Author Archive

Bulletin for Seniors (and Juniors?) Interested in Ethics

Tuesday, July 2nd, 2019

The course on Ethics offered in the autumn is at a college level, so the work will be challenging and interesting. The text originally identified, Alasdair MacIntyre’s After Virtue, begins with the problem that the variety of moral beliefs, and the difficulty of finding objective reasons to prefer one over the other, invites the conclusion of relativism, that is, what is right and wrong depends on one’s culture and preferences and there is no universal standard. MacIntyre rejects that conclusion. To explore how to evaluate competing moral beliefs, he develops a strand of Western ethical theory that has its origins with Aristotle. One weakness of MacIntyre’s book, for the high school student, is that he assumes considerable knowledge about historical approaches to ethics. The problem he deals with, and the solution he proposes, makes more sense if the historical material is mastered first. I have been looking for a good text to present the historical material and have found it in Robin Lovin’s Introduction to Christian Ethics. That book will be added to the course listing. Now the course is well balanced. Roughly the first half will present the general topic of ethics and survey various approaches taken by Western thinkers since Socrates. The second half will focus on MacIntyre’s book. I hope this course will be worthy of study both for its inherent interest and for the way it provides an introduction to some important philosophers in the Western tradition. It will also be an opportunity to develop college-level writing skills.

Yet More About the Supreme Court’s PPACA (Obamacare) Opinion (Part 3)

Friday, August 17th, 2012

Last time, we talked about whether the federal Anti-Injuction Act barred challenges to the PPACA. All nine justices were united in the view that it did not, which leads us to the question whether the “shared responsibility payment” (“SRP”) provision of the PPACA was within the power of Congress to enact. Here we do not find unanimity.

Justice Roberts, in the lead opinion, concludes that Congress had no power to enact the SRP under the Commerce Clause of the Constitution. In this conclusion he is joined by Justices Scalia, Kennedy, Thomas and Alito, whose reasoning closely follows that of Justice Roberts.

This issue was expected to be the heart of the case by readers of the briefs and observers of the oral argument. The Commerce Clause (along with the Necessary and Proper Clause) was the Government’s primary justification for the validity of the SRP and the primary point of attack for the challengers.

The Commerce Clause is in Article I Section 8 of the Constitution and reads as follows: “The Congress shall have the power to . . . regulate commerce with foreign nations, and among the several states, and with the Indian tribes. . . .” At least part of the intent behind this provision was to prevent the various states from erecting tariffs against one another (some states had done this following the Revolutionary War). But talking about the “intent” is already, as noted in an earlier entry, to begin to take sides in a controversy about how the Constitution should be applied.

Justice Roberts acknowledges that “it is now well established the Congress has broad authority under the [Commerce] Clause.” He cites the 1942 case of Wickard v. Filburn, which considered a federal quota on the amount of wheat grown per acre (the intent was to increase the price of wheat for the farmers’ benefit). Filburn argued that Congress had no power to regulate his wheat production because he used all of his wheat himself (e.g. for feeding his chickens) and did not sell it in interstate commerce. The Supreme Court upheld the law, arguing that Filburn’s violation of the quota made him less likely to purchase wheat from others. This activity, if aggregated among many wheat consumers, could have a significant effect on the price of wheat in interstate commerce and therefore triggered Congress’s power.

Justice Roberts evidently thinks that Wickard represents an extreme limit on Congressional power. As he says, even if Congress can regulate many kinds of commercial activity on the theory that affects – perhaps indirectly – interstate commerce, “Congress has never attempted to rely on [the Commerce Clause] power to compel individuals not engaged in commerce to purchase an unwanted product.” The dissent agrees, saying that Wickard has been regarded as the “ne plus ultra of expansive Commerce Clause jurisprudence.” (“Ne plus ultra” is what Gandalf says to the balrog in the Latin version of the Lord of the Rings.)

Justice Roberts and the dissent draw two conclusions here. First, no prior case construing the Commerce Clause has ever permitted Congress to require citizens to purchase a commercial product. Second, if Congress can require the purchase of a commercial product, then there is no principled limit on Congress’s power, contrary to the intent of the framers of the Constitution that the federal government was one of only limited powers. As the dissent notes, the Government was invited, at oral argument, to say what federal control over private conduct could not be justified on the same basis as the PPACA mandate. “It was unable to name any.”

The concurring opinion by Justices Ginsburg, Breyer, Sotomayor and Kagan makes an effort to answer the question “if Congress under the Commerce Clause can require citizens to purchase insurance policies, are there any principled limits on its power?” This has sometimes been expressed in a more colorful way: “Can Congress require everyone to purchase broccoli?” That question will be considered in the next entry.

Further Reasoning Re the PPACA (Obamacare) Opinion

Saturday, July 14th, 2012

On the Supreme Court website, you can find the docket for this case (the title is National Federation of Independent Business v. Sebelius), which lists all the papers filed with the Court (this word is traditionally capitalized for the Supreme Court). It’s a long list. Oral argument is a dramatic high point, but it is only the tip of the iceberg in terms of the information provided to the Court.

The opinion begins with a “syllabus” by a Court official, the Reporter of Decisions. The syllabus summarizes the background of the case and the main issues resolved in the opinion. Note that there are multiple opinions and various justices have joined in different parts of those opinions. To figure out whether the Court’s has a “majority opinion” on any particular point, you must count how many justices sign (or concur in) a particular opinion part.

