Today is probably a funny blogging day

If the Supreme Court strikes down ACA in part or as a whole, and you did not like the law in the first place, do not assume you should be happy.  It is far from obvious that we will end up with something better.  I do hope that today (or later this week) is not simply a big exchange of anger and recrimination.  No matter what happens, America still needs health care reform and this will require cooperation across the ideological spectrum.

By the way, didn’t it just come out in The Washington Post that the United States helped attack Iran with Flame, Stuxnet and related programs?  If they did this to us, wouldn’t we consider it an act of war?  Didn’t we just take a major step toward militarizing the internet?  Doesn’t it seem plausible to you that the cyber-assault is not yet over and thus we face immediate questions looking forward?  Won’t somebody fairly soon try to do it to us?  Won’t it encourage substitution into more dangerous biological weapons?

I do understand that these are fairly superficial questions and that I do not have the expertise to write a detailed and insightful blog post on these topics.  Still, it seems odd not to mention them at all.  While I read in limited circles, I do not see many writers devoting much attention to the matter.  Shouldn’t this have set off a large-scale national debate?


Discussion on cyber spying (on US corporates) by state sponsored actors has been around for some time, so I don't these revelations should be a surprise. You'll recall hearing about hacking at suppliers to the US military as well as the biggest industrials in the US over the last few years. It would have been more of a surprise if the US was doing nothing. Hasn't the US military already issued guidlines about how it would respond to a cyber attack (with a physical response)?

We just crapped on any moral high ground, as we have done with the drone murderings.

No, it's not surprising. Just get ready for the web version of the airport TNA pat-down.

No, man, we totally keep the moral high ground because it's a Democrat doing all this stuff. Obama is awesome.

I feel you. But I suspect in the eyes of the rest of the world, The Nobel Peace Prize winner isn't doing us any favors.

He won the Nobel Peace Prize for his stand while still a US Senator on getting out of Iraq. He made good on that.

Are you under the impression being U.S. President is as complicated as being a follower of Mohandas Karamchand Gandhi? He would have been literally destroyed by the corporate men behind the curtain if he's been Gandhi-like. Think JFK...

What stand did Senator Obama take against the Iraq war? He voted in favor of Iraq appropriations, so that's not it.

Are you on the committee?

It is pretty obvious that Obama got the prize because he was not GW Bush. That is my "politics always gets worse" theory in action. It may be the best example I could ever hope to find.
Thank you.

He won the Nobel Peace Prize for his stand while still a US Senator on getting out of Iraq. He made good on that.

Wait, you're saying they should have given the prize to Bush?

The official reason give for the prize is his work toward nuclear disarmament. But I don't take that seriously or the prize itself. It hasn't really been about peace for a very long time.

5,000+ military deaths, a trillion dollars later, and tens of thousand civilians dead, hundreds of thousands displaced in Iraq since 2003.

But apparently THIS is where we crap our moral high ground.

On THAT issue.

Yes, yes, and yes, and I've been talking about all those things to anyone who'd listen since as long as I've been talking to people about politics.

Not that this means anything, but you can essentially thank GW Bush for why I'm a vocal and active libertarian, or precisely the nonsense that came out of the Bush-Gore debates. I remember the moment I was sitting on the couch and thought "neither of those sides make any sense." The Tea Party is late to my party but I welcome all comers. All this means is that GW never spoke for me no matter how much people want how bad he was to justify re-electing Obama.

Just because I spend time on the FDA taking on Tobacco and busily causing generic drug shortages while they are officiously approving 50,000 deaths from Vioxx shouldn't mean that I don't spend plenty of time on other things.

I still believe that the country's turning point was when the 2000 contest was Bush-Gore instead of McCain-Bradley.

How old were you when you started talking to people about politics?

Based on your last syntax-challenged sentence "All this means is that GW never spoke for me no matter how much people want how bad he was to justify re-electing Obama."...

Does this mean you're just not going to vote?

Because the alternatives right now seem to be a pathological liar with 10 times the number of "Pants-on-Fire" lies than those uttered by Obama -- and a racist who babbles about his core beliefs as unfiltered and unfettered as a person deep in the throes of Alzheimers' would do.

What is wrong with the syntax of that sentence? It is clearly confusing since I must restate the entire point.

How bad one competitor is doesn't mean the other guy is better, just that he is the likely winner.

Flame took advantage of a weakness in the automatic update mechanism for Windows. Anybody that runs Windows in mission-critical infrastructure deserves whatever happens to them.

I'm reminded of the so-called phone hacking scandal in Britain. How did Rupert Murdoch's newspapers get into the voicemail of celebrities? The "victims" hadn't changed the default password on their voicemail accounts. That's basically the same thing as not having a password.

