Tyranny Of The Compassionate

A Federal judge in Michigan has found Obama's health insurance mandate to be constitutional (yes, that was the mandate Obama spent the whole campaign opposing).  AllahP includes this in his cogent discussion:

What he’s saying here, basically, is that we’re all either already or potentially engaged in health-care commerce because none of us will fail to seek essential medical services if they’re required and none of us will be denied essential services if we can’t pay. The supermarket will turn away a starving man if he has no money; not so the ER and people who are sick, so for all intents and purposes, we’ve all already opted in here.

The ER is legally proscribed from turning people away, which reflects the values of our society.  However, that sense of compassion has apparently morphed into compulsion - since we won't let people bleed out on the steps of the hospital, a judge has concluded that we can require them to buy insurance.  That is an interesting shift in favor of Obama's view of himself as his brother's keeper, with the constitutional right to impose his keeper-dom whether his brother wants it or not.  My sense of individual freedom and responsibility has now been trumped by Obama's determination to help me whether I want his help or not.  I can see the new license plates already - Live Free My Way Or Die.

I have managed to lose the link but another pundit made a good point.  The judge here is not merely requiring formal participation in the health care system; he is requiring participation according to a government-prescribed set of health benefits and services.

Big believers in alternative medicine can go hang.  And let me belabor this from the judge's opinion:

The health care market is unlike other markets. No one can guarantee his or her health, or ensure that he or she will never participate in the health care market.

The health care market is really that different?  How many of us can avoid participation in the market for food or shelter?  Is there any constitutional impediment, in this judge's view, to full government control over my diet, perhaps by way of food vouchers limiting my purchase of salt, alcohol and pizza?

And this is daft:

The plaintiffs have not opted out of the health care services market because, as living, breathing beings, who do not oppose medical services on religious grounds, they cannot opt out of this market.

Now hold on - the government prescribed insurance package includes mental health services and substance abuse counseling.  Now we are told that only people with a religious view about the efficacy of those services can decline them? 

Or let's stay with the judge's notion that only the godly are entitled to an alternative point of view.  Many, many people have a religious view about avoiding substance abuse - why must they pre-pay for that service?

THE BARE NECESSITIES: Since almost places ban public nudity, one might argue that everyone must participate in the clothing market; following the logic of the ruling on home grown wheat, even those who make their own clothes are impacting the market by their non-participation.

So by this judge's theory there should be no constitutional impediment to creating the Fashion Police to regulate our clothing choices.  Maybe we can be compelled to Buy American, or eschew polyester leisure suits.  This judge's theory could justify quite a view of unlimited government - Live Free and Properly Dressed, or Die.

 

Comments

[Danube of Thought]

Simply infuriating.

[Rob Crawford]

Uh, the more dangerous part was the government arguing -- and the "judge" agreeing -- that the commerce clause allows Congress to involve itself in every economic decision.

Name something that's not an economic decision.

[Danube of Thought]

Randy Barnett at has some further thoughts today. Highlight:

Fourth, and most important: Judge Steeh offers no limiting principle to the “economic decisions” theory. His acceptance of the government’s argument that the health insurance market is “unique” is window dressing. Allowing Congress to regulate all “economic decisions” in the country because Congress has a rational basis for thinking such mandates are essential to its regulation of interstate commerce cannot and will not be limited to the sort of public goods argument offered in support of this mandate. Given that his decision, on his own account, is expanding federal power beyond existing Supreme Court doctrine, was it not incumbent upon him to deal with the slippery slope issues raised by his newly-minted “economic decisions” doctrine?

[Danube of Thought]

Barnett is at Volokh, but for some reason I'm unable to link to it.

[hit and run]

TM:
The ER is legally proscribed from turning people away

Michelle worked diligently at the UC Med Center to get around that proscription,focusing her efforts primarily on poor,black people.

