In a decision with potentially large ramifications, New York Federal Judge LaShann DeArcy Hall won't dismiss a libel suit against "Shitty Media Men" creator Moira Donegan.
Explaining, the judge says it is possible that Donegan created the entry herself. The judge believes that Elliott should be able to explore whether the entry was fabricated. Accordingly, discovery proceeds, which will now put pressure on Google to respond to broad subpoena demands. The next motion stage could feature a high-stakes one about the reaches of CDA 230.
Economic Commands are Different from Political Commands or Taxes
He would be right, if that were my argument. But I don’t disagree in the least the Congress is permitted to regulate the health insurance industry. I think it should regulate that industry, that our Constitution permits it, and that Congress even has quite a bit of discretion about which regulations it may constitutionally adopt.
What I do disagree with is the claim that health insurance regulation may include a direct command by Congress to individuals to buy a product or service from private providers. This crosses a line that hasn’t been crossed before. Other examples of direct commands to individuals all stem from far more explicit provisions of the Constitution, as for example with the military draft or compliance with the census.
The latter two are also distinguishable from the command to buy health insurance in another way. Both military service and the census are necessary to the functioning of the government, not merely to particular economic goals. They are political commands, made necessary by the fact that we have a government of a particular type and wish to keep it.
Commands are different from prohibitions. They are different from taxes (yes, I’ll get some pushback on this one, but I do believe it). Commands set dangerous precedents, in ways that prohibitions do not. There are two reasons for this: First, paying a tax still leaves you at liberty to choose how you will earn the money to pay it; it also leaves you at liberty to take actions that avoid the tax entirely. (Hate paying cigarette taxes? Don’t smoke.) On the whole, taxes take only a smallish bit of liberty when compared to commands.
Second, there are plenty of restrictions on the government written into the Constitution, but none of them are written from the understanding that the government otherwise has the plenary power to command us directly. The Constitution doesn’t contain restrictions on the power to command citizens — because that’s not a power Congress was supposed to have at all. Once it gets that power, it will have that power without constitutional restriction.
Finally, if Congress is held to be competent to identify economic advantages and to deploy all citizens in pursuit of them, then our form of government will be neither the classical liberal one I favor nor the mercantilism that De Long’s post seems to favor.
As I’ve noted before, an individual mandate to buy a private product is actually more troubling to me on constitutional grounds than a single-payer system. Not that I’m untroubled by the latter, but the former breaks new ground in directing us to serve the good of particular corporations. It puzzles me that liberals aren’t troubled in the same way by such rank crony capitalism.