Visual History of Halloween
Via Coolinfographics.
Proof of Relativity
Forget about what happens when you turn on the headlights of the spaceship you’re piloting at the speed of light. Christoph Niemann brings relativity down to earth:
Based on supercomplicated physical observations, Einstein concluded that two objects may perceive time differently.
Based on simple life experience, I have concluded that this is true.
Our son played monster trucks on our sleeping bodies the morning of the day I saw this. I am now deploying special pillow defenses on my side of the bed, which at least provides a buffer against the initial shock of such rude awakenings. That way I’m already awakened by the commotion on the other side of the bed before I become the victim of toy-vehicular battery. Still not very awesome, though.
Via Austin Frakt.
Assassin Bugs
Need an idea for a Halloween costume? Try covering yourself in a mound of corpses like these assassin bugs:
Apparently this will also make you unappetizing to spiders. Via Ed Yong.
Metaphysical Gymnastics
In his decision (pdf) for the federal District Court in Michigan upholding the ACA’s individual mandate, Judge Steeh claimed to have resolved the issue without resorting to “metaphysical gymnastics.” He seems to have meant that it did not take long chains of inference and speculation to reach his conclusion, but only simple articulation of the effects of uninsurance on interstate markets in healthcare services and financing. Those effects are direct, in the form of $43 billion in unreimbursed-service costs shifted onto other market participants.
Having no love for gymnastics or metaphysics myself, I would gladly agree that the twain should not meet to determine the outcome of this case. The trouble is, while I appreciate the judge’s sentiment, his use of the phrase drew my attention to a serious defect in the opinion: its central holding turns largely on abstract manipulations of semantics and logic best described by the phrase “metaphysical gymnastics.”
The Supreme Court has set the outer bounds of the Commerce Clause at regulation of “activities that substantially affect interstate commerce.” The problem, for ACA supporters, is that being uninsured is not really an activity in any straightforward way. In plain English, it’s what we call a “status.” In ACA-litigation-ese, the challengers refer to it as “inactivity.”
Steeh’s key move is to say that Congress may regulate individuals’ “economic decisions” that substantially affect interstate commerce. “Far from ‘inactivity’,” says the judge, these decisions have very important consequences.
Well, ok. But inactivity can have important consequences, too. Having consequences does not make the difference between act and omission, or activity and inactivity. And while it’s true that many people, including the Thomas More Law Center plaintiffs, do actively decide not to obtain insurance, you don’t actually have to make such a decision to be uninsured. But if you are uninsured in 2014—whether you decided to be or not—the ACA will hit you with a penalty.
Judge Steeh cites cases (Raich, Wickard, Heart of Atlanta Motel) supporting the notion that the Commerce Clause may reach people who have decided not to engage in certain commercial transactions. But these cases are pretty easy to distinguish; they involved plaintiffs who first voluntarily undertook some economic activity that subjected them to regulation, and then sought exemption from regulation for some incidental activities or decisions. The regulations were upheld in those instances because the plaintiffs were already on the hook.
Here, the individual mandate does not target people who engage in a specific, voluntary activity that brings them within the ambit of the ACA’s regulation of interstate commerce in health insurance. The only way a court can find otherwise is to posit a new class of “activity” that bridges the gap between the kinds of transactional activities typically subject to regulation and the negative relational status of not engaging in such activities.
Or look at it this way: Congress may regulate interstate commerce in insurance markets, including transactions for the purchase of insurance. So if you buy insurance, federal regulations may govern your duties under your insurance contract. But under the ACA’s individual mandate, federal insurance regulations also purport to impose duties on you even if you do not transact to purchase insurance. Indeed, under Judge Steeh’s reasoning, it is your very decision not to buy insurance that subjects you to the ACA’s insurance regulations—even if you did not actually make such a decision.
There’s a nice phrase to describe such reasoning.
Outlining the Case for an Activity Requirement
For years it has been de rigueur in Commerce Clause cases to quote the rule that sets its outer bounds at regulation of “activities that substantially affect interstate commerce.” But the Supreme Court has never directly faced the question of whether the target of congressional regulation under the Commerce Clause must be an activity per se.