Isn't setting up thousands of voicemail accounts with default passwords equally stupid on part of the telephone companies? It ought to be impossible to start using voicemail before setting a password.

That is the smartest thing we will hear today, if not this whole week.

It will be an interesting commerce clause day.

By the way, guess which sitting Supreme Court Justice argued argued on behalf of farm groups to uphold under the commerce clause an automatic check off (a "mandate") for farmers to contribute to an advertising fund promoting their agricultural products.

I have no idea, but I'm curious, Bill, why do you think anyone here would be surprised?

I could destroy the Check-Off concept economically and legally in 30 seconds, and I'm neither an economics nor legal expert. Wouldn't matter, because I'm neither an economics nor legal expert.

"We're SupCo - doing it wrong for two centuries and counting."

One more hint: the argument was that if some farmers were exempt from the check off, they would be "free riders" of the program.

One other hint: some of the promotion programs were previously funded by the government. The government mandated the check off to replace a federal program.

“free riders” of the program

It's ironic that you don't have to be a SupCo judge to come up with such an asinine argument, but apparently you must be not a SupCo judge to understand that it is asinine.

"One other hint: some of the promotion programs were previously funded by the government. The government mandated the check off to replace a federal program."

That one needs no further comment. Taxpayer funded increased beef consumption (this is a public good?) and prices (this is a public good?) is probably marginally stupider than industry groups kidnapping independent producers and then calling them free-riders. I'd put this past none of the clowns, so you haven't narrowed it down for me. You can usually predict decisions as a question of which side is wrong about which half of economics or civil liberties, but on some superficially complicated (for lawyers) issues they manage to both be completely wrong.

I don't know who, but would I be right to guess his tune changed when it came to Knox v. SEIU?

I have no idea, Bill, but I will guess on one thing- he/she wasn't acting as a judge, but as a lawyer for a client. Since the key decision was in 2001, I would guess the judge is either Alito or Roberts.

How did I do?

One more fact point and hint: The program was instituted under a federal market order--in other words, farmers by majority vote voted for or against the checkoff program. If more than 50% voted for it, the opponents would still have to contribute to the program.

The attorney was hired because he was a prominent conservative and knew the constitutional arguments.

I actually know because he asked, it has to be Scalia. Scalia is a douche, except he's a literalist douche.

There is a ratchet effect, and Bill either won't care, or won't realize, between the helter-skelter members and the literalist members that is biased in one direction.

And contra Bill's statement above, it appears that the ruling was that the Beef Checkoff program was a government program.

The rudderless crowd who dissented claimed that it is "government speech" but I'd be willing to bet they were siding against the beef industry rather than for any coherent principle.

Beef was one of the many programs that were under attack for both free speech and commerce clause aspects. There were cases involving fruit, for example (hint.)

Guess I was right. I am truly shocked that a lawyer would argue a client's case.

Ah, he's talking about the lawyer in the case. Scalia wrote the opinion.

Tarring Scalia with inconsistency would at least mean something. Roberts, Alito, Sotomayor, and Kagan are simply data points for my "politics always gets worse" theory.

No, we don't feel good when the SupCo blind squirrels happen by sheer luck to find our nuts.

Here is an interesting comment on the Beef Checkoff fiasco.

While it was yet unclear whether the May 23 Supreme Court ruling will be used as a legal precedent in future similar cases, one clear result, according to Iowa State University agricultural education and studies associate professor and attorney, Roger McEowen, will be future muddling of the law.

"It is confusing to me, as someone who looks at this stuff everyday, to try and sort out the five various opinions in this case: The majority, and the concurring dissents. It cannot help but leave someone in a state of dismay about our judicial process, based on what our court has done today," McEowen said May 23. "For, if it weren't for two justices who simply decided to go along with the majority for reasons other than their feeling that the majority was correct, that this case did involve government speech, that the beef checkoff was government speech, you would have had a 5-4 opinion the other direction, and the program would have been tossed out.

"But, you had two justices, Ginsberg and Breyer, that while not agreeing it was government speech, decided to go along with the other four justices to simply get the result they felt should have happened five or six years ago in a prior case. But, that does not bode well for the judicial process in this country," he said.

Another hint: he was the head of the firm's appelate practice and he and his firm worked on the commerce clause and free speach issues relating to the mandatory checkoff system for many different agricultural products.

I will now go out on a limb and predict he will find the law constitutional under the commerce clause.

