The October 14 Federal Court Decision in Florida is a Big Setback for ObamaCare

Alice in Wonderland notwithstanding, Congress must say what it means and mean what it says.

In an order released on October 14 in State of Florida, et al v. Dept. of Health and Human Services, et al , Judge Vinson of the U.S. District Court for the Northern District of Florida, Pensacola Division, permitted an action by twenty states challenging the mandatory health insurance provisions of ObamaCare to go forward. As noted here,

In his ruling, Vinson criticized Democrats for seeking to have it both ways when it comes to defending the mandate to buy insurance. During the legislative debate, Republicans chastised the proposal as a new tax on the middle class. Obama defended the payment as a penalty and not a tax, but the Justice Department has argued that legally, it’s a tax.

Beyond Judge Vinson's apt characterization of the government's approach as an "'Alice in Wonderland' tack" (see below) the most interesting part of the decision deals with the difference between between a tax and a penalty and why it matters. The Congress knows how to impose a tax when that is what it intends. Judge Vinson observed that since the mandatory insurance provisions were not referred to in the legislation as a "tax" but as a "penalty," as well as for additional reasons (including, for one example, the tanning facility tax, clearly intended as a tax and labeled as such), it is "manifestly clear" that the Congress intended to impose a penalty rather than a tax.

This distinction is crucial, because rather than purport to rely on its rather broad taxing power under the Constitution, the Congress relied exclusively upon its somewhat less broad Constitutional power to regulate interstate commerce among the several states in enacting the mandatory health insurance provisions of ObamaCare.

Perhaps most significantly, the Act does not mention any revenue generating purpose that is to be served by the individual mandate penalty, even though such a purpose is required. . . . Nowhere in the statute is the penalty provision identified or even mentioned as raising revenue and offsetting the Act's costs.

* * * * *

Reviewing courts cannot cannot look beyond a statute and inquire whether meant something different than what it said. . . . .

I have no choice but to find that the penalty is not a tax.

Judge Vinson continued, noting that by declaring the provision a penalty rather than a tax the Congress reaped a political advantage

Congress should not be permitted to secure and cast politically difficult votes on controversial legislation by deliberately calling something one thing, after which the defenders of that legislation take an "Alice in Wonderland" tack and argue in court that the Congress really meant something else entirely, thereby circumventing the safeguard that exists to keep their broad powers in check.

Amen.

Judge Vinson then disposed of questions of ripeness and standing in favor of the Plaintiffs but rejected the plaintiffs' contentions that requiring employers, including state governments, to provide health insurance for their employees and requiring states either to provide health insurance exchanges or have the Federal Government "develop and implement" such exchanges for them unduly infringed upon state sovereignty. However, he found that the states had presented plausible arguments as to compulsion under certain funding provisions for Medicaid (which he characterized as a close question).

Judge Vinson then proceeded with a preliminary analysis of the legitimacy of the mandatory health provision under the Commerce clause, the essential part of the decision. Noting that the Federal Government had never before sought to regulate economic inactivity by requiring people residing in the United States to buy something, he observed:

[T]he Commerce Clause and Necessary and Proper Clause have never been applied in such a manner before. The power that the individual mandate seeks to harness is simply without prior precedent. The Congressional Research Service (a non-partisan legal "think tank" that works exclusively for Congress and provides analysis on the constitutionality of pending legislation) advised Congress on July 24, 2009, long before the Act was passed into law, that "it is unclear whether the [Commerce Clause] would provide a solid Constitutional foundation for legislation containing a requirement to have health insurance." The analysis goes on to state that the individual mandate presents "the most challenging question . . . as it is a novel issue whether Congress may use this clause to require an individual to purchase a good or service." [In Supreme Court cases involving accommodating Blacks in motels and growing wheat] [a]ll Congress was doing was saying that if you choose to engage in the activity of operating a motel or growing wheat, you are engaged in interstate commerce and subject to federal authority.

But in this case we are dealing with something very different. The individual mandate applies across the board. People have no choice and there is no way to avoid it. People who fall under the individual mandate either comply with it, or they are penalized. It is not based on any activity that they make the choice to undertake. Rather, it is solely based on citizenship and being alive. . . .

