Monday, July 02, 2012

Sovereign Domains

In examining the decision in the Obamacare decision (and I will use the pdf page numbering, not that of the Court), it is important to keep in mind what I have gone through in two prior posts about Sovereign Powers and the domains of them.  I utilize the works of Fred Saberhagen's SWORDS Series to illuminate this, and it is worth going over the functions of Swords as each of them is a Sovereign Power and that defines their Domain of power:


Who holds Coinspinner knows good odds

Whichever move he make

But the Sword of Chance, to please the gods

Slips from him like a snake.

The Sword of Justice balances the pans

Of right and wrong, and foul and fair.

Eye for an eye, Doomgiver scans

The fate of all folk everywhere.

Dragonslicer, Dragonslicer, how d'you slay?

Reaching for the heart in behind the scales.

Dragonslicer, Dragonslicer, where do you stay?

In the belly of the giant that my blade impales.

Farslayer howls across the world

For thy heart, for thy heart, who hast wronged me!

Vengeance is his who casts the blade

Yet he will in the end no triumph see.

Whose flesh the Sword of Mercy hurts has drawn no breath;

Whose soul it heals has wandered in the night,

Has paid the summing of all debts in death

Has turned to see returning light.

The Mindsword spun in the dawn's gray light

And men and demons knelt down before.

The Mindsword flashed in the midday bright

Gods joined the dance, and the march to war.

It spun in the twilight dim as well

And gods and men marched off to hell.

I shatter Swords and splinter spears;

None stands to Shieldbreaker.

My point's the fount of orphans' tears

My edge the widowmaker.

The Sword of Stealth is given to

One lonely and despised.

Sightblinder's gifts: his eyes are keen

His nature is disguised.

The Tyrant's Blade no blood hath spilled

But doth the spirit carve

Soulcutter hath no body killed

But many left to starve.

The Sword of Siege struck a hammer's blow

With a crash, and a smash, and a tumbled wall.

Stonecutter laid a castle low

With a groan, and a roar, and a tower's fall.

Long roads the Sword of Fury makes

Hard walls it builds around the soft

The fighter who Townsaver takes

Can bid farewell to home and croft.

Who holds Wayfinder finds good roads

Its master's step is brisk.

The Sword of Wisdom lightens loads

But adds unto their risk.

(end of the song)

Federalism is a means of dividing Sovereign Power into different Domains and then placing those Domains in whole or in part in different parts of government.  The US Constitution tells which branch of government gets which power, and that power is part of the Sovereign Power: it is that Power of a Nation expressed via its State through its government.    All Nations are equal in the Sovereign Power, there is no greater or lesser amongst them as they all express that Power because they are Nations.  Like individuals some Nations are larger than others, some have greater resources than others, and some are blessed by geography while others are accursed by same.  These things, like our own natural liberty in the realm of individuals, do not matter as all Sovereign Powers are equal amongst all Nations.  Indeed the Sovereign Power is bound up with the very individuals that create the Nation as a Nation only exists where there is the basis for it and that basis does not start on high, with the Nation, but on low with marriage.

When looking at the Obamacare decision it is necessary to also remember that the Domains of the Sovereign Power to each branch of government are discrete: they are defined and exist within a defined space and are separated from each other.  In this distribution within a federalist system there are 'checks and balances' that are not only amongst the three branches of federal government but also between the federal government, the State governments and the people who are the source of the power that is being used by these governments.

For Chief Justice Roberts there is a major decision that was made in the following way in the second page of the decision:

The Anti-Injunction Act provides that “no suit for the purpose of restraining the assessment or collection of any tax shall be maintained in any court by any person,” 26 U. S. C. §7421(a), so that those subject to a tax must first pay it and then sue for a refund. The present challenge seeks to restrain the collection of the shared responsibility payment from those who do not comply with the individual mandate. But Congress did not intend the payment to be treated as a “tax” for purposes of the Anti-Injunction Act. The Affordable Care Act describes the payment as a “penalty,” not a “tax.” That label cannot control whether the payment is a tax for purposes of the Constitution, but it does determine the application of the Anti-Injunction Act. The Anti-Injunction Act therefore does not bar this suit. Pp. 11– 15.

There is a difference between paying a tax and paying a penalty: a tax is levied upon a transaction while a penalty can be levied upon an action alone not just a transaction.  Both are attached to doing activities, however, while the 'mandate' is levied against those doing nothing.

These topics cover two separate Domains of Power granted to Congress, which are the taxation power and the commerce regulation power.  Let us take a look at these powers in the Constitution in Article I:

Section. 7.