As he once said regarding the commerce clause: ""Starting with McCulloch v. Maryland, Chief Justice John Marshall gave a very broad and expansive reading to the powers of the Federal Government and explained generally that if the ends be legitimate, then any means chosen to achieve them are within the power of the Federal Government, and cases interpreting that, throughout the years, have come down. Certainly, by the time Lopez was decided, many of us had learned in law school that it was just sort of a formality to say that interstate commerce was affected and that cases weren't going to be thrown out that way. Lopez certainly breathed new life into the Commerce Clause. "I think it remains to be seen, in subsequent decisions, how rigorous a showing, and in many cases, it is just a showing. It's not a question of an abstract fact, does this affect interstate commerce or not, but has this body, the Congress, demonstrated the impact on interstate commerce that drove them to legislate? That's a very important factor. It wasn't present in Lopez at all. I think the members of Congress had heard the same thing I had heard in law school, that this is unimportant — and they hadn't gone through the process of establishing a record in that case."[17]

And, as he said regarding review of Congressional enactments:

'The Supreme Court has, throughout its history, on many occasions described the deference that is due to legislative judgments. Justice Holmes described assessing the constitutionality of an act of Congress as the gravest duty that the Supreme Court is called upon to perform. ... It's a principle that is easily stated and needs to be observed in practice, as well as in theory. "Now, the Court, of course, has the obligation, and has been recognized since Marbury v. Madison, to assess the constitutionality of acts of Congress, and when those acts are challenged, it is the obligation of the Court to say what the law is. The determination of when deference to legislative policy judgments goes too far and becomes abdication of the judicial responsibility, and when scrutiny of those judgments goes too far on the part of the judges and becomes what I think is properly called judicial activism, that is certainly the central dilemma of having an unelected, as you describe it correctly, undemocratic judiciary in a democratic republic."[

I think people have focused too much on the television drama of Supreme Court hearings, not recognizing that when Justices ask hard questions it doesn't mean they also make big moves. And, while I'm out there predicting, I think that the Arizona case and the ACA case will make enough noise in the same week to drown out the backlash effects of either opinion, which is a reason to bunch them up at once. You can only have so much airtime before there is another commercial.

The answer is:

Supreme Court Justice John Roberts and Hogan and Hartson hired by several farm groups to defend various check off mandates.

As a lawyer, it seems you should understand that has no relevance whatsoever to how he will vote. Are you suggesting that if he thought it was unconstitutional he would have turned down the work?

Depends on whether he gives advice on whether it is constitutional, doesn't it.

After milking that out for five comments, you say that he was the lawyer on the case and not the judge? What a waste. Seriously. Find a new talking point.

Oh, if someone says that mandates are constitutional, you should listen to him, no?
Would it be any different if he gave a speech but didn't write an opinion.

Obligatory Intrade contract:

Shorting it! Except for Scalia's "the law is whatever I want it to be" attitude, none of the other justices have a legal basis to strike down the law.

Have they shown themselves to particularly care about having legal basis to vote how they vote? I mean in recent years?

"in recent years"? playing the partisan hack is not healthy for one's credibility.

Hoho! Good one! Maybe I just want to blend in here.

@msgkings. Wah, they started it. This is your answer? Let me save you some time. Whenever you get the urge to comment here just type:

[insert knee-jerk liberal platitude here].

Your impact will be identical.

Here's a piece on how Stuxnet changed the Internet:

"Won’t somebody fairly soon try to do it to us?"

As soon as they possibly can, whether we take (took) the moral high ground or not. In fact, they've been trying. The targets of these attacks don't require provocation, merely reasonable expectations of success. I'm all for denying them such expectations.

Haven't non-state criminal groups been doing this for years, and found that the only profitable niche is surreptitiously exploiting the computing power and network access of the compromised machines? The sabotage-and-extortion racket features a combination of high transaction costs and being overt enough that other potential victims shore up their defenses quickly. You have to be a government (not subject to the usual barriers like profitability and prosecution) to find it worth your while to do such things.

Military sites and Contractors' sites have been under attack for a number of years by Chinese groups that have only the barest claim to non-State actor status.
And isn't Iran in a state of war with us anyway? Since like, 1979 or so?

It's not obvious it's only non-state groups. In fact, in the Stuxnet/Flame case, we presumably only know it was the US government (instead of "probably Israel, but nobody's sure") because it's an election year and Obama has special needs in this area. He needs to show some toughness. Beyond that explanation for the leaks, though, I suspect Obama sincerely wants to delay attacking Iran with real bombs. Inevitably the US or Israel will do so barring a real surprise in diplomacy.

Tyler's post suggests he hasn't thought about this much. When you're a rich high-tech nation, you're better off directing future conflict in the direction of expensive technological things. It's where you have a comparative advantage. I suspect most people found the Stuxnet revelations reassuring as they were worried the US was dropping the ball on this sort of thing.

