Friday, June 29, 2012

A moment of Burkean minimalism and self-control

I have half a mind to congratulate myself—some friends say that's all the mind I have for any purpose whatever—on Monday's post where I called the Roberts ruling on the PPACA. But it will make me prouder if I handle this with Burkean minimalism and self-control, listening to what others have to say.

Here, incidentally, is some minimalist language from Edmund Burke, on the subject of the ex-Governor General of India, Warren Hastings, whose impeachment Burke was leading in the Commons: he
called Hastings the 'captain-general of iniquity'; who never dined without 'creating a famine'; his heart was 'gangrened to the core' and he resembled both a 'spider of Hell' and a 'ravenous vulture devouring the carcases of the dead'.
James Nixon (1741-1812), The trial of Warren Hastings. From 1st Art Gallery.

David Brooks:
Granted, he had to imagine a law slightly different than the one that was passed in order to get the result he wanted, but Roberts’s decision still represents a moment of Burkean minimalism and self-control.... [jump]
Roberts redefined the commerce clause in a way that limits the power of Washington. Congress is now going to have to be very careful when it tries to use the tax code and other measures to delve into areas that have, until now, been beyond its domain.
Don't know what that first sentence means, but I'm in love with it all the same. Is he saying that Roberts ruled on an imaginary law of his own devising rather than the one he assigned himself? How would that work exactly? Is there textual evidence in the ruling? Or are the two laws exactly alike, the only difference being that Roberts wrote one of them instead of Congress, like Pierre Menard writing Don Quixote...

Or does Brooks mean to suggest that the Chief Justice, wishing for his own minimalist and self-controlled ends to let the ACA stand, sort of pretended to find it constitutional (tax) when it really in some way wasn't (Commerce Clause)? The secret aim being actually to get rid of the traditional use of the Commerce Clause to justify whatever the Congress can rouse itself to do in the way of promoting the general welfare?

Afterthoughts: You might say there is some textual evidence. The Chief Justice "imagining" the law is from Justice Kennedy's dissent, which really does accuse Roberts of "rewriting" it, and the rewriting consisted of referring to the fine to be paid by persons who fail to buy insurance as a tax:
“In a few cases, this Court has held that a ‘tax’ imposed upon private conduct was so onerous as to be in effect a penalty,” the dissent reads. “But we have never held—never—that a penalty imposed for violation of the law was so trivial as to be in effect a tax. We have never held that any exaction imposed for violation of the law is an exercise of Congress’ taxing power — even when the statute calls it a tax, much less when (as here) the statute repeatedly calls it a penalty.” (Politico)
I have a feeling, incidentally, that Kennedy probably is one of those unlucky people with a genetically transmitted inability to enjoy the taste of broccoli. Scalia just jokes about it in his careless way, but Kennedy believes him, shudders, and can't bring himself to vote with the majority.
Anthony Kennedy's nightmare. From Thefamilyghost14.
Some Republicans love calling it a tax, of course, because then they can go on saying that proves Florida Governor Rick Scott was correct in calling the ACA the "biggest tax increase ever in American history", only it isn't:
But it is not a massive tax hike on the middle class, much less the biggest tax hike in American history. The tax imposed by the individual mandate amounts to either $695 or 2.5 percent of household income for those who don’t have insurance and are not exempt based on income levels. By comparison, the payroll tax cut extension Republicans repeatedly blocked earlier this year would have added 3.1 percentage points to the tax and cost the average family $1,500 a year.
The mandate, meanwhile, would hit a small amount of Americans — somewhere between 2 and 5 percent — according to a study from the Urban Institute.
Tim Egan:
Jeers to Mitt Romney! As the presumptive Republican nominee for president, he stood in front of the Capitol just after the Supreme Court ruling on Thursday and promised to fight in the coming campaign against one big idea — his own. Now Romney has no choice but to run against himself.
There's an idea for Willard—a kind of forlorn hope strategy. Given that nobody likes him, what better way to attack Obama than as a Romney clone? "Ladies and gentlemen, he's only an imitation—a pale imitation—of me, with his stupid health care bill and his stupid idea of bailing out General Motors. There's not a dime's worth of difference between the two of us, except—except I'm willing to change! Think about it; vote for him, and you're stuck with me. Vote for me, and who knows what you get?"

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