Understanding the ACA Arguments
Rick Duncan
nebraskalawprof at yahoo.com
Thu Mar 22 17:52:43 PDT 2012
The sex-slave part of the movie has nothing to do with the analogy.
The analogy is about non-activity (someone who does not want to be forced into a market) being treated as activity.
Literally,
when I watched the movie Taken, the first thing I thought about as the
girl was being dragged out from under her bed was the Commerce Clause
issue in Obamacare and someone being dragged against his will into the health insurance
market.
Moreover, whether the penalty is a few thousand dollars
or being sold as a sex slave, this also doesn't matter. What matters is
when the words "but I don't want to be in the market" is ignored by
someone with power.
So when someone says the analogy is bad because "Obamacare
isn't about sexual slavery," I am not persuaded. I know it isn't. But it is about an
unwilling citizen being dragged, against his will, into a market he does
not wish to enter. That is the analogy. And the picture from that scene
in Taken demonstrates it brilliantly.
If you don't like the analogy, don't use it. But I will continue using it because the popular culture is a wonderful way to help students see issues. And the scene in Taken is a powerful depiction--not of sex slavery, but of a person being dragged into something--anything--he does not consent to.
Cheers, Rick Duncan
Rick Duncan
Welpton Professor of Law
University of Nebraska College of Law
Lincoln, NE 68583-0902
"And against the constitution I have never raised a storm,It's the scoundrels who've corrupted it that I want to reform" --Dick Gaughan (from the song, Thomas Muir of Huntershill)
--- On Thu, 3/22/12, Janet Alexander <jca at stanford.edu> wrote:
From: Janet Alexander <jca at stanford.edu>
Subject: Re: Understanding the ACA Arguments
To: conlawprof at lists.ucla.edu
Date: Thursday, March 22, 2012, 4:49 PM
Professor Roosevelt gently demonstrated, by rewriting your analogy,
not the screenplay, that the analogy is completely wide of the mark.
Students may be able to "grasp" the point you're making with the
analogy, but only because they are being misled. Such purposes are
not "humble" in teaching, in my view.
On 3/22/12 4:28 PM, Rick Duncan wrote:
Prof. Roosevelt's
re-write of the Taken screenplay is obviously on point..
But it wouldn't leave anything for Liam Neeson to do. The
movie would have bombed at the box office and Liam Neeson
would be out of work. So, on balance, I like the original
movie better and it still works for my humble purposes.
I like the original analogy better as demonstrating for my
students how inactivity ("I don't want to buy health
insurance") is treated as activity ("but someday in the
near or far future you will go to an emergency room, so we
will treat that as present activity") under Obamacare. I
know: X is Y for the purposes of Z. The analogy
demonstrates that move in a manner the students can grasp.
Rick Duncan
Welpton Professor of Law
University of Nebraska College of Law
Lincoln, NE 68583-0902
"And against the constitution I have never raised
a storm,It's the scoundrels who've corrupted it that I
want to reform" --Dick Gaughan (from the song, Thomas
Muir of Huntershill)
--- On Thu, 3/22/12, Kermit Roosevelt <krooseve at law.upenn.edu>
wrote:
From: Kermit Roosevelt <krooseve at law.upenn.edu>
Subject: Re: Understanding the ACA Arguments
To: "Rick Duncan" <nebraskalawprof at yahoo.com>
Cc: "conlawprof at lists.ucla.edu"
<conlawprof at lists.ucla.edu>
Date: Thursday, March 22, 2012, 4:05 PM
I know I'm coming late to this issue, but for
this to be a good analogy, wouldn't it also have
to be the case that the kidnappers told her she
could stay under the bed if she paid a penalty?
And that the people who chose to hide under the
bed then frequently showed up at sex slavery
emergency rooms and consumed 43 billion dollars
worth of services that taxpayers had to pay for?
Kermit Roosevelt
Professor of Law
University of Pennsylvania Law School
3400 Chestnut St.
Philadelphia PA 19104
215.746.8775
On Mar 21, 2012, at 12:39 PM, "Rick Duncan" <nebraskalawprof at yahoo.com>
wrote:
Thanks for the
link.
In class, I like to use a
scene from the recent Liam
Neeson movie, Taken, to
illustrate the difference
between Wickard/Raich and
Obamacare's individual
mandate. In the precedents,
the farmer/grower was engaged
in some productive
activity--growing wheat or
weed for personal use or use
on the farm. However, under
Obamacare individuals want
nothing to do with health
insurance and are dragged into
the market by government.
It is like that scene from
Taken where Liam
Neeson's daughter is hiding
under the bed from the
kidnappers who want to auction
her off in the sex slave
market. She is hiding, curled
up under the bed, and just
when we think she has escaped
we see two hands reach under
the bed, grab her by the legs,
and drag her off to be sold.
Similarly, under Obamacare, we
have Citizen John Doe curled
up under his bed screaming
"but I don't want to buy
insurance, please leave me
alone," when suddenly the long
arm of Leviathan reaches under
the bed and drags poor John
off to the health insurance
market.
I am not sure this is an
argument for court, but it
sure helps students see that
Obamacare is a bridge well
past the facts of Wickard
and Raich.
Prof. Rick Duncan (Nebraska
Law)
See my recent
paper on The Tea Party,
federalism, and liberty at:
http://ssrn.com/abstract=1984699
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