We are a hell of a lot more vulnerable, overall, to disruption of our economy via computer attacks than Iran is or will be anytime soon.

FWIW, I don't think that's true. Our infrastructure is large and diverse, and theirs isn't. We can afford hundreds of Stuxnet teams, and they can't.

Striking down the ACA is a matter of justice, and as such, more important than immediate, short-run consequences. Sometimes it costs a lot of money to catch a criminal on the run, but if justice is important to society at all, society will value the expense. I can think of hundreds of other analogies along these lines. I have no idea why economists tend to be such rabidly consequentialist thinkers, but I think everyone should go back and read The Republic a few times to remind themselves of the painfully detailed nuances associated with questions of justice.

The end game is single payer. Striking down the ACA just changes the path from here to there a bit and may accelerate the timing.

Just because America "needs" healthcare reform, doesn't mean it will get it.
It needed it for decades, but the lack of a clear long-term majority for either party will prevent it.

"While I read in limited circles, I do not see many writers devoting much attention to the matter." I predicted retaliation. Clearly you don't hang on my every word: how remiss.

It's interesting that Tyler assumes we should only look at utilitarian consequences (whether we get 'something better') when figuring out whether to be happy about the verdict. The actual Constitutional issue, apparently, is unimportant.

Personally I am happy when the Constitution is interpreted correctly and not when it's not.

I have no say in the matter.

I'm just happy when these guys get their comeuppance.

It's worth the price of admission.

The Constitution is a means to an end, not an end unto itself.

And partly it is a means to it's own end. Limited government is a thing. Process is a thing. Legality is a thing.

Personally, I think a SupCo dismissal should be accompanied with (unenforced) criminal charges. But I'm nuts.

You are literally insane.

I'd ask why, but it wouldn't matter.

There shouldn't be any other incentives tied to violating the constitution than "sorry, try again!"???

It's pretty simple. Is passing an unconstitutional law breaking the law, or not? Such a provision would seem Constitutional.

Constitution, Article 6 - Debts, Supremacy, Oaths
The Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution;

I said "unenforced," kind of like a censure, which makes me a moderate on the issue. Do you think I'm insane because I don't want them shot?

Your mortgage contract is a means to an end, not an end in itself.

Therefore what? The bank can unilaterally decide to triple your interest regardless of what's written in the contract? No?

Then perhaps there's some 'ends' based reason to think that what's written in the contract matters, and it's good when it's adhered to and bad when it's not.

I agree with you, but what you're saying is unfortunately very passè. Our chattering classes would be utterly scandalized to think that a program with good results could ever be prevented from being by an old piece of paper. I mean, the Constitution is designed to allow for good governance and not bad, and what we want to do is so very good, so what's the beef?

You are right of course. To my intellectual betters, the Constitution is a black box into which they can pour their preferences. I don't understand why such people bother to actually read the thing or act as if it contains meaningful text. If something's Good, it must be Constitutional, QED.

And by "correctly" you of course mean "in a manner I agree with". Even more likely, you mean "in a manner that leads to political outcomes toward which I am predisposed, regardless of what the Constitution actually says or intends."

I do love how everyone knows exactly 1) what the Constitution actually says, 2) what those words mean or were intended to mean, and 3) how they should be applied to complex modern life in a large, diverse country with problems unknown to the founding fathers.

No, by 'correctly' I mean correctly, according to logic. I can explain, and have numerous times, why one outcome would be correct and the other not. Perhaps you disagree or would not be persuaded - that happens - you would be simply wrong. *shrug* Perhaps you, more than that, actually have a counterargument to my assertion - that would be interesting but I'm not seeing it here.

I too love how everyone knows exactly what the Constitution says. It is, after all, a public document written in our primary national language, highly accessible, not very long, and freely available to anyone to read. Yes, it is absolutely true that everyone knows exactly what it says. (Oh were you being sarcastic and suggesting otherwise?)

Of course, you have a point regarding words changing meaning, so if you have a different interpretation of what its words 'mean or were intended to mean' that in your view affects what the correct outcome of this case would be in this oh so 'complex modern life' of ours, you are welcome to advance it as I would read it with interest. Till then,

It's amazing that you know the exact correct interpretation of the Constitution in every case, yet we have so many divided opinions in the history of the Supreme Court. One would think that SC justices would have a pretty good idea of how to correctly interpret the constitution — or at least a better idea than most of us — but it appears they do not, since they so often disagree with each other. Maybe instead of coming to their own conclusions, they should just ask you.

First, I didn't say in 'every case'. I was speaking of this case. For the vast majority of SC cases, I have no opinion as I am not following them.

