Month: June 2012

The Improper Individual Mandate

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Liberals who are pessimistic about the prospects in the Supreme Court this week for the Affordable (or is it Abominable?) Care Act, known as “ACA,” have been preparing the ground by publicizing surveys measuring the unpopularity of the Court. Liberals who are optimistic, such as former speaker Nancy Pelosi, predict that ACA will be upheld 6-3.

The 6-3 breakdown comes from the result in Gonzales v. Raich, 545 U.S. 1 (2005), in which the Supreme Court held that prohibiting the cultivation of marijuana for personal medicinal use was within Congress’s powers under the Interstate Commerce Clause. To the dismay of many conservatives, Justice Antonin Scalia concurred with the majority. His concurring opinion shows how to apply the Commerce Clause to something as far from interstate commerce as ACA’s individual mandate.

And the individual mandate is very far from interstate commerce. An individual is not engaging in interstate commerce merely by refraining from buying health insurance. He is not engaging in commerce. He is not engaging in anything. That puts the individual mandate beyond Congress’s commerce power but not necessarily beyond Congress’s powers.

The Supreme Court has said that Congress has the power to regulate the channels and instrumentalities of interstate commerce as well as activities that substantially affect interstate commerce. Justice Scalia said in his concurring opinion in Raich that the power to regulate activities that substantially affect interstate commerce does not come from the Commerce Clause alone but from the Commerce Clause plus the Necessary and Proper Clause. The Necessary and Proper Clause has extended the Commerce Clause pretty far. Scalia wrote that “Congress may regulate even noneconomic local activity if that regulation is a necessary part of a more general regulation of interstate commerce.”

As disturbingly vast as that power might be, the Supreme Court would have to extend it even further to reach non-economic local inactivity. That extension may or may not be “necessary” to make ACA effective, but is it “proper”? At oral argument Justice Scalia posed that question to Solicitor General Donald Verrilli:

Necessary does not mean essential, just reasonably adapted. But in addition to being necessary, it has to be proper. And we’ve held in two cases that something that was reasonably adapted was not proper, because it violated the sovereignty of the states, which was implicit in the constitutional structure. The argument here is that this also is — may be necessary, but it’s not proper, because it violates an equally evident principle in the Constitution, which is that the federal government is not supposed to be a government that has all powers; that it’s supposed to be a government of limited powers. And that’s what all this questioning has been about. What — what is left? If the government can do this, what — what else can it not do?

The solicitor general (who didn’t do such a bad job overall) replied that the individual mandate does not invade the sphere of state government but, despite several follow-up questions, did not answer the question of whether the individual mandate improperly invades the sphere of individuals. Justice Kennedy pressed further, saying that “to tell the individual citizen that it must act . . . changes the relationship of the federal government to the individual in a very fundamental way.” General Verilli replied that the individual mandate is predicated on the individual’s unavoidable participation in the health care market.

That appeared to be enough for Justice Breyer, who in the course of rambling questions in search of a defense of the act, asked whether one enters the health care market simply by being born. Four justices seemed to find such a limitless premise for federal regulatory power troubling. They, along with Justice Thomas, may also find it improper.

Should that happen, leftists, with their newfound conviction that judicial review is anti-majoritarian, will switch into their outraged and indignant mode. How dare the Court strike down an act because it isn’t proper after Obama and the Congress decided that it was?

The answer will be that the Court is merely giving meaning to the outermost boundary of congressional power. What hangs in the balance this week is whether the powers of Congress are in theory limited but in practice infinite.

Trees: Phototropic Simplexities

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[ Cross-posted from Zenpundit — this one’s a prose poem: it begins with a statement so tight it needs to be unwound, & unwinds it ]
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I wrote this urgently starting when it “woke” me at 4am one morning in the late 1990s or 2000, and as soon as it was out, I found myself writing another piece in the series, a game design. Together, the pair of them represent a stage in my games and education thinking intermediate between Myst-like Universities of 1996 and my vision today of games in education. In this posting, I have added the words “figuratively speaking” for absolute clarity: otherwise, the piece remains as written all those years ago.

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A copse. Photo credit: Ian Britton via FreePhoto.com under CC license. Note how the wind sweeps the trees into a group shape.

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Trees: Phototropic Simplexities

Trees are phototropic simplexities, no wonder we like them they cowork so well too: copses, see.

