June 8, 2011

The individual mandate "may violate the constitution of Ayn Rand, but they do not violate the Constitution of the United States."

Said Acting Solicitor General Neal Katyal said today, in oral arguments before the Eleventh Circuit, as reported by Sasha Volokh, who quips "Mr. Herbert Spencer, call your office."

***

The quip refers to the Oliver Wendell Holmes Jr. dissent in Lochner v. New York:
The liberty of the citizen to do as he likes so long as he does not interfere with the liberty of others to do the same, which has been a shibboleth for some well known writers, is interfered with by school laws, by the Post Office, by every state or municipal institution which takes his money for purposes thought desirable, whether he likes it or not. The Fourteenth Amendment does not enact Mr. Herbert Spencer's Social Statics.
Lochner is a much-deprecated case from 1905.

62 comments:

somefeller said...

Lochner is a much-deprecated case from 1905.

Do you think it is a justly much-deprecated case? Genuinely curious. It's been a long time since I've had to think about that case, but while I recall I didn't agree with the result, I didn't think it was quite the abomination it was commonly made out to be. But it's been awhile.

AJ Lynch said...

I am not a lawyer but it seems to me the Solicitor General is flailing wildly.

Quayle said...
This comment has been removed by the author.
Quayle said...

You'd think the left would show an abundance of caution before knocking down the last huge barrier to unconstrained government edicts.

Do they think they will be in the intellectual and political majority forever?

Or is it that we've finally reached la-la land, where up is down, where more liberty means more government rules, and where Nobel peace prize winners conduct four wars simultaneously.

rhhardin said...

Lawyers and judges are smarter than other people, seems to be the point.

The Constitution and not Ayn Rand is the question, and what the court is going to do to it next.

Seven Machos said...

Lochner is a much-deprecated case from 1905.

Speak for yourself. I love Lochner.

Quaestor said...

That was the same Oliver Wendell Holmes who approved of forced sterilization, was it not?

Lochner v. New York, a SCOTUS decision much deprecated by the kind of statists lawyers who gave us ObamaCare and a 14 gigabuck national debt.

Robin said...

I wouldn't think that that kind of smart assed line would be appreciated by appellate court judges, but maybe it worked better in context.

chickenlittle said...

Mandatum is the singular? Who knew!

Rick said...

Ayn Rand's Atlas Shrugged is amazingly prescient. My guess is that if the jerk attorney representing the United States had someone read it to him, he would be rooting for the looters.

Bender said...

That was the same Oliver Wendell Holmes who approved of forced sterilization, was it not?

Three generations of judicial imbeciles are enough.

Simon said...

Deprecated and despised by conservatives, revived in modified form by liberals in the 1960s, and championed by libertarians. There's no quicker way to polarize a federalist society meeting than to ask about Lochner.

Bruce Hayden said...

14 gigabuck national debt.

Actually, its a 14 terabuck national debt. Giga is billions, and Tera is trillions. I suppose that it is better than having a Petabuck (quadrillion dollar) national debt.

Martin L. Shoemaker said...

Bruce Hayden said...

I suppose that it is better than having a Petabuck (quadrillion dollar) national debt.

Don't worry, a debt like that could only happen with runaway inflation that rendered the dollar nearly worthless. That could never happen.

Right?

Somebody please tell me that could never happen...

wv: spereweb, woven by spherical spiders

mccullough said...

Katyal is a former law professor. This line seemed clever to him. Paul Clement, a former solicitor general, argued the case for the other side. Clement was never a law professor. He's also an incredible appellate lawyer. And he would never say something so stupid at oral argument.

Chip S. said...

I love Lochner.

me too. Holmes's celebrated dissent seems like not much more than a sophisticated Jon Stewart joke. People seem to understand that freedom of expression will often mean that they'll be exposed to things they don't like, such as pictures of crucifixes in urine. Why is it not similarly clear that competitors of hard-working bakers just have to accept the consequences of that behavior as well?