All Bills for raising Revenue shall originate in the House of Representatives; but the Senate may propose or concur with Amendments as on other Bills.


Section. 8.

The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States;


To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;


To provide for the Punishment of counterfeiting the Securities and current Coin of the United States;


To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.

Section. 9.

The Migration or Importation of such Persons as any of the States now existing shall think proper to admit, shall not be prohibited by the Congress prior to the Year one thousand eight hundred and eight, but a Tax or duty may be imposed on such Importation, not exceeding ten dollars for each Person.


No Capitation, or other direct, Tax shall be laid, unless in Proportion to the Census or enumeration herein before directed to be taken. [Amendment XVI see below]

No Tax or Duty shall be laid on Articles exported from any State.

No Preference shall be given by any Regulation of Commerce or Revenue to the Ports of one State over those of another; nor shall Vessels bound to, or from, one State, be obliged to enter, clear, or pay Duties in another.


Passed by Congress July 2, 1909. Ratified February 3, 1913.

Note: Article I, section 9, of the Constitution was modified by amendment 16.

The Congress shall have power to lay and collect taxes on incomes, from whatever source derived, without apportionment among the several States, and without regard to any census or enumeration.

Congress gets Domains of taxation and regulation of commerce and they are discrete and differentiated in that taxation (and any other revenue bills) must start in the US House of Representatives.  Penalties can be non-monetary (such as prison sentences or hard labor) and those can start in either House of Congress, but anything that requires taking money from the people or the States must start in the US House of Representatives.  Thus the labels are important as those labels that the US Congress assigns for taxation indicate that such bills that garner revenue started in the US House of Representatives, not the Senate.  It may seem a minor quibble, but the Affordable Care Act started in the US Senate, which can neither levy taxes nor have penalties with monetary revenue generation for the federal government.  If the argument is that this is a tax, then the bill should be struck down due to its lack of legitimate originating body.  Within the US Congress the people have determined that it is only the House which can originate such bills (they can be started in the Senate but then must be redone as a House bill, passed in the House, then passed in the Senate as a House bill).

As the US Constitution is a limiting power system (as the power outlays in the main body and Amendments IX and X enforce) there is a limitation in the power of taxation:  "...provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States;"

This is the Common Defense and General Welfare clause and it relates directly to taxes, duties, imposts and excises for generating revenue.  In referring to 'the United States' instead of 'the several States', the taxation power relates to the entirety of the Nation taken as a unit: it is not a power that allows it to be broken down to separate between individual States or amongst the people.  When Chief Justice Roberts refers to "The present challenge seeks to restrain the collection of the shared responsibility payment from those who do not comply with the individual mandate." he is trying to construe that health care insurance is something that is treated for the Nation as a whole and yet there are other ways to garner health care other than through insurance.  Health care is garnered  by and amongst individuals who live in States, and those States each have separate jurisdiction over those things not delegated to the federal government, and it can be done through any means an individual wishes which includes sole reliance on charitable institutions.

As the Common Defense and General Welfare are put together, they are considered a single object defining the taxation power.  The taxation Power Domain starts broad in Section 7, but is refined in Section 8 so that it cannot be used tyrannically.  Because both Common Defense and General Welfare of the United States relate to the Nation as a single whole, any taxation power is administered equally across all States as a single whole.  Taxes are levied upon activities and they are in a clause in Section 8 that deals with activities of trade: taxes, duties, imposts and excises.

Even further there is the forgotten part of the General Welfare clause that is added to Common Defense and General Welfare: " pay the Debts and provide for the common Defence and general Welfare of the United States;"  By using the word 'and' there is the direct connection of these three objects: Debts, Common Defense, General Welfare.  These are treated as a single object due to the 'and' between them: taxes, duties, imposts and excises are to be collected only for these things.  The Debt of the United States is its federal government's debt.  Similarly the running of the Common Defense for the Nation is done by the federal government.  The General Welfare of the Nation is done via external trade and assuring regularity of internal trade amongst the States which is a power granted to government.

Does healthcare fall into any of these categories?

1) It does not fall into the Debt.  It is incurred by individuals in the States, under the regulatory apparatus of the States.  Healthcare does not fall into this object category.

2) It does not fall into the Common Defense.  Healthcare is done as in internal and individual purchase for individual needs for medicine, medical examination, medical care and medical treatment.  If a pandemic requires federal intervention because it acts like an invading enemy, then the US military will deal with it.