[NK]

"The tree of liberty must be refreshed from time to time with the blood of patriots and tyrants." Thomas Jefferson

"Extremeism in the defense of liberty is no vice, and moderation in the face of tyranny is no virtue." Barry Goldwater

It's about that time folks when a federal judge says there are NO limits on what our own government can do to us. Hell, according to this judge GWB should have cited the Commerce Clause as the basis for enhanced interrogation techniques.

[Charlie (Colorado)]

DoT, here's your link.

Are you using some kind of editing tol? What you have in the text is an image link, like "<img", not an anchor href "<a href="

[Wot de Hell?]

Suddenly privacy is passe.
=========

[boris]

Perfect! Mandate people like Cranick subscribe to fire coverage.

[clarice]

Mush headedness.

[PDinDetroit]

Well, it isn't surprising that a Judge from Detroit made this ruling. Just think about it - GovMo needs to sell cars, this ruling supports Government REQUIRING you to buy one from them.

I hope to God this ruling is vacated/set-aside as allowing Government to control our "Economic Decisions" instead of "Economic Activity" is tantamount to Complete Government Control over EVERY FACET of a person's life.

Freedom, only as WE the Government proscribe it.

[Rob Crawford]

PD -- I'm not real thrilled with the "Economic Activity" part, either.

[Melinda Romanoff]

OT-

B of A halts all foreclosures in ALL 50 states.

[Old Lurker]

"B of A halts all foreclosures in ALL 50 states."

This is not going to end well.

[Porchlight]

B of A halts all foreclosures in ALL 50 states.

Now go out and vote Dem, delinquent homeowners!

[Danube of Thought]

Chaco, I'm using Firefox with its text-editing toolbar. Never had a problem linking except with Volokh, where I tried and failed twice.

[Rob Crawford]

Actually, if the accusations of fraud in foreclosures were even 1% true, I'm glad they stopped.

[Melinda Romanoff]

Rob-

This is the canary that just flopped over in the coal mine you're working.

[Joe Cali]

Wells Fargo settles with states, to continue all foreclosures.

[Pagar]

"B of A halts all foreclosures in ALL 50 states."

Yet the issue has apparently not risen high enough to generate a complete JOM article.

I do understand those arguing for HR 3808 to be signed. Why would anyone one want to condone law breaking?

[Pagar]

Should read: I do NOT understand those arguing for HR 3808 to be signed.

[Pagar]

This has nothing to do with delinquent Homeowners. It has to do with the Rule of law.

[Rob Crawford]

Exactly, Pagar.

[Ignatz]

--It has to do with the Rule of law.--

If HR 3808 passed then wouldn't it be the rule of law?

[Melinda Romanoff]

Wells Fargo settles suits on deceptively marketed ARMs by companies it has acquired (WaMu).

Foreclosures not addressed, Joe, their last release on that (10/6) says our affadavits are perfect.

We'll see.

[Melinda Romanoff]

PNC declares 30 day halt in "the 23".

[DrJ]

Huh? Chase acquired WaMu, though Wells has been on a major acquisition spree over the last few years.

[Ignatz]

I think Melinda meant Wachovia, correct?

[DrJ]

Could be. Wells did acquire Wachovia.

[Melinda Romanoff]

Wacho, Wahmoo,

Whatever?!?

(Also, ooops.))

[Rob Crawford]

This is the canary that just flopped over in the coal mine you're working.

How, exactly?

Seriously -- what I see is a bank that sensed it was exposed over the "robosigner" controversies, has stopped.

They haven't stopped processing transactions, have they? They haven't stopped withdrawals, have they?

Yes, I know it's bad to let uncollected debt build up. Yes, I know it's bad to signal that delinquency on your mortgage has no cost.

But how is a pause fatal?

[Ignatz]

Here's Gretchen Morgenson's take on the mortgage mess.
I have yet to see an example of a homeowner who did not deserve foreclosure being foreclosed on, but we may see examples of folks who deserved foreclosing getting a house for free cause the banks can't trace the chain of title.
They obviously should have obeyed the law and done it right but it appears to me it will just let delinquent owenrs stay in their houses longer further clogging the market.
Hey, maybe if it's a big enough mess more people will build new houses and need more lumber and then log prices will go up. I can dream, right?

