Saturday February 19th 2011
Re: “recent antipathy directed at scientists, academics, and experts...”
Part of the problem is that many academics and experts have oversold themselves. Worse, they have pushed policy assessments that are not justified by their research. Instead of clearly delineating where their science ends and their politically-correct opinion begins, they have willfully obfuscated the two.
Prison sentencing, welfare reform, etc.
Some of what you say could be true; at the same time, Americans are logically wary of a decades-old seam of intellectual dishonesty in academia.
Check out the link posted above by ToGetRichIsGlorious.
Krugman is often entertaining, but often intellectually dishonest. Don't join him with unsupported claims about stealing food from babies.
Liberals have loudly and repeatedly accused Judge Vinson of bad faith. They’ve accused everyone supporting the legal challenge to ObamaCare of bad faith. Has the worm turned?
"Buy[ing] health insurance across state lines,which would clearly place health insurance in the category of "interstate commerce". That ought to give the federal government all the regulatory powers the states currently have to regulate health insurance." M.S.
First, no one is legally challenging the federal government's authority to regulate health insurance via Commerce Clause. (That is a side belief by a group of Americans that would only appeal to Justice Thomas.) This authority is granted even without your premise.
Second, your conclusion is wrong. Regulatory powers via Commerce Clause would never give the federal government the same powers as the states. The states have police powers the federal government lack. There is not a perfect overlap.
Was basically agreeing with you. Increasing NGLs relieve some price pressure from non-energy demand for petroleum, not replace it all. Not enough relief, of course. Didn't know if you were aware of the production trends of NGLs, so was mentioning it.
Re: NG, I guess you're saying process is so expensive to convert that, before you got to petroleum trading at such a high premium to NG to justify conversion, petroleum would be so expensive that we wouldn't use it for energy? Maybe you're right, I don't know enough. I wonder if container ships or airlines can still bake a fairly high petroleum cost into their products. Someone was mentioning personal transportation w/wealthy in liquid fuel cars, masses in electric cars. Maybe some poor would still use expensive liquid fuel in scooters.
Misspoke on Asian refiners, plus second-hand so I shouldn't have said anything. What I've heard isn't they use NG, they use longer molecules that are easier for them to receive than the short, gassier ones. Even if they do, swapping wouldn't help overall, wouldn't free up source of energy. It would just be squeezing one end of a balloon. My bad.
But I'm not sure some energy users wouldn't compete with petrochemicals to the bitter-end of the world's crude oil supply.
"You get a fair bit of this sort of no-nonsense environmentalism among European businessmen."
Maybe. You also get a fair bit of no-nonsense energy policy among American businessmen.
Much of the "no-nonsense" environmentalism you see among certain greenish business execs reflects admirable "no-nonsense" personal habits and attitudes that they bring to bear on most anything they do. They are executing their goals effectively. Unfortunately, some of their green goals are based on insensible underlying assumptions.
I say that despite greatly caring about our natural world.
We can substitute natural gas for petroleum in much plastic/product use. Plus there are the increasing NGLs associated with increasing production of natural gas. Also, a portion of crude oil feedstocks for petrochemicals comes from the naptha distillates, which aren't totally important for gasoline (some widecut gasoline).
For example, many Asian petrochemical makers have historically preferred petroleum as a feedstock because of shipping ease rather than a technical preference over natural gas. They might convert (or be replaced).
Ultimately, though, we are likely to face many pricing pressures in energy, as you say.
("I think it's very worth noting that sooner or later using petroleum for energy will be right out. People don't realize the extent to which petroleum provides the feedstock for so much of our consumer products and agriculture....")
In the immediate wake of Obamacare’s passage, constitutional scholars from academia opined the law was “obviously” legit. I think the general public has a sense the pronouncements of these literati are steeped in discerning objectivity. Whereas the rulings of Supreme Court justices are driven by partisan biases. Keeping in mind Barack Obama was, literally, a constitutional scholar, might better guide how much faith to put in the neutrality of “top legal theorists.”
Perhaps we should aim these “Attitudinal Models” at legal scholars, rather than judges, to determine how much of what they say to the news media is simply driven by personal biases. Or, more broadly, how much of everything they teach their law students is driven by personal biases. Or, even more broadly, how much of everything all university professors teach their entire student-bodies is driven by personal biases.
Opportunities seem endless. Perhaps “Attitudinal Models” can show us how many arguments by academics for ever increasing “investments” in higher-education are driven by personal biases, rather than objective analysis. Any such insight into the cause of our ballooning “education bubble” might provide partial payback on our funding of social-science departments that build models.
Playing the parlor game that the decision is all politics:
If Kennedy (and Scalia) holds right, a sweeping Vinson-type ruling is a far smaller hop than many observers seem to realize.
Kagan could roll to give Roberts a bipartisan 6-3 majority which narrowly rejects the individual mandate but generally upholds ObamaCare, if a 5-4 total smackdown is otherwise looming.
A couple of caveats to attitudinal models are noted in the post. Another caveat is to the extent a constitutional (or legal) philosophy is incorporated into a political party’s philosophy, an empirical model can’t distinguish judicial voting motivated by “partisan” politics versus “noble” legal principles.
In one very simplified sense: If there are two schools of constitutional philosophy, and the two are (to an extent) separately associated with two dominant parties, and young lawyers’ legal philosophies sway young lawyers to associate with one party or the other, and politicians from the one party appoint judges from their affiliated pool of lawyers…. Are the resulting judges basing decisions on their politics or their constitutional philosophies?
