In this piece,
Justice Elena Kagan is trumpeted as the second coming of Oliver Wendell Holmes on SCOTUS.
However, it strikes me that Reuters has not looked closely enough. Reuters zeroes in on this exchange as proof of the brilliance and tenacity of Justice Kagan. In this exchange with Paul D. Clement, a lawyer representing 26 states who have filed suit against Obamacare we see Kagan at her supposed best. In this exchange Clement vs. Kagan are debating whether the authority the federal government is assuming in Obama death care is coercive. Kagan thinks that it is not, because the federal government is giving states, in Kagan’s paralance, “a boatload of federal money for you to take and spend on poor people’s healthcare.” Clement counters that this boatload of federal money comes laden with coercive conditions, invoking the old, “he who takes the king’s coin is the king’s man” argument. Kagan then presents a hypothetical to Clement which leads to the exchange that Reuters finds brilliant,
JUSTICE KAGAN: Now, suppose I’m an employer, and I see somebody I really like, and I want to hire that person. And I say, I’m going to give you $10 million a year to come work for me. And the person says, well, I–you know, I’ve never been offered anywhere approaching $10 million a year. Of course, I’m going to say yes to that. Now we would both be agreed that that’s not coercive, right?
MR. CLEMENT: Well, I guess I would want to know where the money came from. And if the money came from–
JUSTICE KAGAN: Wow. Wow. I’m offering you $10 million a year to come work for me, and you are saying that this is anything but a great choice?
MR. CLEMENT: Sure, if I told you, actually, it came from my own bank account. And that’s what’s really going on here, in part.
1.) I’m not sure how this is brilliant since Kagan has sailed (keeping with her boat language) right past the fact that the Federal government has no money that it does not first confiscate from the citizenry. Kagan is creating a analogical scenario where someone is offered $10 million dollars a year of stolen money to be commissioned to do something that the prospective employer is not legally allowed to commission. The US Constitution does not allow the Federal Government to hire the States to taken confiscated tax dollars to run a death care program.
2.) Clements response was good but it could have been even better. He could have said,
“Thank you for your question Your Honor, however your analogy does not hold and is really an equivocation on what is being proposed here by the Obama Administration. What the Obama administration is proposing is to force, as contradictory as such a notion is, on the American citizenry a involuntary contract where they are forced to pay for something that they may not want. This is hardly parallel to the employee / employer potential relationship that you describe where the contract entered into has the voluntary character of all genuine contracts. You can not successfully analogize a voluntary contract of employee / employer with a involuntary coercive contract where the force of the State is binding the citizens.”
3.) Kagan’s analogy looks only at the side of the people being advantaged and so with her faulty analogy insists that there is nothing coercive in the arrangement. To look at the coercive side we might draw this similar analogy,
“Now, suppose I’m a Mafia thug, and I see somebody I really dislike, and I want to hurt that person. And I say, I’m going to take from you $10 million a year so somebody who has chosen to not work can come work for me. And the person says, well, I–you know, I’ve never had anyone offer to take that kind of money from me before. Of course, I’m going to say “no” to that. Now we would both be agreed that that’s coercive, right?”
If someone as dense as me, can see through the thickness of Kagan, I’m not sure why Reuters is arguing her brilliance.