I know the answer in terms of realpolitik, I'm just talking about the rhetoric about the case.

Quaestor said...

Actually, its a 14 terabuck national debt.

My bad. I realized my mistake after re-reading my post. I considered deleting, but giga, tera or peta the scale is beyond the comprehension of most people, a human frailty the Democrats have always counted on.

Freeman Hunt said...

The line sounds unprofessional. Should have saved it for the cocktail party.

Pogo said...

Good writers look for their favorite line in a piece, and delete it.

James said...

"“If we’re going to play that game, I think that game can be played here as well, because after all, the minimum coverage provision only kicks in after people have earned a minimum amount of income,” Kaytal said. “So it’s a penalty on earning a certain amount of income and self insuring. It’s not just on self insuring on its own. So I guess one could say, just as the restaurant owner could depart the market in Heart of Atlanta Hotel, someone doesn’t need to earn that much income. I think both are kind of fanciful and I think get at…”"

- Neal Katyal, Acting Solicitor General of the United States

rcocean said...

I love Holmes' opinion:

This case is decided upon an economic theory which a large part of the country does not entertain. If it were a question whether I agreed with that theory, I should desire to study it further and long before making up my mind. But I do not conceive that to be my duty, because I strongly believe that my agreement or disagreement has nothing to do with the right of a majority to embody their opinions in law. It is settled by various decisions of this court that state constitutions and state laws may regulate life in many ways which we, as legislators, might think as injudicious, or, if you like, as tyrannical, as this, and which, equally with this, interfere with the liberty to contract. Sunday laws and usury laws are ancient examples. A more modern one is the prohibition of lotteries.

Sounds like Holmes had more in common with Scalia than Ginsburg.

somefeller said...

Sounds like Holmes had more in common with Scalia than Ginsburg.

Good catch. I remember reading some commentary about Holmes in National Review years ago that was pretty favorable. And my law school torts professor was both a big Holmes fan and a somewhat heterodox right-winger. But in any case, I don't think you can easily line up Holmes on the left-right poles of this era.

mccullough said...

Does New York still prevent bakers from working more than 10 hours a day or 60 hours a week?

somefeller said...

The line sounds unprofessional. Should have saved it for the cocktail party.

I don't know if I'd call it unprofessional, but it does sound like a lame line to use in oral argument. The fine line between stupid and clever is particularly easy to cross in that activity, so it's best to avoid that line.

Beldar said...

Very inside baseball.

(Very challenging WV: eudgiaxe).

Chip S. said...

This case is decided upon an economic theory which a large part of the country does not entertain.

Excellent excerpt, which goes to the heart of my non-lawyer's objection to Holmes. If you view "capitalism" as the implementation of some sort of economic theory, analogous to socialism, then Holmes's statement probably makes sense. But if you view "capitalism" as the natural result of freedom of individual action, then Holmes's view loses much of its appeal, IMO. If the constitution upholds individual liberty, then it will also favor free markets. That's different from saying that the constitution upholds "capitalism" per se.

Beldar said...

As for oral arguments, speaking as a former Fifth Circuit clerk who watched lots, and who's since had a handful of chances to make them, there are exactly two rules about jokes:

If one of the judges makes a joke, it's always funny.

If one of the lawyers makes a joke, it's always wrong.

You're going for earnest scholar of the law who's trying to help the court do its duty and write good precedent (which will also -- Quel miracle! -- help your client). You aren't trying to be Jon Stewart.

Lawyers who do this are servicing their egos and dis-serving their clients, IMHO.

David said...

Kind of glib. Judges don't usually like glib.

Beldar said...

To be clear(er), I'm not criticizing Prof. Volokh's tweet. Blogs are a fine place for legal humor.

I'm criticizing Natyal for the remark about Ayn Rand, which Natyal intended as a quip too. Oral argument isn't the place for that, even in a run-of-the-mill case.