Of course, to say that something is "novel" or "unusual" does not mean that it is "unconstitutional" or "improper." There may be a first time for anything. But, at this stage of the case, the plaintiffs have most definitely stated a plausible claim with respect to this cause of action. (emphasis in original)

Judge Vinson thus permitted the case to go forward for trial on December 16^th and quite possibly motions for summary judgment.

Judge Vinson's remarks in his Conclusion quote these words from the Supreme Court:

Some truths are so basic, like the air around us, they are easily overlooked. Much of the Constitution is concerned with setting forth the form of our government, and the courts have traditionally invalidated measures deviating from that form. The result may appear "formalistic" in a given case to partisans of the measure at issue, because such measures are typically the product of the era's perceived necessity. But the Constitutions protects us from our own best intentions; it divides power among sovereigns and among branches of government precisely so that we may resist the temptation to concentrate power in one location as an expedient solution to the crisis of the day.

Despite the displeasure noted by the White House, the case will thus proceed, and it rather clearly suggests that the outcome may be very different from that recently where U.S. District Judge George Steeh in Thomas Moore Law Center v. Obama on October 7^th rejected claims that the individual mandate exceeds Constitutional authority under the Commerce clause. Judge Vinson's decision appears to be the better reasoned of the two and it seems likely that in Judge Vinson's court the government will have a tough roe to hoe in convincing him that the individual mandate meets Constitutional standards.

I also find very encouraging the judicial reaffirmation that when the Congress expressly states its Constitutional authority in enacting legislation, it should be bound by it and not wander off into other possible (but rather improbable) realms to justify the legislation before the courts. ObamaCare was passed, not as justified by the taxing authority but as authorized under the Commerce clause. If it is is not permitted under the Commerce Clause, as it probably is not, it must fall.

Also published at Opinion Forum.

Swarm Theory and Politics

First published at Opinion Forum.

Can analogies be drawn between insect swarms and human political activity?

Stink bugs have been swarming in Washington, D.C. where, unlike CongressCritters, "they really cause no harm. . . . just a nuisance." Fortunately, the Congress has adjourned.

The swarming addressed here can be more than just a nuisance. Sometimes the results can be seen as good or bad depending on what one wants. Swarming (as distinguished from smarming, a human social and political tactic) is a natural phenomenon permitting essentially brainless creatures -- ants, bees, other insects and some fish -- to thrive through apparently instinctive collective reactions to external stimuli. Maybe swarming also illuminates some species of political behavior.

Ants and bees construct truly ingenious structures in which to live and breed and which they protect when endangered. If a bee hive is destroyed the surviving queen leaves, followed by a swarm, and they get busy building a new hive -- without the help of FEMA, federal grants or other financial stimuli. Ants do much the same with great industry. The nests of some ant colonies extend for many miles underground.

In Europe, one vast colony of Argentine ants is thought to stretch for 6,000km (3,700 miles) along the Mediterranean coast, while another in the US, known as the "Californian large," extends over 900km (560 miles) along the coast of California. A third huge colony exists on the west coast of Japan.

As with bees, ant colonies are marvels of architectural sophistication. Highly unintelligent creatures, apparently lacking even a sense of their own existence or that of their fellows, acting collectively and instinctively in swarms, they can do some things as least as well as can individual humans and can exhibit collectively something resembling individual human intelligence and activity. As a point of at least minor interest, humans are thought to have a biomass of approximately 335 million metric tons and ants of between 900 and 9,000 million metric tons. Bee biomass is thought to be declining, but I couldn't find any numbers.

When an ant leaves its nest to forage for food it takes an apparently random path. When it finds food, it carries it back to the nest leaving a trail of chemical signals called pheromones. Other ants also go out looking for food and when they find it they do the same things. There being no welfare system, when the first ant returns with food others follow its pheromone trail back to the food source and return by the same path, leaving additional pheromones. The pheromones are short lived, so once a food source is exhausted and unsuccessful ants have abandoned it and gone looking for other sources, the old trails evaporate. When new sources of food are found the ants returning to the nest with food leave new pheromone trails to be followed by others until they in turn evaporate. There is a lot more to it than that and there is a mountain of literature on the subject of swarming; a bit of it is available here.

