Supreme Court has recently cited with approval as good law, for example, a depression era case that upheld the constitutionality of federal regulation of wheat grown for personal consumption entirely within a state.

The only thing different about the health care reform law from some of the other laws is the outsized hysteria of its opponents, something typical of the Tea Party movement.

But, some politically motivated attorneys-general decided to challenge the law on constitutional grounds as an election year stunt (Colorado Attorney General Suthers among them), as have some private parties, producing several court cases related to the issue. Several co-bloggers at the libertarian leaning blog, The Volokh Conspiracy, signed onto an amicus brief in Virginia litigation by the Virginia Attorney General and supported by AGs from so other states, challenging the constitutionality of the law. Other co-bloggers agree with them but weren't in on the brief, and at least one member of the group blog thinks that the law probably is constitutional.

Intra-group blog dissent related to posts around first the amicus brief filing in Virginia and then the ruling of a U.S. District Court judge in Michigan upholding the constitutionality of the law, has produced lots of posts on the subject.

There were 15 posts on the constitutionality of the Individual Mandate on the VC Conspiracy blog in four days last week, which is far outside the realm of the normalcy for that blog.

On October 4, 2010, is a post describing the blog author's involvement in the parallel Virginia case (three signed onto an amicus brief), and others support it. There is a follow up on the amicus brief filing the same day.

On October 5 is a lengthy post explaining the reasoning in the brief.

On October 6 is post by a member of the group blog tentatively suggesting that the mandate is constitutional. A post rebutting the arguments there is made the same day. Followed by a response the same day to the rebuttal, which is answered by a fourth post in the dialog, that leaves to the fifth post in the day's dialog on the subject, which in turn leads to a sixth post in the day's dialog.

October 7 produces a post covering the Michigan judge's ruling upholding the mandate as constitutional, followed by a co-bloggers post on the same subject,.

October 8 produces a post critiquing the two posts of the previous day on the subject, a follow up post on the ruling, and a post identifying another commentary on the ruling, and a metastory on media coverage of the ruling.

Fair is fair, and VC is a libertarian blog with all of its political implications. I keep it in my sidebar and read it with some regularity, because it covers a lot of interesting legal issues and tends not to be reasonably moderate and reality based while advancing its member's agenda, which is also heavy on Second Amendment rights, free speech, war powers, political theory, and the role of state power with an ideological component in child custody litigation. Both ordinary conservatives and ordinary liberals, as well as libertarians, discuss current events and legal obscurities with a fair amount of civility for a high traffic, large comment volume blog.

It is disappointing to see so many of the blog's participants move into the cranky zone in their legal thinking. I am at heart, a good government inclined believer in the importance of making policy by developing consensus through discussion that identifies shared facts and shared understanding of existing legal precedents whenever possible. I think it is important to distinguish between what the law is, and what you would like it to be, and that muddling those two concepts, as tempting as it can be to do so, usually leads to mischief. I also think that there its important to distinguish between incremental developments of existing legal theories, and radical ideas that contradict existing precedents.

But, I can certainly sympathize with the problems that arise when co-bloggers in a group blog get crosswise with each other. This blog itself owes its existence to my determination that if I was going to blog as a hobby that I didn't need to have a co-blogger criticize me in an uncivil and unjustified way at my own blog (my former group blog was Political State Report, which subsequently basically collapsed for a long period of time after valiant and well meant efforts to save it, and hasn't has a new post for a little more than two years.

It will be interesting to see if the VC Conspiracy survives its latest rift over the individual mandate with all of its members. Its popularity may be enough to give everyone involved an interest in saving it. But, it is easy for heated discussions to boil over in the blogosphere.

1 comment:

Andrew Oh-Willeke said...

Ten more posts October 14-15 in response to a Florida court ruling not dismissing a challenge by attorneys' general for want of standing.