Replace party affiliation/appointment with conservatism and liberalism, or whatever, in your model and the generic problem still holds.
This caveat doesn’t knock the predictive value of the models. Some well-constructed ones could prove very accurate. The caveat knocks some of the cynical interpretations about the meaning of the models; that they “prove” judges devolve into craven politicians whenever they aren’t burdened by well-established, formulaic legal doctrine. (Though some cynicism is warranted.)
When W.W. says attitudinal model judicial decision-making “is the theory that the personal attitudes of judges—their beliefs, sympathies, commitments, partisan leanings, etc—more than any other factor determine how they will come down on cases,” don’t forget “personal attitudes” includes constitutional & legal philosophies along with partisan leanings.
"Your analogy with toucans and golden palaces simply does not work."
The irony is MS attacks Judge Vinson's use of hyperbolic analogy with... a hyperbolic analogy.
To use MS' example of income taxes: Judge Vinson's warnings are equivalent to a 16th Amendment opponent saying Congress might enact marginal taxes of 80% someday. Or something more like that. Not the 98% of "all" taxes that MS postulates.
With 98% taxes and toucans, MS has greatly exaggerated Vinson’s use of exaggeration.
Why did MS use this hyperbole? To more effectively make a point. (As Doug Pascover confirms above).
Why did Judge Vinson use hyperbole?
Pot, meet kettle.
rewt66, I agree with your analysis.
If there is any confusion, my logical fallacies were criticizing MS' reasoning.
"In particular, if the Constitution gives the federal government the right to order me to buy broccoli, then we don't have a limited government in any meaningful sense." Exactly right.
“I get very irritated by arguments of the form ‘If the government had the power to do apparently reasonable thing x, it could do crazy thing y.’”
A reductio ad absurdum is not intrinsically a logical fallacy. MS does not claim such, though a number of comments here say otherwise on his behalf. He does claim Judge Vinson’s reductio analogies are not helpful, which is a lesser charge.
But here is a logical fallacy. “Constitutional law A results in outcome X. Law B also results in outcome X. Hence, law B is constitutional.”
Here is a second logical fallacy. “Law A results in economic outcome X. Law B also results in economic outcome X. Hence, non-economic outcomes must be Y for either law A or B. Any difference between Ya and Yb is trivial.”
MS: “To say that it's unconstitutional for Congress to cut out the intermediary step and simply require you to buy the health insurance yourself, while reimbursing you if you don't have enough money, is a pointless semantic exercise.”
The economic outcomes might prove similar. The political outcomes, however, are drastically different.
Applying the “rule of law” (here, the supreme law of the land) can be frustrating, but is not pointless. Your position strikes me as cavalier.
MS: “Uh...how? I haven't seen anyone even try to contest the point that turning the buyer mandate into a refundable tax credit renders this entire argument moot.”
Please clarify what you mean, MS.
Do you mean people who view “individual mandate” solution as unconstitutional seem to agree with you that “refundable tax credit” solution is constitutional? I agree with that.
Or do you mean that if “refundable tax credit” solution is constitutional, “individual mandate” solution is constitutional also? I don’t agree with that.
@ Alfred Lord Tennyson,
"It's not about trust. It's about checks and balances. The Constitution allows all sorts of stupid thing, but there are checks to prevent them..."
No offense, but you (and MS) just don't get it. Limited, enumerated powers IS one of the checks & balances. One of the checks is under threat. But we shouldn't worry because... the constitution has checks & balances?
That we rely on commonsense restraint in some places (to protect against a 98% tax rate, say) has never meant we rely upon it in all places.
The purpose of Judge Vinson’s “reductio ad absurdum” was not to posit true concerns about broccoli mandates, but as a device to demonstrate there would be no legal limits to Congress’ power. If the Commerce Clause allows the regulation of inactivity, a fundamental check - by specific, enumerated power - would cease to exist. To show there would be no institutional boundary, Vinson discusses broccoli.
Commonsense and majority democracy would be the only limits to Commerce Clause powers. MS is comfortable with that, and consoles us. But it is a sea change for a constitutional republic.
MS does not get what the legal (or philosophical) argument is primarily about. He thinks it is about whether the government would mandate broccoli and other extremist, absurdum things, even if they could (they wouldn't). No, MS. The legal argument is primarily about maintaining the concept and actuality of limited, constitutional government.
W.W., first your post is a bizarre attempt to suck originalism into the maw of a living constitution. That enthusiasm for originalism waxes and wanes doesn't make it an equivalent.
Second, on the Volokh blog Kenneth Anderson already briefly yet forcefully rebutted Kerr's first argument. (You link to Kerr's followup).
Vinson, a "mere" District Court judge, isn't breaking Supreme Court precedents / stare decisis, as Kerr claims. Vinson is arguing THERE IS NO PRECEDENT for the individual mandate.
Reductio. Evil spell-checker.
Arguments that Judge Vinson tortures logic through the use of “reduction ad absurdum” are especially amusing given how supporters of the individual mandate have conjured inactivity into activity.
Additionally, I doubt most observers expect the government to ever institute a broccoli mandate. Instead, Vinson's argument highlights the danger of fewer legal constraints on Congress. It could and would pass more infringements of our liberty equal to or greater than the individual mandate, though (dependent on commonsense) short of compelled broccoli.
In other words, attacks on Vinson’s use of “reduction ad absurdum” to clarify the debate are, in fact, their own type of absurdum.
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