Computer programs based on ant behavior abound and parcel delivery services use them daily to determine the most efficient routes for their trucks. Much of the traffic on the internet is routed using similar ant-based algorithms. Some suggest that the human brain itself involves swarm theory, "even complex cognitive functions, such as abstract reasoning and consciousness." Maybe our brains resemble bee hives, although in some cases that might be an insult to the bees.

In 2002, Michael Chichton (1942 - 2008) wrote Prey about a nanoparticle project gone very wrong. Nanoparticles are microscopically small, dust like things. The idea was to use swarms of nanoparticles, some with visual, some with aural and some with other capabilities, to conduct military surveillance and for other purposes. However, they inexplicably "evolved" very quickly -- a generation was of about three hours duration -- and began to reproduce as well as to swarm in unforeseen ways. The novel leaves unanswered the question of whether the human race survived. Scary and far fetched, but not as far fetched as one might think. The United States military have been looking seriously at swarm behavior since before 2000. Murphy's law, that whatever can go wrong will at the most inopportune time, is similar to the concept of the fog of war, where ambiguity, chance and chaos, with all of their non-linear recursive complexities, continue to play important roles despite (or perhaps because of) advances in command and control equipment and procedures leading to information overload. Small events can have large consequences. Multiple articles are collected here. The military apparently envision using large numbers of inexpensive, highly expendable and essentially autonomous robotic devices to accomplish various missions. These are not the remotely controlled unmanned drone aircraft currently in the news.

[C]urrent UAVs require at least one operator per UAV, despite technological advances that make it possible to deploy hundred (if not thousands) of inexpensive [UAVs]. This requirement not only increases expense, but makes coordination among UAVs more difficult.

Recently swarm technology has been suggested as a possible solution to automatically control and coordinate multiple UAVs. Swarms consist of a large number of distributed, parallel-acting individual entities coupled with primitive communication mechanisms such as chemical markers. The idea behind a swarm is that simple local rules that govern the behavior of individual entities can lead to complex emergent [self-taught] behavior of the system as a whole. For example, it might be possible to conduct a search and destroy operation. Rules include ideas such as “avoid areas already searched” or “avoid UAVs within a certain radius.”

Cheap and stupid robots are in some cases more effective than teams of intelligent soldiers with assigned specialties. Soldiers think and adapt quickly to changing conditions. The loss of even one with a critical task can cause a mission to fail. Although robots don't "think," they too can react very quickly to changing stimuli. They are homogeneous and can be numerous. The loss of some is matter of little consequence to the mission. Are nano devices being considered? So it appears.

People obviously (with few exceptions) are individually far more intelligent than are ants and human swarms are less common than with bees. Still, sometimes they occur. At a hotly contested rugby match, something similar to a swarm sometimes occurs. A sense that team A won unfairly (or simply because it was team A rather than team B) can cause a major riot of thousands of spectators. "Deprived youths" in some nascent Islamic countries swarm to offer burnt automotive sacrifices to their image-phobic god, while others, perhaps more devout, riot self-destructively to allay cartoonish offenses to theirs. A racial incident can cause similar rioting, particularly if stimulated by queen bees and lesser luminaries; great and self-destructive damage to the infrastructures of the communities from which the rioters hail is common. They "lose their minds" and become a swarm. "Damn those jerks! We'll show them. Let's burn our houses! Yeah! Let's!" The phrases "herd mentality" and "mob mentality" are commonly applied. This sort of thing occasionally happens in politics. The politically inspired race to judgment over the activities of the "elite" Duke University lacrosse team vis a vis a stripper may have been a minor example of something similar; the queen bees were very busy.

On the other hand and in a different context, some beneficial things can result from conduct resembling but not amounting to true swarm behavior.

[T]op-down management is viewed as a forced, and thus, ineffective approach. We say that the bottom-up thrust is based on the world's creatures' success with 'emergence', 'swarm theory' or 'chaos theory' a bottom-up approach used by ants, bees,birds and even trees[??]. Its basis is that small simple local decisions, if allowed to develop and follow their own path under an overall strategic guidance of process, will lead to an elegant solution - not just a better solution but a superior solution that no single individual could likely have conceived.