3) It does not fall under the General Welfare.  The General Welfare deals with trade that is between Nations or between States and is attached to the regularity of imposts, duties, and excises, which are all specific taxes dealing with trade.  It is their specificity to trade, and the negative power structure of the overall Constitution that limits the federal government to these trade based forms of taxation for trade (otherwise they would just be taxes without restriction within this Domain of Power).  As healthcare is purchased locally and is not an item of inter-State trade (until such time as States wish to regularize this amongst themselves as the several States), then there is no entry point to tax it at the federal level.  If it was an item of inter-State trade it would be limited to duties, imposts and excises, not other forms of taxation.

In each category for the Domain of the Taxation Power granted Congress, health care is not seen as part of its Domain because it is not for the Nation taken as a whole or for the trade amongst States either.  In trying to set up regulatory law on health care, the Congress has created law where it has no Power Domain.  Because there is no Power Domain for Congress to exercise power, there can be no definition of a 'shared responsibility' as that responsibility is, indeed, not shared but falls to individuals and the States.

Yes this is a condemnation of Medicare, Medicaid and any other attempts for the federal government to have anything to do with healthcare.  That includes offering tax write-offs and subsidies via the tax code.  By having no Power Domain in this realm, Congress has not the power to act.  For the Affordable Care Act to be a tax it must have the proper starting point (the US House), the proper subject (the United States as a unitary whole), the proper object (Debt, Common Defense, General Welfare) as taxation is the activity.  This is due to the SVO sentence structure of the English Language and when reading the US Constitution the drafters were mindful of their language and the internal logic of the sentences so that they had proper Subject, Verb, Object agreement.  For the Affordable Care Act to have its implementation be the Verb of taxation it must have the proper Subject and Object to complement it.

It lacks those things as a tax.

In this I have disagreement with Chief Justice Roberts: he cannot parse out a sentence in the US Constitution.

As Chief Justice Roberts didn't reference the Commerce Clause in regarding taxation, it is worth noting that 'the several States' wouldn't cover the Affordable Care Act as there are no 'several States' seeking to implement a system of regularizing health care amongst them.  Even if there were States doing that and the federal government had any role to play, it would be limited via the explicit language in the General Welfare Clause to duties, imposts, and excises.  Thus all Clauses dealing with 'amongst the several States' do not apply to the Affordable Care Act.

Do note, however, that the regulatory part of the of the Commerce Clause would allow for penalties up front, such as trading in contraband goods.  Penalties in the Commerce Clause can go directly to non-monetary ones, while penalties in taxation are only for the non-payment of taxes: taxes are not penalties but a cost put on the activity of trade.  Taxes are the overhead of trade, in other words.  When Congress speaks of penalties, they can be applied immediately to illegal trade, while penalties for taxes are for non-payment of taxes.  This is a distinction with a difference as the penalties show up at different phases of the activity involved and have different types of consequences and severity within the limits of the separate Domains of Power.  Both Domains do cross on activity by type, yes, but they have different functions based on types of activities: it is very hard to tax illegal trade thus it requires a different set of penalties, while payment of taxes is done on legal trade and the non-payment of taxes (the inactivity of paying the tax overhead) has the stated purpose of generating revenue , first, and penalizing non-payment, second.  Thus one can garner penalties for illegal trade (or legal trade done illegally) and the other is for legal trade, done legally but not garnering the given tax overhead for that legal trade.  In the case of legal trade done illegally anyone doing that can face direct penalties for doing same and have tax non-payment liabilities also show up.  A single action can be a breach of two separate Domains of Power for different reasons.

A further restriction on the Tax Power is:  "No Capitation, or other direct, Tax shall be laid, unless in Proportion to the Census or enumeration herein before directed to be taken."  If the Affordable Care Act is a capitation tax that is apportioned by any other means than by Census or income (Amend. XVI) then it is not given to be within the Tax Power Domain.  The Affordable Care Act offers up this 'tax' only to those who do not purchase health insurance: it is not done by Census or income.  Therefore if the basis for the Tax Power Domain is used, then it cannot be done via this Clause, either.

On page 5 of the decision... amazing how much analysis you can pack into a single paragraph on a single page, isn't it?  This section deals with Chief Justice Roberts and Justices Breyer and Kagan:

(a) The Spending Clause grants Congress the power “to pay the Debts and provide for the . . . general Welfare of the United States.” Art. I, §8, cl. 1. Congress may use this power to establish cooperative state-federal Spending Clause programs. The legitimacy of Spending Clause legislation, however, depends on whether a State voluntarily and knowingly accepts the terms of such programs. Pennhurst State School and Hospital v. Halderman, 451 U. S. 1, 17. “[T]he Constitution simply does not give Congress the authority to require the States to regulate.” New York v. United States, 505 U. S. 144, 178. When Congress threatens to terminate other grants as a means of pressuring the States to accept a Spending Clause program, the legislation runs counter to this Nation’s system of federalism. Cf. South Dakota v. Dole, 483 U. S. 203, 211. Pp. 45–51.