[matt]

all of this incompetence and confusion is seizing up the real estate market. That ill help the economy.

As to the ruling by Judge Steeh, it is on its face wrong. First he uses the Commerce Clause in its widest interpretation, but then he states that the health care business is unlike any other. This is a complete contradiction.

According to his expansion of the government's powers, they can now control economic decisions, not just economic activity. Welcome to Big Brother. So much for the whole idea of liberty.

[Melinda Romanoff]

Rob-

Denninger has been covering it and has been hammering his Congressional Rep for months on this.

He highlights his rep's letter and the unlimited liability of the banks and the securities they produced with no assigned mortgages. Who wrote the letter he's touting? His Represententative, Alan Grayson, who actually is the blind squirrel finding his lone nut, in this specific instance. He fully grasps the problem.

It's not the foreclosures. It's the fraudulent securities.

[Rob Crawford]

Sorry, I still don't get it. I can't even tell if there was an explanation there.

Maybe I'm just dense on this.

[Melinda Romanoff]

go to the link, it's billions.

[boris]

It seems like a variation on the toxic asset problem that "almost" brought down the economy in 08.

[Jane (sit on the couch or save your country)]

No worries - Obama announced this morning that his administration is doing everything humanly possible to spur on the private sector.

[Melinda Romanoff]

boris, this is the bigger, uglier older sister coming to the buffet.

[Jim Rhoads a/k/a vnjagvet]

Did he suggest his administration's resignation, Jane? Too bad our system doesn't allow a vote of no confidence.

[Ignatz]

Interesting article linking this bubble to the NASDAQ one and explaining the futility of asset inflation as a cure.
As a holder of commodities it might be nice for me but not others.

[Melinda Romanoff]

Rob-

In the rush to securitize mortgages into Mortgage-Backed Securities (MBS), the prospectus is printed and legal paperwork is drawn up to form the Trust that will become the security. As the trust is sold to investors in the opening period, mortgages are bought and individually reassigned to the trust. This must be completed within the 90 day "cooling off period (tech term, trust me on this)". If the assignments are not completed properly, and duly registered, they lose their IRS pass-through status, which allows for the separation of income and principle for tax purposes, making it 100% ordinary income. So you would pay tax on your own money, all over again, at current rates. That's the first, nitty, gritty part.

The second part is this. With the lack of proper assignment, the question naturally arises as to whether the trust is entitle to any income at all. You tell a pension manager that. And the liability of the selling institution goes up and up.

This is where the Rule Of Law had better take a front seat and watch just how Junior is working the road.

Think 1920's Florida, but this time it's all paper.

I hope this helps, and I gotta go.

[Ignatz]

And here is a story supporting Mel's point by noting that derivative risk is greater now than in 2008.

[glasater]

The article by Diana Olick could add some clarity to this foreclosure mess:

I asked some mortgage mavens and got the following responses:

Josh Rosner, Graham-Fisher: With REO sales being a large part of supply we would see home prices artificially and unsustainably rise, foreclosure volumes paint a false picture of stability and investors in MBS would be further harmed as their losses grow. Once the moratorium ended prices would fall and foreclosures would skyrocket. But, it would paint a prettier picture than reality heading into mid-term elections.

I sure hope this isn't another "October Surprise"....

[daveinboca]

Soft Despotism turns into Bureaucratic Authoritarianism, deja vu all over again. Hopefully, the 20 states objecting in FL will have enough "standing" to get a Supreme Court ruling on this ridiculous extension of the "commerce clause."

[Melinda Romanoff]

glasater-

Do NOT listen to Diana Olck. She is a waste of time.

As far as October Surprises, this why the Dems are trying to stay in front of this. I don't see the GOP paintbrush in their hands yet, but you and I both know its coming.