Beldar said...

tweet, blog post, whatever

windbag said...

I don't know if I'd call it unprofessional, but it does sound like a lame line to use in oral argument.

Everything about this administration screams "Amateur!" They have no measure of respect for anyone or anybody.

Lem said...

I am not a lawyer

I could use a cafe about now.

Fen said...

Good points Beldar. Thanks.

Fen said...

Crony Socialism.

I think the lawyer should state for the record that he doesn't have a waiver for Obamacare.

Really tired of Obamacare advocates lobbying to force it on the rest of us and then opting out of it themselves.

Really tired of the MSM not covering that.

Seven Machos said...

I've said this before in these threads, a lot, but I feel compelled to say it again:

A great professor of mine did not like Oliver Wendell Holmes much. Holmes's ideas were mush, he said. What made Holmes so compelling, he said, was that Holmes was a great writer. He was able to write with clarity and force and wit.

Therefore, the moral is that you can have your ideas -- even a bunch of bad ideas -- accepted if you are a good writer. So, be a good writer.

Michael said...

For those interested in the Lochner Era, you should check out David Bernstein's new book, Rehabilitating Lochner. It is a really good revisionist take on the era.

Bernstein came and guest lectured in a class at UW Law this past semester. He was really good (as was the class, which focused on Lochner, and substantive due process in the 20th century).

victoria said...

I love the comment!!!


Right on, brother!!!


Vicki from Pasadena

Seven Machos said...

I am taking wagers that Vicki from Pasadena has actually read Lochner. What should the odds be? 100:1? 1,00,000,000,000,000,000:1?

Tyrone Slothrop said...

Chip S. said...

...they'll be exposed to things they don't like, such as pictures of crucifixes in urine.


I don't recall anyone seriously advocating for the censorship of Piss Christ. I do recall many objecting with good reason to the expenditure of taxpayer funds via the National Endowment for the Arts.

holdfast said...

I had him mixed up with Neel Kashkari. My bad.

Alex said...

I love the comment!!!


Right on, brother!!!


Right on Weiner!

Don't Tread 2012 said...

Sorry. Just because we have 'uninsured' people in this country, does not give the gov't license to essentially charge an add'l premium to those that choose to insure.

We know there will always be those that NEVER pay for what they get. They are here, now. They are called 'illegals', slackers, recipients, wards of the state, etc etc.

Even under this looming rubric we know as 'ObamaKare', we already have scores of groups that have been granted waivers. Providers are merely traction for the behemoth mechanism that is getting underway. If this thing is NOT thrown out as an overreach of congress, its lights out baby, they can tell us to do ANYTHING.

And then Canada just might look pretty attractive, at least it will be the best seat in town to watch the meltdown of a once-great country. Maybe Brezhnev was right.

Don't Tread 2012 said...

Beldar makes the point.

The lawyer is duly noted as providing an opinion and a quip in one line. Probably did not help the case they are attempting to make.

Isn't liberalism all about ego? Feel-good-ism seems to be food for the 'self'...and selfishness appears to be a recurring element in a lot of what liberals do.

Pogo said...

Liberalism is a religion.

Government confiscation is their sign of the cross.

Ayn Rand is their devil.

The lawyer can't believe he has to explain this to anybody. It's obvious ...to all but the damned.

Harsh Pencil said...

One assertion of Katyal's was that health care is special because everyone will eventually be a customer. But this can't be true, and no one ever seems to call him on it. Maybe not high in percentage terms, but I'm sure there are lots of adults in this country who will go through the rest of their entire lives without EVER seeing a doctor, nurse, or hospital. We don't tend to know them, but they are there. Amish, Christian Scientists, backwoodsmen, whatever. They will simply get old and die. It happens. Accessing formal medicine is a choice. It's a choice most of us make, but it isn't 100%.

Chip S. said...

Tyrone, I'm not sure why you think this

People seem to understand that freedom of expression will often mean that they'll be exposed to things they don't like

is refuted by this

I don't recall anyone seriously advocating for the censorship of Piss Christ.