I don't know about the trees, but does this at least remotely suggest T.E.A. party organizations to anyone else? According to this Wall Street Journal article, individual groups called "tea parties" remain highly diverse but are coalescing in pragmatic fashion to the extent necessary to achieve their basic goals. It seems to be a bottom up, and far from top down, phenomenon.

Statism and the accompanying central (top down) planning, direction and control of human conduct are fatally flawed but might work well in an ant colony or bee hive, provided the insects were not thereby deprived of their autonomous nature. If Venezuelan el Presidente Chávez could wiggle his buttocks like a queen bee and invoke consistent and reliably productive responses by the masses, Venezuela might be a viable machine for creating stuff. He can't and it isn't because that's not the way in which humans have evolved. There are other problems:

we know that complex systems are exquisitely sensitive to initial operating conditions and that interventions can have disproportionately large or small implications depending upon timing, etc. . . .

Central planning does not, and cannot, take into account apparently insignificant changes which can have very important effects.

North Korea seems to offer the best current example of remarkably unsuccessful quasi-swarm-based human endeavor. Fortunately, elsewhere in politics there tends to be substantial diversity of opinion transcending the charisma of queen bees. Although the power of a queen bee once firmly entrenched is difficult to undermine it is possible. Senator Obama managed to displace Senator Clinton as queen bee in 2008. Now many of his swarms of worker bees are wondering what happened and may be looking for a replacement. Many who didn't like but voted for him in 2008 are also doing so. Does Governor Palin seek to be Queen Bee (at least for a day)? I don't think so and hope not.

Humans are neither ants nor bees and we don't have the same instinctive reactions. Leaders are necessary and as long as their pheromone trails lead to what we desire we follow them. Also like ants, when they don't we stop. Unlike ants and the folks in North Korea, we get to decide what we want and whether the paths directed by our leaders are likely to be fruitful. Sometimes we screw up in deciding what we want and how to achieve it, and we ultimately pay the price as we -- and the queen bees -- must. When members of the political class see the "unwashed masses" as bees ready to swarm, they sometimes are not too far off and sometimes they are. Even bees and ants respond to new external stimuli and their behavior can't always be predicted accurately; the results can be chaotic and chaos theory is very much implicated in swarm theory; maybe with an explanation by Uncle Jay it would all make more sense.

Does swarm theory have any significant relationship, at least by analogy, to political behavior or would a suggestion that it may be faddish? I don't know, but the concept is worth keeping in mind as we decided how to cast our votes next month and reflect upon the outcome.

Drunkblogging Modest Proposals

We demand much more Booze Change because we need it.

The word is so screwed up that even our highly intelligent and resourceful President Obama can't deal with its myriad complexities. Things need to be simplified and a drunk, a lunatic or a leftist is needed. I possibly qualify on the first two counts. Farcically Facially radical but really simple change we can believe in offers the only possible solutions and I have them.

In an earlier article, I suggested that some of the country's many problems could be ameliorated by simply moving the Seat of Government (and all of its bursting appendixes) to Haiti. This will not only save lots of taxpayer government money, it will also improve both Washington and Haiti. However, we must not ignore other major problems. Heck, the slaves in the United States still need to be freed. What are we waiting for? This article offers a few additional modest proposals for true change.

The United Nations must abandon decadent New York City and relocate to some less expensive place more in keeping with its lofty humanitarian principles. As a side benefit, the UN Headquarters will become a really cool mega-mosque-community center where people of every race, ethnicity, religion, nationality and ideology can come together in peace and harmony -- as they now do so effectively at the UN. Even though not as close to Ground Zero as some desire, it will be a compromise welcomed by all.

Somalia comes immediately to mind as a new home for the UN but there are many deserving alternatives. Saudi Arabia, Yemen, Iran and the Democratic People's Republic of Korea (DPRK) are among them. The advantages would be numerous. Since Luputa exists only in fiction, it could well be even better.

For the rest of the article, go to Pajamas Media, where it was published on October 5th.