In any event, yes, I do believe I know the correct reasoning from the Constitution to an outcome in this case. Could I be wrong and am I fallible (if that's your point in citing SC non-unanimity)? Of course! But (evidently) I don't think I am, else I would change my view accordingly.

I would also, incidentally, change my view in the face of a convincing and persuasive argument that I'm wrong. That's all it would take. As it happens though, I have never seen one (and you are not attempting one). So here we are.


Note that I'm not agreeing or disagreeing with any single interpretation of any single case. I'm not advancing a view as to what the words in the Constitution mean, or how they have changed or not changed over time. My whole point is that there is serious and widespread disagreement about how best to interpret the Constitution, and that it's extraordinarily disingenuous for anyone to claim that they know the correct constitutional ruling of every single case that comes before the Supreme Court.

Whether I am speaking with my conservative friends, my libertarian friends, or my liberal friends, they all seem to know with great certainty whether any given issue passes constitutional muster or not. And yet they all disagree with each other! What's more, they can't even tell you what's in the Constitution if you ask them. They know a few key words, a phrase or two, and that's about it. Yes, the Constitution is short, it's accessible to everyone, it's fairly easy to read — and almost no one knows what it says.

"Note that I’m not agreeing or disagreeing with any single interpretation of any single case. I’m not advancing a view as to what the words in the Constitution mean"

Noted. Meanwhile, I am (for this case): I assert that according to the words in the Constitution, per their relevant operative meaning, the ACA is unconstitutional thus the correct outcome would be to strike it down.

If it's any consolation, I don't expect that to happen.

"t’s extraordinarily disingenuous for anyone to claim that they know the correct constitutional ruling of every single case "

Still don't know how this 'every single case' thing entered the discussion.

"Whether I am speaking with my conservative friends, my libertarian friends, or my liberal friends, they all seem to know with great certainty whether any given issue passes constitutional muster or not."

Understood. What has to happen from there is that you hash it out using *argument*, to try to *persuade*, for example using *logic*, and referring to the *Constitution*.

I claim that if you do this an anti-ACA verdict readily falls out. I also note that - not coincidentally - this isn't (often) what ACA supporters attempt, preferring instead to throw up smokescreens and change the subject, to e.g. the utilitarian result of this or that outcome (as Tyler speaks of above), or shifting to some sort of meta epistemology discussion over whether we can even know the correct interpretation of the Constitution in these 'complex' modern times etc (as you have done).

Marbury vs. Madison was very arguably incorrect. Nowhere in the Constitution is the Supreme Court given the right to strike down a law.

If they did this to us, wouldn’t we consider it an act of war?
Didn’t we just take a major step toward militarizing the internet?
Doesn’t it seem plausible to you that the cyber-assault is not yet over and thus we face immediate questions looking forward?
Won’t somebody fairly soon try to do it to us?
Won’t it encourage substitution into more dangerous biological weapons?
No (which is not to say that they won't be either developed or used.)

Any benefit from Stuxnet is temporary, and the costs potentially very high.
Something along the lines of the Test Ban Treaty would be sensible policy. The US is fond of labeling states as rogue. Right now, it is in danger of being numbered among them.

As I get older I am more convinced every day the Ron Paul has been right about so many things...

Too bad it took so long :-(

Yeah. I used to laugh at libertarians all the time. Now, not so much.

Good point on the cyber issues Tyler. I think, as a whole, the internet has fundamentally changed a lot about humanity which the media and even blogoshere is not sufficiently exploring. I would suggest adding some tech based blogs to your repertoire.

The sad reality is that you can't have health care reform before you have genuine campaign finance reform and institute other changes to limit the power of the extremely large firms in the health care and finance industries. Write about that today.

For those who are truly interested in this topic, Gary Warner* has a blog:

*Director of Research in Computer Forensics, UAB Center for Information Assurance and Joint Forensics Research

Cyber-attacks against the U.S. have already been done. And, it was not considered an act of war, or at least, we did not declare war because of cyber-attacks on us. I seem to recall something about China, and others, as culprit. There are ongoing attacks on the U.S. (

Apparently the U.S. has made statements that a cyber-attack could be considered an act of war
However, note that this is not just ANY cyber-attack, but something that involved a danger to the civilian population. Stuxnet doesn't really meet that criterion. be fair, China could do a lot and get away with it. Iran can do nothing and be screwed.

Iraq got screwed because some people thought their WMDs existed in the present. Iran is going to be screwed because we think they might have them in some undefined future. They don't have to be an existential threat, and in fact, the threat doesn't have to actually exist.

So, the definition of "act of war" is pretty slippery in the hands of the current regime. Who knows what it means.