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Meaning:

Trees we know: I as writer can refer you, reader, safely to them, “trees”, in trust that the word I use will signal to you too — triggering for you, also — pretty much the assortment of branching organic thingies about which I’m hoping to communicate that they are complex entities whose complexity comes from a simplicity of rule — branching — repeated with variations, said variants doing their branching in thirst of light, each trunk rising, limb outpushing, branch diverging, twig evading other twig much as one who seeks in a crowd a clear view of a distant celebrity shifts and cranes and peers — branching, thus, by the finding of light in avoidance of nearby shadow and moving into it, into light as position, that light, that position, growing, and thus in the overall “unified yet various”, we, seekers of the various and unified love them, to see them in greens themselves various in their simplexity is to say “tree” with a quiet warmth; while they themselves also, by the necessity of their branching seeking, if clumped together seek in an avoidance of each other’s seeking, growing, thus space-sharing in ways which as the wind sweeps and conforms them to its own simplex flows, shapes them to a common curve we call aerodynamic, highlit against the sky huddled together as “copse” — this, in the mind’s eyes and in your wanderings, see…

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Meaning:

Trees we can talk about. Simplexity is a useful term for forms — like trees — which are neither simple only nor complex only, but as varied as complexity suggests with a manner of variation as simple as simplicity implies.

Trees? Their simplexity is conveyed in principle by the word “branching”. Its necessity lies in the need of each “reaching end” of the organism to ascertain from its own position and within the bounds of its possible growing movement, some “available” light — this light-seeking having the name “phototropism”.

Simplexities — and thus by way of example, trees — we like, we call them beautiful.

Clustered together, too, and shaped by the winds’ patterns of flow, these individual simplexities combine on an English hilltop (or where you will) to form yet other beauties.

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Thus:

Trees are phototropic simplexities, no wonder we like them they cowork so well too: copses, see.

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Meaning:

I love trees. Want to talk about simplexities, beauty.

I wish to talk about beauty because it is beauty that I love, if I love it, that is beauty: love is kalotropic, a beauty-seeking. I am erotropic, love seeking — you can find in this my own simplexity, my own varieties of seeking, of the growths that are my growth, and clumping me with others under the winds, the pressures that form and conform us, you can find also the mutual shapes that we adopt, beautiful.

Simplexity, then, is a key to beauty, variety, self, character, cohabitation… Tropism, seeking, is the key to simplexity. Love is my tropism. Ours, I propose.

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Meaning:

Beauty is one simplexity perceived by another: the eye of the beholder, with optic nerve, “brain”, branching neuron paths that other simplexity, “consciousness” the perceiving.

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Meaning also:

That all is jostle, striving — a strife for life, in which the outcome overall is for each a “place in the sun” but not without skirmishes, shadows. The overall picture, therefore, beautiful — but this overall beauty hard to perceive when the specific shadow falls in the specific sought place of the moment, the “available” is not available, and the strife of the moment is paramount.

Branching being the order behind simplexity, differentiation…

Differentiation for maximal tropism at all levels — life seeking always the light, honey, beauty, is always and everywhere in conflict also with itself, competitive: and competition the necessary act of the avoidance of shadow, and the shadow creating act.

And beauty — the light, thing sought, implacably necessary food and drink, the honey — thus the drive that would make us kill for life.

I could kill for beauty.

I could kill for honey.

Figuratively speaking.

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Implying:

Paradise and Fall, simultaneous, everywhere.

It is at this juncture, at this branching, that we are “expelled from the garden” — can no longer see the beauty that is and remains overall, that can allow us to say also, “we are never outside the garden” — for the dappling of light on and among the leaves has become to us, too closely jostled, shadow.

And shadow for shadow we jostle, and life is strife.

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Thus:

The dappling of light on leaves, beautiful, is for each shadowed leaf, shadow, death-dealing, is for each lit leaf, light, life-giving: a chiaroscuro, beautiful, see.

Roots, too, have their mirror branchings.

Skipping Science Class, Yet Again

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In 2005, I posted skipping science class, about some disturbing trends in UK science education, and in 2008, I posted an update under the title skipping science class, continued.

Concerns about the state of science education are not limited to the UK. Today, Stuart Schneiderman cites a DOE study on science education in America. He cites Forbes writer Maureen Henderson, who comments on the study:

For example, 75% of high school seniors could successfully use test strips to test water samples for the levels of four pollutants, record the data and interpret whether the results exceeded EPA standards, but only 25% of students were able to design and conduct an investigation using a simulated calorimeter and related patterns in temperature changes in two different metals to determine which metal has the higher specific heat capacity. Results were the same at the lower grade levels, where only 24% and 35% of eighth and fourth graders respectively were able to handle the more difficult experiments. Students also had difficulty in explaining how they arrived at a correct conclusion, with only 27% of twelfth graders able to both select a correct answer and explain why they did so in one section of the test. And in another section, only 11% were able to make a final recommendation that was supported by the data they had worked with in the experiment.

Note that a lot of the test questions, and I’m sure a lot of the topics covered in school “science” courses, have to do with environmental matters.

Basically, it seems that in the American government schools, as in their British equivalents, all subjects whatsoever tend to get converted into “social studies.”