Saying that people understand that a commitment to free speech will involve tolerating things they don't like is pretty much the opposite of claiming that they advocate censorship.

Calypso Facto said...

You know how snotty, condescending, and ignorant it sounds when Jeremy says "Duh!"? I bet the judges of the 11th Circuit don't like it either...

Fred4Pres said...

Let's just hope the majority of the court disagrees with the Solicitor General.

jerryofva said...

I propose the following mandate: The Federal Government should require all citizens between the ages of 18 and 45 to purchase at their own expense one M-4 Carbine and one Beretta 92FS (Civilian designation for the M-9 sidearm)and maintain their proficiency at military standards. Failure to meet annual qualification will result in a fine. This mandate can found in the Constitution (Article 1 section 8, the Militia clause of the Second Amendment and the implementing Militia Act of 1792 as amended)

Roy Lofquist said...

I remember an old saying from the days when I hung around with lawyers.

When the facts are on your side argue the facts. When the law is on your side argue the law. When neither plead equity.

To my ear, the arguments at both the district and appellate level by the government seem somewhat disjointed.

virgil xenophon said...

POGO@6:52am/

I would have preferred that you had used "leftism" viz "liberalism" so as to avoid historical/ontological confusion, but otherwise one of the greatest succinct summations of the leftist Weltanshruung EVER!

virgil xenophon said...

Roy Lofquist/

That saying supposedly originated with "Racehorse Harry" Haines, a legendary Texas defense attny--only his third option was "And when neither are on your side, pound the table!"

D.D. Driver said...

"When the facts are on your side argue the facts. When the law is on your side argue the law. When neither plead equity."

I learned it as:

If you have the facts, pound the facts. If you have the law, pound the law. If you have neither, pound the podium.

Marshal said...

"Harsh Pencil said... One assertion of Katyal's was that health care is special because everyone will eventually be a customer."

This point is accurate, but consider also the reverse. Isn't virtually everyone a participant in the food and shelter markets? Does our government control all payments for food and shelter?

Brennan said...

This point is accurate, but consider also the reverse.

No it isn't. There is nothing to suggest that EVERYONE will eventually become a health care customer. It may be a small number, but there are Americans that will never pursue health care of any kind. Not even the use of an emergency room where by law they cannot be refused service.

I do like your questions about markets that everyone will EVENTUALLY participate in. But even that is flawed. Katyal presumes to speak for all Americans. He doesn't. He cannot.

Marshal said...

"No it isn't. There is nothing to suggest that EVERYONE will eventually become a health care customer."

Harsh Pencil's point is correct.

Roy Lofquist said...

@Virgil & D.D.,

Thanks. I was relying on 30 year old memories.

Roy

Methadras said...

The government is mandating me to by something I don't want, but will be penalized for it. The auto insurance comparative is wrong, because one deals with a voluntary issue (driving) vs. an involuntary issue like my health (accidents/diseases/etc.).

mariner said...

Quayle,
Do they think they will be in the intellectual and political majority forever?

Why yes, they do.

And since they OWN the schools, Hollywood, the Federal bureaucracies, and the judiciary they're probably right.

Robin said...

Nothing makes me feel as smart as having Beldar agree with me.

JPeden said...

"The individual mandate "may violate the constitution of Ayn Rand, but they do not violate the Constitution of the United States.""

Wrong: "the individual mandate" is linguistically equivalent to "not an individual mandate" in the same way that the act of "buying something" is alleged by the Acting Solicitor General to be linguistically the same as the act of "not buying something". Whereas the Constitution [also "of Ayn Rand"] is not an exercise which strives to create gibberish such that "might makes right".

Jared Rhoads said...

To hear the audio of Neal Katyal's comment about "Ayn Rand's constitution," go to 42:00 in the Florida v HHS file on the merits. Here:

http://lucidicus.org/references.php