Notice how the Justices left paying for the Common Defense out of the Clause?  Yes they are trying to make a point but the Object of the Clause is compound and self-reinforcing giving it added definition, thus refining the scope of the power.  And what is the view for not upholding the Medicaid changes?  Fascinating to read this taking the entire ACA into consideration "The legitimacy of Spending Clause legislation, however, depends on whether a State voluntarily and knowingly accepts the terms of such programs."

The entire ACA is attempting to force a large change in how each State operates.  If the States don't agree to it then, like in Medicaid, its legitimacy is questionable.  Mind you, this is reading the exact same programmatics which is the ACA into changes into Medicaid which is a federal to State system of money transfers with strings attached.  Just like ACA.  The ACA goes further in purporting power to the federal government to set up 'health care exchanges' in States that don't voluntarily agree to set up their own.  By the logic of the 3 Justices involved, that would be outside the bounds of the Constitution.

Do these Justices even bother to think about what they are writing and the context in which they are writing it?  Talk about compartmentalized thinking...

At that point, due to the similarity of structure and Power Domain that ACA has with Medicaid (voluntary agreement structure State-federal), then the obvious way to get a 7-2 decision to strike down the ACA is just not to agree to it at the State level.    That is because the ACA does foist off a lot of structure onto the States without trying to get the States to agree to it, per State.  That is the same structural problem with Medicaid that has just been ruled out of bounds for the federal government to do.  And the moment one State opts out of all of the ACA, then it is the federal government no longer treating the States or the people equally which then should bring down the entire structure completely.

Mind you, if the States started doing that with Medicaid, something similar might be in store for it, as well.  Really, with these three Justices on the five part of 5-4 striking down, and the other 4 wanting a complete striking down, the first case with ACA of a State just refusing it entirely should get you that 7-2 majority for the ACA, which would invalidate the entire structure due to equal application of the law and this not being something set up amongst the several States but put upon the States by the federal government.

So, by page 5 on the upholding side, there is the Chief Justice being unable to parse a sentence, and he is joined by Breyer and Kagan in being unable to see the similarly structural qualities of the ACA to Medicaid, and the result of what would happen if a State does not voluntarily accept the ACA... which is the point of the entire case brought by the States.  Hmmmmm... just how stupid are these people in black robes, anyways?

Hey, I haven't even gotten to the logical inconsistencies around page 38 of the pdf.  You don't have to go that far to find stuff that is most disturbing in this decision.

Since so many are looking at a more general preface on page 12 of the pdf, lets see what the general view of the Court is:

Our permissive reading of these powers is explained in part by a general reticence to invalidate the acts of the Nation’s elected leaders. “Proper respect for a co-ordinate branch of the government” requires that we strike down an Act of Congress only if “the lack of constitutional authority to pass [the] act in question is clearly demonstrated.” United States v. Harris, 106 U. S. 629, 635 (1883).Members of this Court are vested with the authority to interpret the law; we possess neither the expertise nor the prerogative to make policy judgments. Those decisions are entrusted to our Nation’s elected leaders, who can be thrown out of office if the people disagree with them. It is not our job to protect the people from the consequences of their political choices.

May it be said that it is not the job of the Court to save the politically chosen representatives from their own inability to actually craft a law and that it is also not the job of the Court to shift the Power Domain of an act of Congress from one venue to another as the origination of that power is not that of the Court but Congress.  Trying to change those Power Domains to make a law 'work' is not the job of the Court: it is the job of the Court to make sure that the laws crafted within a given designated Power Domain of Congress or the President are Constitutional.  It is not permissive reading that is going on, but changing of Power Domains that are not given nor granted to the Court to do.

Yes those labels do have meaning and designation of which Power Domain the crafted laws is made to fall under.  The Court is no more given nor capable of doing that than is the President: only Congress can do that.  If they didn't do it right, the idea isn't to change the Domain but to send it back to Congress and tell them to do it right.

The Court cannot protect the people from our choices and they cannot shield Congress from its own incapacities and must point them out so that the Nation can get Constitutional laws drafted by the Congress in the proper Houses of Congress, properly ratified that do not seek to impose power in Domains not granted to the federal government.  When labels are changed by the Court to save the Congress from its incapacities neither the people nor the Nation are served and the Court has failed to do its job as it is given to do.  This isn't about policy but simply doing the job one has volunteered to do in the way you have agreed to do it.

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