We don't always agree, but I love this sentence: "They don’t have to be an existential threat, and in fact, the threat doesn’t have to actually exist."

Maybe we should just redefine (for the sake of political conversations) "existential threats" as those threats that may or may not exist. That'll serve the greatest good for the greatest numbers of politicians and polemicists. That definition has won anyway as the de facto standard.

You would think the nearly universal premium placed on human life would result in the embrace of the least lethal form of warfare imaginable.

So cyber attacks all round? Or the India/Pakistan nuclear exchange, where all nuclear weapons were exploded deep underground, and in their own country.

Interesting response to the complete subversion of Free Economics by Tyler Cowan's support of Government HC over @ Bob Wentzel's blog.

Attacks have been happening all along on the internet. China has hacked almost all US computers, including Defense. The US doesn't say much about this, as it invites further attack. Also, Russia and other former east bloc countries profit greatly from identity theft and credit card fraud. Russia shut down Estonia's computer networks when they had a spat with them. If you have networks of computers, someone is going to try to hack them.

Hell, when we bombed Libya for SEVEN MONTHS it barely made the papers at all. Why would they report on some confusing computer story? There aren't even any explosions.

The media has to cover for Obama for 4 more months. Expect everything to be ice cream and puppy dogs for the bulk of that time.

Your usual level of 'insight'. If Obama hadn't done anything in Libya you'd be on him for that. True story.

Looks like "Obama 1- Arizona 0" on the immigration case.

remember that military intervention in Uganda we had a national debate over 6 months ago? yeah me neither

1) "If the Supreme Court strikes down ACA in part or as a whole, and you did not like the law in the first place, do not assume you should be happy." If the Supreme Court strikes down the ACA in part or as a whole by correctly interpreting the commerce clause and acknowledging limits to the power of congress I will be very happy. That almost never happens. It would be a rare win for justice on this issue, and it would be worthy of celebration for what it is, regardless of what it leads to in the future.

2) "It is far from obvious that we will end up with something better." It is also far from obvious that we will end up with something as bad or worse; these unknowable possibilities of what might or might not happen in the future will not affect my happiness based #1.

3) "No matter what happens, America still needs health care reform ..." Regardless of the decision, this was true last week and it will be true next week, so again, this will not change my happiness from #1.

4) "...and this will require cooperation across the ideological spectrum." Maybe, maybe not. I see no evidence suggesting that this is true, and in any case, again, it does not change my happiness from #1. If it was true before the decision it will be true after the decision. If it was false before the decision it will be false after the decision. It's no reason for me to forgo celebrating justice.

I think the reason to celebrate if the mandate is struck down is the broccoli argument. The mandate itself is trivial compared to the precedent it would set.

The government can buy brocolli for you (constitutional) and tax you for it or can make you buybrocolli insurance you will eat sometime eat in your life.

Ask yourself this question:

If this were WWII (or Israel today) and the government required you to purchase a gas mask because they wouldn't want you crawling to the hospital with respiratory pains and overwhelming the system, could they do so?

Could they require you have a sprinkler system in your hotel?

If you were a Western fruit farmer and there were a marketing order in which 2/3s of the other farmers voted to institute a check off program for advertising the fruit, could the government require you, as a fruit farmer who voted against the checkoff, to contribute to the program.

The government "can" do whatever they can get away with.

The government cannot do that with legal, philisophical, or economic justifications.

So, to answer your questions, 1. Yes, 2. No.

If they required gas masks in WW2 it was an obvious colossal waste of resources that they had no justification for.

The militia power is enumerated. They can not force me to own a hotel, no. They cannot force me to be a western fruit farmer. Come on, Bill, I'm no lawyer, and I know these are easy questions, even with our modern ridiculous Commerce Clause.

care, They cannot force you to be healthy, and they cannot force you to be sick, but you will be all of these sometime in your life.

Can't force you to get treatment, either.

But now we're into broccoli insurance mandates.

Just wanted to point out something regarding the whole cyberespionage/sabotage/war issue.

All of your questions are assuming that these things haven't been going on (i.e. "will they start trying to do it to us?") But China and Russia (presumed culprits in the following) have been very active in cyberespionage; look up Titan Rain and Moonlight Maze for cases in which the US government and corporations discovered data theft on a truly massive scale. Flame was just a much more sophisticated version of that; although people say Flame is much bigger than Stuxnet, I disagree because Stuxnet was one of the first major cases of sabotaging a physical system through hacking, and especially one of the first cases in which the sabotage actually permanently destroyed specific targeted equipment.