The PPACA is a complex law. Fortunately us, the Court focused chiefly at two provisions. The first is the “individual mandate” that requires everyone (with some exceptions) to purchase health insurance meeting various federal requirements or else pay a “shared responsibility payment” (let’s call it the “SRP”) to the federal government. (Note that in the following discussion I am not concerned with the wisdom of the PPACA, only with whether it is a valid enactment. This is (or should be) the Court’s approach as well.)

Before asking whether the individual mandate is a proper exercise of Congressional power, Chief Justice Roberts considers the federal Anti-Injunction Act, a law that prohibits challenging any tax before the challenger has actually paid it. Should the SRP be considered a tax? If so, then any court challenge is premature because no one has yet paid the SRP.

Chief Justice Roberts discusses this issue in part II of his opinion, concluding that the SRP is not a tax for purposes of the Anti-Injunction Act. His reasoning is straightforward: the PPACA contains several provisions that expressly impose taxes but the SRP is called a “penalty” and not a tax. The Chief Justice notes, “[w]here Congress uses certain language in one part of a statute and different language in another, it is generally presumed that Congress acts intentionally” and “the best evidence of Congress’s intent is the statutory text.” (These statements, it seems to me, reflect a judicial approach to acts of Congress that respects the equal status of the two branches.)

To make sure this issue was fully considered, the Court invited a senior lawyer (a “friend of the Court” or in Latin “amicus”) to submit a brief making the best arguments in favor of applying the Anti-Injunction Act. The amicus suggested that since the PPACA calls for the SRP to be “assessed and collected in the same manner” as taxes, this is evidence that the SRP is a tax. Chief Justice Roberts rejects this argument. To the contrary, he says, this provision actually supports the conclusion that the SRP is not a tax. If it were a tax, there would be no need to direct that it be assessed and collected in the same manner as taxes. It is because it is a penalty (and not a tax) that it makes sense to explain that the procedure for collecting it will be through the taxing authority.

Justices Ginsburg, Sotomayor, Breyer and Kagan agree with the Chief Justice’s conclusion in their separate opinion, and Justices Scalia, Thomas, Kennedy and Alito also agree in their dissent. So this part of the opinion is unanimous in result, if not in reasoning.

Reasoning as an Aid to Charity During an Election Year

Thursday, July 12th, 2012

During an election season, emotions run high. Citizens are rightly concerned about the important issues at stake. They naturally feel upset when those issues are unfairly characterized by their political adversaries. Those who seek to remain in charity with their fellow-citizens can find it a time of stress.

The United States Supreme Court’s recent decision regarding the Patient Protection and Affordable Care Act (Obamacare) has caused many veins to throb. Pundits have been quick to suggest that the justices (majority or dissent, depending on the pundit’s views) decided the case based on impure motives.

In my class on reasoning, the curriculum usually includes review of a controversial legal opinion. Unfortunately, the PPACA case was decided too late this year to be covered. Approaching a legal opinion from the point of view of legal reasoning — rather than an opportunity for political partisanship — can be an exercise both enlightening and conducive to at least temporary charity.

Here are some general comments about how someone, after taking my class, might approach the opinion.

1. It is a general principle that reasoning in all fields must begin somewhere. In logic, certain basic forms of argument (such as: for each proposition A, either A or not-A is true) must simply be accepted as valid; no more fundamental logical premises are available from which to prove them. Practical reasoning also involves premises that are accepted without proof. If we say, “you should brush your teeth,” we assume our interlocutor shares interests with us (avoiding tooth decay and bad breath). In scientific reasoning, we assume that certain sensory observations are reliable and that instrument readings correlate to physical conditions. In moral reasoning, we typically begin with basic moral principles (the Decalogue, the Sermon on the Mount, the classic Greek virtues, advancing the Revolution, etc.). In theological reasoning, we typically begin by assuming that certain experiences and liturgical practices are reliable indicators of the divine nature and purposes. In each case, someone may refuse to accept our starting points. Before reasoning can resume we must find out what that person’s premises are.

2. One of the fun challenges of reasoning is to discern what premises have been assumed. For example, the argument “law X should be passed” typically draws upon unstated premises about human flourishing, the role of government, the intended effects of the law, and defects in current laws. Bringing those premises to light can clarify the issues, advance debate, and increase charity.

3. Unlike logic (where few deny “either A or not-A”), or science, where few deny that sensory data are generally reliable, or even morals, where few deny the distinction between good and evil (though callow bloggers may adopt this pose), the law is an area in which argument over premises is not only possible, it has been (for the past century or two anyway) common. To greatly oversimplify, a continuum can be drawn between two extremes. On the one hand, someone might say that the Constitution and the laws have been written by the framers of the Constitution and the Congress and the job of the Court is simply to apply those pre-written rules, without discretion. On the other hand, someone might say that the Court has great discretion to consider or ignore the Constitution and laws, which are products of particular times and places, in exercising of its own moral (and common) sense. Both of these extremes are caricatured, and the actual business of judging is much more complicated. But for clarity to emerge we must be open to the idea that the different justices may have different ideas of their proper roles in the Constitutional order.

4. Review of the PPACA decision should begin by recognizing that multiple issues were presented and different groups of justices joined in different parts of multiple opinions. Only after sorting out the different questions posed and the different answers given can we begin to discern the reasoning in the various opinions.

If this subject is of interest to the readers of this blog, I could continue with a more detailed review along the lines sketched above.