It’s possible that “activities” was just chosen as a sort of generic sentence-filler noun that sounded more supreme courtly than, say, “stuff that substantially affects commerce.” That is, it’s possible that the Court never really meant that the target of regulation must be an activity, but just that it must be something that substantially affects commerce.
Possible. But anyway, the question now is: should there be an activity requirement? There’s a reasonable case that such a requirement follows from background constitutional principles.
One of those background principles is that federal government is a government of limited powers. That’s not necessarily an idea that is determinative here, because we’re arguing about how limited those powers are. But it is important to bear in mind, as it is the kind of traditional, doctrinal gloss the Supreme Court is sensitive to. The Court’s conservatives, in particular, can be expected to look for ways to confine the Commerce Power within traditional boundaries.
Also in the background is the “anti-commandeering principle.” This is the (here, greatly simplified) idea that the federal government can’t just order state governments to do things. It must have a hook. It can regulate where the states are already engaged in doing something, and it can give them (non-coercive) incentives to do things. But generally, it can’t just say: do this. Libertarian legal scholar Randy Barnett has gotten some traction lately with his argument (pdf) that this principle applies also to federal government action vis-a-vis private individuals, not just vis-a-vis states.
Another part of the rationale here is that an activity requirement would give citizens a chance to avoid regulation if they wish. That is, it would give meaning to the idea that the government should give citizens fair notice of the laws and regulations to which they are subjected. Notice is isn’t much good if the citizenry can’t conduct themselves in such a way as to avoid application of the law they’ve been given notice of.
Boiling it all down: you need a volitional act, with fair warning of the consequences for that act. If that volitional act, alone or in conjunction with other acts of the same ilk, substantially affects interstate commerce—or, if regulation of that act is essential to a comprehensive scheme of regulating interstate commerce—then Congress would be permitted to regulate that act under the Commerce Clause. A private individual would be exempt from federal regulation until she took some positive action to bring her within the sphere of federal power.
The activity requirement would be like a line in the sand. Cross it, and you’re subject to the feds. Now, an act/omission distinction of this type does not necessarily present a perfect, bright line. Orin Kerr has posed some interesting questions exploring this territory. But I think the important thing about a line in the sand is not that it clearly divides the space on either side of it, but that it causes people to be mindful of where they step in relation to it. That signaling function, I think, also serves as fair warning to those stepping in any gray area around the line.
The Heart of the Matter
The key to last week’s federal District Court decision (pdf) upholding the ACA’s individual mandate is how Judge Steeh dispenses with the challengers’ arguments that the Commerce Clause does not authorize Congress “to regulate inactivity, or a person’s mere existence within our Nation’s boundaries.”
Here’s the crucial passage:
Far from “inactivity,” by choosing to forgo insurance plaintiffs are making an economic decision to try to pay for health care services later, out of pocket, rather than now through the purchase of insurance, collectively shifting billions of dollars, $43 billion in 2008, onto other market participants. As this cost-shifting is exactly what the Health Care Reform Act was enacted to address, there is no need for metaphysical gymnastics of the sort proscribed by [the Supreme Court's decision in] Lopez.
Let’s tease that out a bit:
The challengers say Congress may only regulate activities under the Commerce Clause; being uninsured is a status1, not an activity; the individual mandate is a regulation of status; and therefore, it is not within congressional authority under the Commerce Clause to impose the individual mandate.
Judge Steeh says no, Congress can regulate “economic decisions” that affect interstate commerce, and the plaintiffs’ and others’ decisions not to get health insurance has a substantial aggregate effect on healthcare markets.
Who’s right? The answer, I think, is that we don’t know. It’s an open question—an “issue of first impression,” as they say in the biz. Until now, as Judge Steeh notes, the Supreme Court has never had occasion to examine the activity/status (or “activity/inactivity”) distinction with respect to the commerce clause and has never actually spelled out an activity requirement.