As regards to all-out militarization of the internet, consider that China (a) manufactures quite a lot of electronics, and I don't imagine it would be a particular stretch to consider that they've placed hidden vulnerabilities in our systems (remember how quickly they broke into the NSA's OS when our spy plane went down in Hainan in 2001), especially given that they have homegrown chips and homegrown securities systems they insist on making themselves, and (b) China has the ability to cut its internet off from the rest of the world at will. Militarization of the internet is already here, and the United States is being way too complacent about defense, especially at the way our electronic systems are manufactured abroad.

It may have been far from the first example.

The incidents, if certain descriptions are true, are remarkably similar. Control software was hacked to cause rotating machinery to spin much faster than intended.

You're absolutely right, I totally forgot about that example.


(1) Hasn't China been doing cyber-espionage on US businesses for years? I don't recall you worrying about that.

(2) US government and businesses have been the victims of cyber-attacks for years. The Pentagon is hit daily with e-attacks. The US State Dept suffered a grevious breach of security when "Anonymous" published Wikileaks. Did I miss your worries about these issues?

(3) Would it be better to bomb Iran to stop its nuclear program, or is it better just to sabotage its nuclear facilities with a "virus"? You don't get to choose none of the above.

(4) As far as biological attacks, the US has suffered biowarfare. It was the anthrax attacks in 2001. I am not fully satisfied with the official conclusion to that story.

The problem with a defense constituted with threatening people is that it causes your threats to multiply.

A better defense would be to say "we want peace with anyone who wants peace with us." It says the same thing as the open threat but is much more effective at a much lower cost.

"Saddam Hussein Said WMD Talk Helped Him Look Strong to Iran"
"Saddam Hussein told an FBI interviewer before he was hanged that he allowed the world to believe he had weapons of mass destruction because he was worried about appearing weak to Iran, according to declassified accounts of the interviews released yesterday. The former Iraqi president also denounced Osama bin Laden as "a zealot" and said he had no dealings with al-Qaeda."

I also found this interesting:

"Hussein noted that Iran's weapons capabilities had increased dramatically while Iraq's weapons "had been eliminated by the UN sanctions," and that eventually Iraq would have to reconstitute its weapons to deal with that threat if it could not reach a security agreement with the United States.

When Piro noted that there were reasons why Hussein and al-Qaeda should have cooperated -- they had the same enemies in the United States and Saudi Arabia -- Hussein replied that the United States was not Iraq's enemy, and that he simply opposed its policies. "

What Republicans seem to feign in their exposition of foreign policy is a sophistication and maturity level that is put to shame by the very people they use wars to assassinate.

“We want peace with anyone who wants peace with us.”

What exactly does that mean?

It probably sounds clever and tolerant when you say it to yourself, but it's a complete semantical mess. (Very) few states want war itself; but sometimes war or the threat of war is the only way to secure a basket other goods that one wants. Like security, for starters. You can always have peace if one submits entirely to another's will.

If you most conflicts arise because states have bad presentational style, then you probably don't understand geopolitics.

You forgot the .

Let's talk about this part:

"It is far from obvious that we will end up with something better."

Not having it for the afternoon (although now the ruling is not planned for today) will be something better. To say that it is not obvious that we will get something better is to assume that repeal leaves a vacuum that will be filled. That is only true if this qualified as the type of healthcare reform that we need. It didn't, so whether ACA is overturned or not there is still a vacuum that will be filled with some future disaster.

Won’t somebody fairly soon try to do it to us?

Haven't they?

Alex T: "By the way, didn’t it just come out in The Washington Post that the United States helped attack Iran with Flame, Stuxnet and related programs? If they did this to us, wouldn’t we consider it an act of war? Didn’t we just take a major step toward militarizing the internet? Doesn’t it seem plausible to you that the cyber-assault is not yet over and thus we face immediate questions looking forward? Won’t somebody fairly soon try to do it to us? Won’t it encourage substitution into more dangerous biological weapons?"

This is one the big problems with the 'War on Terror'. AFAIK, the initial authorization for the use of forms left it up to the Executive to determine who/what/where/when/why. In others, a blank check declaration of war against [fill in the blanks].

"the United States helped attack Iran with Flame, Stuxnet and related programs? If they did this to us, wouldn’t we consider it an act of war?"

Couldn't that also be said of many other traditional warfare-like things the US has done via bombs, special ops, drones, etc in many a country?

And don't forget that many Americans WANT a war with Iran? (or was the "Bomb, bomb, bomb Iran" song not enough of a clue?)

Let's have a war with Iran, then Iranians can sue and take it to the Supreme Court. We have to do it to see if it is declarable. Oh wait, they don't have standing.

Americans want a war with Iran to some extent that they believe the words of our politicians that Iran is belligerent. Iran is belligerent in part because of our secret poking.

The point is that if Iran were secretly poking us, Iranians might be fooled, but we wouldn't.