[Cenerentola.]

Ah, ya mean the slipper didn't fit but the Prince married the big ugly stepsister anyway, right melinda?
==========

[Melinda Romanoff]

Shotguns for everyone, kim!

[bandit]

You're saying 'found' like the judge actually looked - he just declaed it to be constitutional.

[bandit]

declared

[glasater]

Mel--
Well it isn't as the libs are known for their honesty.

Chris Whalen was just on Fast Money saying the banks could not handle anymore foreclosures, therefore....

[Melinda Romanoff]

When they start talking about questiong MBS quality, duck.

[Ignatz]

And finally here's a story on ag prices surging. Inflation anyone? Go lumber!

BTW Mel, I've found Olick to be pretty sober minded on RE. Not sure how knowlegable she is but she has consistently shot down the Pollyannas talking about a bottom in the market for the last three+ years, at least when I've heard her.

[jimmyk]

They obviously should have obeyed the law and done it right but it appears to me it will just let delinquent owenrs stay in their houses longer further clogging the market.

I've been wondering about this, whether it's all a political ploy to stop foreclosures by letting the lawyers demand that every "i" be dotted. Not to make light of the requirements of the law, but laws and contracts cannot conceive of every contingency, and if we require so much precision and forget about basic common sense and trust, commerce and transactions will grind to a halt.

[lyle]

Another, perhaps bigger, issue is title insurance. Title companies are ceasing issuance because titles can't be cleared for buyers. Think about that for a second.

[Rob Crawford]

Think 1920's Florida, but this time it's all paper.

Still not getting it.

Sorry; I'll just have to be content with not getting it.

[Rob Crawford]

Not to make light of the requirements of the law, but laws and contracts cannot conceive of every contingency, and if we require so much precision and forget about basic common sense and trust, commerce and transactions will grind to a halt.

But if you get twelve people who can prove they had no mortgage but still got foreclosed, then everything we want to do to judges who think the commerce clause is license for tyranny WILL be done to bankers who apparently think a few signatures and a high-paid lawyer lets them steal.

[glasater]

And finally here's a story on ag prices surging. Inflation anyone? Go lumber!

And wheat and corn Ignatz! Where's Pofarmer?

As Rick Santelli says--the Fed can't print corn...

[bgates]

Do NOT listen to Diana Olck. She is a waste of time.

You can't pronounce a person to be completely useless 39 minutes after pointing to something useful Alan Grayson has done.

[Pagar]

"I have yet to see an example of a homeowner who did not deserve foreclosure being foreclosed on"
Example 1- No Mortgage- Bank Forecloses.

Example 2-BAC forecloses on house couple paid cash for..

There is nothing anyone can do to prevent Example 2 from happening to them as long as they live in countries unwilling to enforce the rule of law.

I do not believe that people who do not make their payments are entitled to have the house for free. But I also do not believe that banks are entitled to have a house for free because some paper processor did the paper work incorrectly.

[clarice]

I have no figures. Just a hunch. I suspect the number of wrongfully carried out foreclosures is a drop in the bucket compared to the free riders. Why not pass a law making those who supplied false documents or inaccurate ones liable for triple damages and let the shake out continue?

[PDinDetroit]

Why not pass a law making those who supplied false documents or inaccurate ones liable for triple damages and let the shake DOWN continue?

FIFY

[Danube of Thought]

I still don't see how any borrowers were injured by any of this conduct. That doesn't mean it hasn't created a mess that looks like it will get a lot messier.

[PDinDetroit]

Sorry!!!

[boris]

Italiacto! (IE)

[jimmyk]

There will always be mistakes. Both of the cases in Pagar's post have been or are being remedied the way they should be. My credit card bill sometimes has mistakes. That isn't the issue. Here we're talking about something more systematic, but more technical. The owner has genuinely defaulted on a mortgage, but not all the paperwork was done properly on the lender side.

