Thursday, April 5, 2012

"If the government can do this, what, what else can it not do?"

It has come to my attention that the phrasing I used in the previous post was not exact.  What Scalia actually asked wasn't, "If the government can do this, what can't it do?" but rather, "If the government can do this, what, what else can it not do?"

I assume the rephrasing was because "If the government can do this, what, what else can it not do?" is an ugly sentence.  Still, it is worth noting the actual sentence both for full accuracy and because it makes more explicit the problems with the question.  The "else", for example, makes it clear that he's not just talking about things that might be similar to the mandate in question, but rather about things that are unlike it.  This becomes even more clear when the quote is placed in context:
[...] the Federal Government is not supposed to be a government that has all powers; that it's supposed to be a government of limited powers. And that's what all this questioning has been about. What -- what is left? If the government can do this, what, what else can it not do?
Scalia is suggesting that if the mandate is allowed to stand, if the government can require people who are guaranteed emergency healthcare to pay for health insurance, the government will have unlimited powers.  He literally asks, "What is left?"  The things that I brought up in my previous post are left, as are too many more to list.  Anyone with even a passing familiarity with US law knows that there's a seemingly endless amount of stuff left.  Scalia either doesn't know that, or wants us to believe that he doesn't know that, because he's suggesting that either nothing will be left or he doesn't know what will be left.

He is suggesting that, if the government can require people who are guaranteed emergency healthcare to pay for health insurance, the government will be unlimited in power.  He's suggesting that if the government can do this, there won't be stuff left, or at least not a lot.  He's suggesting that he hasn't read the Constitution, or Bill of Rights, or subsequent amendments, or any law or ruling that has limited the power or scope of government in the more than two centuries since this government began.  Nor has he read any summaries or highlights of these things.

It's up to each of us to decide whether we believe that Scalia is as ignorant as he would have us believe or if he is just putting on a show, but it is clear that those are the only options.  Someone who knows even a little about US law and is acting in good faith knows that questions like, "What is left?" and, "If the government can do this, what, what else can it not do?" are absurd.  It's not that they don't have answers, it's that the answers are so vast that asking the question is silly.

For the mandate to make government unlimited, as Scalia implies it might, it would have to singlehandedly overturn all of the rest of US law.  If the government can do this, what, what else can it not do?  Well it can't hold the presidential election tomorrow.  Scalia's question, especially when placed in context, makes it clear that he's acting like he doesn't know that.

It has been argued that the the reason the lawyer for the government did a bad job was that he was blindsided, he simply didn't expect the Supreme Court to act with such ignorance and wasn't prepared for it.  His position was like someone who came expecting to do in depth literary analysis of someone like Joyce and was then hit by volleys of questions like, "What does the word 'the' mean?"  The argument goes that he knew the answers, he was just caught so far off guard that he became inarticulate.

I have no idea if that is accurate, but I have little trouble believing that he was unprepared for that level of unfamiliarity with the basics.


There are actually two simple answers to Scalia's question.  Ones that wouldn't take forever, but they're also so obvious as to be almost pointless to say.  They're tautologies, and bring as much meaning as saying, "Blue is blue."  One is, "It cannot do anything that is unconstitutional or otherwise illegal," the other is, "Given that the government has the power to amend the constitution, with a large enough majority the government could potentially do anything at all*."  Neither of those answers has anything to do with the healthcare law.

What is left is everything that was there before.  The precedent set by the law only matters within very limited defined margins yet Scalia is acting like it changes everything.  He's literally treating it as if it could potentially give the government unlimited power.

This plays into certain demagogic arguments** but it doesn't make sense for someone whose job is to know the Constitution to ask.  We've got such a large body of what the government can't do which has nothing to do with something like the individual mandate.  The only way this possibly makes sense is from a supervillian mindset: Today Gotham City, tomorrow the world!  Today I make everyone guaranteed emergency healthcare pay for health insurance, tomorrow I have unlimited power to do whatever the fuck I want!

I wanted to finish this off with an in depth analogy, but I can't find one absurd enough.  I guess I'll stick with the supervillian one.  It doesn't work that way.  Even if you assume that the mandate is unconstitutional and thus is a blow against freedom and everything good, even if it is equivalent to taking over Gotham, tomorrow is not the world.  Superman is still out there.  The Flash is still out there.  Wonder Woman is still out there.  Aquaman can still attack you using the deep horrors beyond imagination that lie waiting in the depths of the sea.  So on, so forth.

The fall of Gotham should absolutely be opposed, but if someone is telling you that the fall of Gotham would mean the fall of the world you can tell right away that they're completely irrational, have no idea what they're talking about, and should not be trusted with duties like making sure Gotham won't fall.  Someone competent should take their place.

At the very worst it's something like, "Today Gotham, tomorrow Metropolis, the day after ... uh ... Central City, and I could go on but that would require me to look up more comic book cities."

The reason to oppose the fall of Gotham is because Gotham shouldn't fall, not because of a completely unrealistic fear that everything else will fall along with it.  If Scalia has good reasons to oppose the healthcare mandate he should ask about those rather than making up an impossible scenario in which not striking it down would mean that the government has "all powers".


* Which is why it is vitally important that we not elect evil assholes.  This point cannot be stressed enough.

** Fail to strike down the healthcare law today and tomorrow we'll all be required by law to wear t-shirts that say "It's a BFD" and swear fealty to Daily Kos.  The Church of the Flying Spaghetti Monster will be the official religion and the government will take all guns away, free speech will a thing of the past, the next president will be a three year old, ex post facto laws will be passed and America will have a nobility.

For if this passes, what -- what will be left?

No comments:

Post a Comment