Understanding the ACA Arguments

Thu Mar 22 18:27:09 PDT 2012

...except that the person is, by having bodily health that she is caring for in some resource-consuming way, already in the market, not out of the market under a metaphorical bed.  Right now, she is either "growing her own" health care or buying it from others-either of which is an economic, market, demand event.  (Cf. Wickard v. Filburn, Lopez, Morrison, Raich, you name it.)  And if she is now growing her own, at some point that will, almost surely, cease to satisfy her demand for health.  Then she will turn up us as a customer of the rest of us health care providers.  And we will, to our moral credit, give her additional, probably better, definitely expensive (about $43 billion worth), health care.

That one would see this movie scene (I haven't) and think first, not to mention at all, of the ACA and the Commerce Clause is, well, evidence that some of us live on our own planets.  I guess the question boils down to where 5 or more justices reside.  I'm betting (metaphorically) that it's Earth.

Best,

John

Professor John Q. Barrett
St. John's University School of Law
www.stjohns.edu/academics/graduate/law/faculty/Profiles/Barrett<http://www.stjohns.edu/academics/graduate/law/faculty/Profiles/Barrett>

________________________________
From: conlawprof-bounces at lists.ucla.edu [mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of Rick Duncan
Sent: Thursday, March 22, 2012 8:53 PM
To: conlawprof at lists.ucla.edu
Subject: Re: Understanding the ACA Arguments

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></mc/compose?to=krooseve at law.upenn.edu> wrote:

From: Kermit Roosevelt <krooseve at law.upenn.edu></mc/compose?to=krooseve at law.upenn.edu>
Subject: Re: Understanding the ACA Arguments
To: "Rick Duncan" <nebraskalawprof at yahoo.com></mc/compose?to=nebraskalawprof at yahoo.com>
Cc: "conlawprof at lists.ucla.edu"</mc/compose?to=conlawprof at lists.ucla.edu> <conlawprof at lists.ucla.edu></mc/compose?to=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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