My sense is that this has always been the case--if you look hard enough at every foreclosure there will technical problems in the paperwork. So do we make the entire industry grind to a halt over this?

[Old Lurker]

Ditto that, Jimmy. I am certaim a jury will make these two innocent bystanders quite wealthy for the mistakes of these two banks and their agents. If they hire Clarice, they will get rich and avoid the trial too.

Our system already deals with stupid mistakes.

[Ignatz]

--Another, perhaps bigger, issue is title insurance. Title companies are ceasing issuance because titles can't be cleared for buyers. Think about that for a second.--

I once listened to a judge say in open court that title insurance isn't worth the paper it's printed on.
If you look closely at the exclusions and exemptions that are contained in the average title insurance policy you will see what he means. The one time I invoked my title insurance because of a mistake the title company made they hired an attorney to SUE ME! I won but the experience was an eye opener.
As far as I'm concerned it's one of the bigger scams going.

[clarice]

I never once went to a property settlement my own or others where there wasn't at leasat one error made by some paper handler along the way.Not one. As the mandated forms increase, I expect the errors do, too.

[Melinda Romanoff]

bgates-

I should have couched it better, making Grayson out to be a drooling nutcase, but I went with the blind squirrel metaphor, because he acyually, jaw-droppingly, has this one right.

And I have no idea how he did.

Anyway, the link was to Carl Denninger's site anyway.

If you don't like that, I have a worse one, Janet Tavakoli, Structured Credit products genius, talks to not-so-geniusey Ezra Klein.

More later.

[Paul Krugman]

What's this "Rule of law" you speak of?

[Melinda Romanoff]

Paul-

Sorry, this is the wrong room. The fresh roll of PhDs and grants you're looking for is in the top cupboard to the left, in the room behind you.

And close the door behind you.

Don't forget to turn on the fan!

[glasater]

As far as I'm concerned it's one of the bigger scams going.

Title insurance that is.... Could not agree more Ignatz. It truly is a license to steal.

[narciso]

Well she's speaking to a fraud, about frau, but it was still a valiant effort

[lyle]

I completely agree title insurance is a scam. Just try clearing title without it.

[Melinda Romanoff]

That pocket veto of HR 3808 isn't quite what it seems, apparently. The Senate is still in session (pro forma) and unless he vetoes it outright, it becomes law on Tuesday.

[Pagar]

Example 3 Could happen to any American living in a house or apartment in America .

That's what I can't understand - only a couple of us seem to feel that it is an unacceptable breakdown of the law.

Example 4 - Will there be more? Absolutely--stay tuned".

[narciso]

Nothing is what it seems, I've been learning
that lesson since the end of 2001, if not earlier. There is no standard by which they
willingly abide. "It's Chinatown" is increasingly apt in any number of fields

[Pagar]

I doubt if he will veto it outright. You can mark on your calendar, the day that bill becomes law is the date Anglo-Saxon law ends in America.

[Danube of Thought]

CNN poll has GOP up 52-47 on the generic ballot; Obama preference over Bush down to 47-45. It's all here.

[jimmyk]

Pagar, as I understand it, the examples you cite have nothing to do with the whole robosigning mess. They are isolated mistakes because some clerk punched in an incorrect address somewhere into a computer. It unfortunately happens now and then. I once reported my car stolen because it had been towed but the cop put the wrong license plate into the system, so they had no record of it. I was without a car for two weeks until someone figured out what happened. (To make amends they waived the towing charge and the original violation.)

What the robosigning mess relates to is thousands of people who have genuinely defaulted, but there was sloppy paperwork in reassigning mortgages to different creditors. Completely different except for the sloppiness.

[glasater]

Not much will be "clearing" for a time it appears...in some areas.

[Ignatz]

Here is an overview of HR 3808. Apparently came to light as a problem back in 06 when testimony was taken on it.
I'm having a hard time seeing in it the end of Western Civilization. It requires courts to recognize out of state notarizations that were legitimate and were connected to interstate commerce.
Daliy Kos is going crackers over it, not sure why I should.