For commentary on cyberwar with links to a counter-view take a look at this blog post and some earlier ones at the same site.


"If the Supreme Court strikes down ACA in part or as a whole, and you did not like the law in the first place, do not assume you should be happy. It is far from obvious that we will end up with something better."
Why shouldn't Republicans (or the Right generally) assume that health care reform passed under strong Democratic majorities in Congress and a Democratic president is likely to be worse than any necessary reform passed later? It is rare for the Democrats to enjoy that advantage; 1979-80, 1993-94, and 2009-10 were far apart, short-lived, and each followed by dramatic Republican victories.

Additionally, because of rising costs (due in part to demographic trends that are just now heating up, like the Boomers reaching Medicare eligibility age), especially in government-provided care, delay means more dramatic action will be required later. Republicans may be calculating that when the entitlements are more obviously bankrupt they will be more susceptible to dramatic conservative reforms than to rescue via sharp tax hikes that necessarily fall on not only the wealthy but the middle class as well.

Very good article on how the Republican machine has been slowly but surely moving to create an environment in which the Republican-appointed justices could rule that a Republican idea that no legal scholars two years ago even believed the Court would hear is unconstitutional. They need permission to do it. Now they seem to have it.

If the Court does find the mandate unconstitutional, the brightest stars in the conservative legal firmament who have upheld the mandate will look like total and utter fools for not understanding how the system works. It is unlikely they will ever even be considered for a future seat on the Court.

Just a point of info, "judicial activism" is not the court exercising its traditional right of judicial review and certainly not exercising judicial review only in ways one party dislikes against particular laws they enjoy.

Sayeth the Wiki: Black's Law Dictionary defines judicial activism as a "philosophy of judicial decision-making whereby judges allow their personal views about public policy, among other factors, to guide their decisions."

Sounds a little bit like the problem with a lot of economists these days, but I digress. Essentially, judicial activism is the court usurping the legislative power. Judicial review is the court exercising its own power to enforce laws consistent with higher (small 'h') law. There are instances where these overlap and also where they are distinct. They are not synonymous. We could do with a lot more judicial review combined with a Supreme Court that earns the voluntary following of lower courts.

The yeah, I don't think there's any way in hell Randy Barnett was even getting nominated before this case, so I don't think that will keep him up at night.

"Shouldn’t this have set off a large-scale national debate?"

Tyler, what are you? New? We don't do large-scale national debates under this administration. Bet you know that but just don't want to admit it to yourself or your public.

"If the Supreme Court strikes down ACA in part or as a whole, and you did not like the law in the first place, do not assume you should be happy."

If that's the outcome, I will be happy because it will represent a restraint on an unlimited commerce clause that will apply to other domains as well as health care. And as bad as the mandate is, the IPAB seems worse:

So I'll be happy if these unconstitutional power-grabs are smacked down and I'm willing to take my chances on alternative health care plans (and no new health care plan at all would be a major improvement over the ACA).

"If they did this to us, wouldn’t we consider it an act of war?"

No, china does things like this every day (although significantly less sophisticated.) The last large scale hack they did, iirc we just launched a formal complaint to their government.

China's attacks are significantly less sophisticated... OR they are significantly MORE sophisticated and so we haven't worked out why things keep going wrong all the time.

I love censured data problems. :-)

Seriously, yes, China vs the entire west & Japan, Russia vs Estonia, Georgia...there's plenty of third parties examples. The US shouldn't beat itself up over this. I suggest we are seeing an emerging pattern of practice and acceptance. Providing you don't do too much damage or obviously kill anyone, then it's handled at the level of diplomatic protest; just one of those things states do to other states that they don't like on a peacetime basis.

As for incentivising use of biologicals? Tyler, I'm filing this under your "one stupid comment per year" section.

ACA *is* constitutional. If it is struck down, it will just be further evidence of the constitutional overreach of the current Supreme Court.

Glad that's settled. What were we thinking, of course it's that easy!

Hi. I work in precisely this field (I'm looking for an assistant professorship at the moment) and can recommend you to tune in with Bruce Schneier. There's not much good writing about the future of cyberspace and cyberwar, but this is a nice starting point: There's some more in his blog.

It wouldn't bother me a bit if we did go to war with Iran. I certainly believe the best way to ensure peace in that part of the world would be to formally and publicly put Israel under the US's nuclear umbrella.

A good case can be made that the US and Iran have been at war since they took our hostages in 1979 -- a crime in which I believe their current president participated as one of the "students." In which case I would like us to return the favor by arresting him the next time he tries to visit the UN. If he screams that we're violating diplomatic immunity, laugh and point out that he did it first.

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