Monday Morning GBH Blues

Dear Dr. Bones,

Here is another Challenge-and-Response exercise for your collection that Paddy and Eye prefer not to bother the honourable and learned perp about to his facebook:

Here’s why the Affordable Care Act is constitutional. david | Sun, Apr 8, 2012 7:22 PM EST I’ve been thinking about this for a while, but haven’t had a chance to put pen to paper, to use a thoroughly outdated metaphor. So here it is: the Affordable Care Act is constitutional for two straightforward reasons that should have been obvious to the Justices, but that unfortunately were not laid out nearly as clearly and concisely as they should have been: ((A)) he health care market is unique and is profoundly unlike any other market in the U.S., for one simple reason; and ((B)) The “individual mandate” is not a mandate at all. (( Snip A altogether and preliminary skirmishing about B )) [T]he “mandate” isn’t a mandate at all. It’s a choice: you can carry health insurance according to the terms of the Affordable Care Act, or you can see your taxes go up a bit. That’s it. ((...))) [W]hen you see it in those terms, how is the “mandate” any different from any of the other numerous incentives that Congress has written into the tax code over the years in order to encourage behavior that it deems socially beneficial? If you hold a home mortgage loan, if you buy a hybrid car, if you replace your windows, if you donate to charity, even if you are self-employed and buy health insurance, that behavior affects your taxes. True, in the case of the Affordable Care Act, your failure to behave the way Congress wants you to means that your taxes go up, whereas in the examples I gave your engaging in the favored behavior means they go down. Is that a difference of constitutional magnitude? Frankly, I cannot imagine why it should be. The “individual mandate” in the Affordable Care Act is often compared to a state’s “mandate” that anyone who drives a car must carry car insurance. But the Massachusetts car insurance law shows us what a real mandate looks like (( Snip statute-book details and all the rest ))

Ad quem responduisset Patricius

Now if Eye was the Shyster Community (( fold here )) instead of only a lone-wolf lay sheep, I should excommunicate this ratf... ... this person at once. The Dignity of Jurisprudence is affronted by the notion that great controversies are to be resolved on the basis of sudden, hitherto unheard of brainwaves. That plan may suffice for Romantic poets, and hack pols on the stump, and penners of advertising copy. Indeed, my understanding is that that sort of ‘inspiration’ is rather a plus than a minus in those lines of work. Inside the Temple of Rulalaw, however, nothing could be more out of place. Worse, the Dignity of Jurisprudence is impaired as well as affronted. That is to say, the masses will not long retain their traditional respect for their litigation-forged Betters if we once get the notion into our silly little heads that Mason, Esq., is just making all that inscrutable techical stuff up on the spot as he goes along. By "inscrutable technical stuff" Paddy refers, inter alia, to the "THAT, friends, is a mandate" ploy. The volksy manner in which the ployster reaches up his sleeve to pull out his nifty new ace of trumps and take the trick, at least to his own self-satisfaction, gives away that what we have here is performance art, not Law [*] once known and revered here in the holy Homeland™.

Happy days.
--JHM

___
[*] Now that "intellectual foundation" is more often drooled of than quested for and built upon, it may be necessary to explain, for those of them at Rio Limbaugh and a few others, that Eye make this summary ruling with an Aristotelian gavel, as it were, with the gavel labelled "Form trumps matter." Counselor’s indecent volksiness would matter most to this ‘friend’, even were the substance of his argumentation drawn straight out of Magna Carta or the Discorses on Dávila.

The formal offense is aggravated by the circumstance that Counselor gives no clue whence his stuff is drawn. The passage referenced in the General Laws does not supply a definition of ‘mandate’, it only constitutes an alleged example of the thing. To make the allegation with a straight face, one must already have swallowed the nifty whizkid neonotion about the True Meaning of ‘mandate’; otherwise, there exists nothing in particular for the Davidian cleverness to be an example OF.

Alio modo: Counselor is in effect suggesting to the dread Five of Nine that they think of the Patient Protection Act the same way official Massachusetts thinks of operating murder vehicles without liability policy, bond, or security deposit. There is no harm in that that Eye can see, but also scarcely any merit, for the next shyster in the queue can suggest, with no smaller quantity of the "intellectual bottom" product, "No, don’t listen to him. Your Honours must think of Obamacare rather as official Wyomin’ thinks of cattle rustlin’, see Chapter so-an’-so of Section IV (4) (81)."

Or whatever. Sometimes an analogy is only an analogy. Certainly ‘mandate’ is no better than suggestive analogy when it gets brainwaved the way it was here.

What the Master would presumably call "The Form of Suggestive Analogy" fits in nicely with the professional requirements of a Giacomo Leopardi quâ poet, or of a Johannes von Böhner as hack pol, or of all the Willi Munzenbergs of Madison Avenue, but Perry Mason should probably leave it alone. If Perry does resort to this sub- or extra-jurisprudential poison gas, he should make very clear, it seems to me, that he knows what he is about. He might, for one possibility, say in so many words "Your Honours might want to look at it like this, ..," making it evident that he understands in advance that Their Honours very well might not care so to look at it.

Once the jolliness is over and the dust has settled a little, I daresay Mason, Esq., can scribble without impropriety on some factional website that Their Honours proved themselves legal heroes, by doing as he so poetically hinted that they might, or legal zeroes by doin’ otherwise. Nobody of any importance to public affairs is likely to mistake that brand of self-ventilation for a serious contribution to Rulalaw.