As a supporter of health reform in general and the ACA’s regulatory scheme in particular,
I’m happy about the outcome of the Michigan case, but deeply suspicious of its reasoning. That’s partly because skepticism is in my nature. But partly it’s because, when it comes to metaphysics, I don’t like gymnastics.
I’ll elaborate in another post.
- Actually, they say that being uninsured is a kind of “inactivity.” I don’t find that to be the most helpful formulation. But there’s a reason for it: the challengers want to emphasize that there is a “mandate” that applies to everyone—not just a “penalty” that applies to the uninsured. The distinction makes a difference—I think—with respect to the question of whether the minimum coverage provisions are a valid exercise of the taxing power. [↩]
Health Reform Litigation News
I’m working out some posts on the two big pieces of ACA litigation news from this past week. First, regarding the decision by the District Court in Michigan upholding the individual mandate, I’ll recommend a splash of cold water before celebrations commence. And second, regarding the District Court ruling in Pensacola (my hometown), it’s important for nonlawyers to understand the significance of procedure at this stage. When the Administration (the defendant) moves to dismiss for “failure to state a claim upon which relief can be granted” (Rule 12(b)(6)) the judge essentially gives the plaintiffs the benefit of every doubt and asks whether it’s conceivable that the plaintiffs’ complaints have legal merit.
So, in theory anyway, you shouldn’t read too much into Judge Vinson’s Rule 12 order permitting much of the case to proceed. In practice, though, it’s hard not to conclude that the judge has tipped his hand, as Brad Joondeph writes:
If you are looking for a sense as to where this litigation is headed–at least with respect to the minimum coverage requirement–there is one sentence, on page 61 of Judge Vinson’s opinion, that pretty much captures it. After laying out the competing arguments as to whether ACA 1501(b) is within Congress’s commerce power, he states as follows: “At this stage in the litigation, this is not even a close call.”
More to come.
Orgamom
You might be wondering whether, when I made my recent westward migration, I missed my exit and drove this blog straight off a cliff, leaving it to bob its way out to the great garbage patch in the Pacific Ocean.
I’ve wondered as much myself, though I’ve always had the intention of getting it going again. Certainly I still want to—indeed, I wish I could blog much more, and much better, than before. And I still regularly channel thoughts as if prepping them for future blog posts.
The problem is that my routine has been profoundly reconfigured, and the necessary nexus of time, energy, and atmospherics for blogging has resisted reconstitution. Basically, it boils down to this: I’ve become the primary daytime caretaker for our three-year-old son, and it’s bloody wearing me out.
You see, for the past several years, my wife and I have each had the luxury of working from home most of the time. That used to mean that we were able to substantially share child-rearing responsibilities throughout the day. (Although, while I was in law school—learning to say things like “substantially share”—my wife’s share of responsibilities was considerably more substantial than mine.)
But that changed last month when my better half began a new job: a real, go-to-the-office-all-day, five-days-a-week kind of job.
It used to be that I could (often) spend a few hours in the late evening reading and blogging, because I knew that my wife would get up early with our son. No more. Now it’s all hands on deck from a time earlier than I care to acknowledge as a “waking hour.” 
I have a few hours in the morning—preschool time—in which to get things done. Then it’s role playing, storytelling, reading, more role playing, potty management, role playing, and a virtually continuous food prep-and-cleanup cycle until after 8pm. (Much of this is fun and, of course, rewarding in ways blogging could never be. But the point of this post is to explain the reasons for the ongoing silence of Organon, not to complain about them.)
Theoretically, that still leaves me a few hours to pursue my goals and interests, some portion of which time could include blogging. And it might yet. But there’s an awful lot crowding up that time slot lately, and my mental energy begins to ebb by then.
And did I mention that our son is three?1
Image: Mr. Mom (1983).
- For those not versed in the parental arts, three-ness is a common but extreme state of intermittent psychosis in young children, often fallaciously referred to as “the terrible two’s.” [↩]
About Me
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