[Ignatz]

BTW, was introduced in Oct 09.

[Pagar]

"It requires courts to recognize out of state notarizations that were legitimate"

[Melinda Romanoff]

Ig-

It is only one page.

The actual bill is only one page.

And because it was sponsored(originated) in the House by a GOPer, this becomes the October Surprise hammer.

[Danube of Thought]

I saw the author of the bill last night he had first introduced it in 2005. I see no problem at all with the merits of the bill.

[Melinda Romanoff]

DoT-

Isn't the weak leak where a court recognizes a MERS stamp and makes it OK, even though there's no proof of actual assignage?

Just trying to find the lever they would use...

[Melinda Romanoff]

leak = link (sorry)

[Ignatz]

--And because it was sponsored(originated) in the House by a GOPer, this becomes the October Surprise hammer.--

Mel,
It passed by unanimous consent so if it's supposed to be a hammer it would be one of those little plastic ones I used to use when I was about five.

[Melinda Romanoff]

all depends on the spin.

They haven't told the truth, so why expect them to not apply a little leverage to the facts.

Just smells right, especially the pocket veto route.

[Ignatz]

Here's the WH statement on it which sounds pretty bland and non-spun so far.
We'll see.

[Melinda Romanoff]

Formally dead, returned to House clerk around 5 EDT, Obama clears air on pocket veto.

Still doesn't address the Bigger Problem.

[Danube of Thought]

I don't follow you, Mel. As I understand, all it provides is that each state accept notarizations from other states.

[Slip the juice to me Bruce.]

Regulation, regulation, nevah, nevah, nevah gonna drink again.
==========

[MarkO]

Although sparingly used, it is possible to make a declaration under penalty of perjury in all the Federal Courts. Could that replace a notary?
My personal experience with notaries does not give me much comfort. Fraud is rampant in state and I can't really see how recognition of a notary from state to state would increase the fraud. I still find it odd that lawyers can't practice in every state. It must be a guild thing. Maybe a guilty thing.

[Danube of Thought]

I've always understood the state bar associations to be guilds, and the bar exams to be part and parcel of a conspiracy in restraint of trade.

In CA, by statute declarations under penalty of perjury are sufficient in lieu of notarized affidavits; this was done over thirty years ago.

Every time I have to whip out $10 or $20 for five minutes work by a notary my BP goes up a bit.

[Danube of Thought]

(That CA statute applies to court filings--it doesn't do away with the notary requirement when private parties require it.)

[Pagar]

"The former subprime lender CEO Former subprime lender CEO still refused this to consider this a problem: “Oh, Congress will pass a law.”

Of course, Congress did pass a law to give the thugs exactly what they wanted: and few could explain why they thought there was any difference between the Congress of Venezuala doing what the thugs wanted and the Congress of the US doing the same thing.

Trying working your way out of this Fubar.

"Suntrust was apparently lying to the court about their ownership of the note that they could not find."

"The true identity of the owner of the note remains secret. The whereabouts of the note are still unknown. Suntrust continues to press forward with the foreclosure although they are not the owner of the note, as they repeatedly represented to the court, and no one knows where the note is. The person with the note has the right to collect. It is probable that the note was sold off in a pool of securities so there could be thousands of owners of pieces of the note. But this information has been hidden from the owners, and the court system.

This is probably why a modification never happened that would have allowed this family to stay in their home. It appears that Suntrust has not complied with the law. Suntrust appears to have lied to the court. A judge will probably still sign off on the foreclosure despite all of this."

Read that again "A judge will probably still sign off on the the foreclosure despite all of this."

The rule of law has ended in American courts.

[Ignatz]

--I've always understood the state bar associations to be guilds, and the bar exams to be part and parcel of a conspiracy in restraint of trade.--

Having watched first hand some of the stuttering imbeciles plying their trade in CA's courts, many lawyers are quite fortunate there is some type of hurdle limiting competition for their services.