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Today In Bad Slippery Slope Arguments

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Megan McArdle apparently believes she has liberals who support broad federal powers dead to rights:

1) Can Congress enact a $50,000 tax on second term abortions?

2) Can Congress enact a $50,000 tax increase, which is then rebated to anyone who does not have an abortion?

3) If not, why not? I don’t want to hear any arguments about the social side: how necessary abortions are, how women would just have terrible back room abortions, how tragic this might be for women forced to carry a child to term. Nor do I want to hear any arguments that this doesn’t involve interstate commerce, as of course abortions are frequently purchased across state lines, while in many places, it is illegal to buy insurance from other states. Presuming that Congress is agreed that abortions are bad, and they want to discourage them, why shouldn’t they be able to use their taxing power to enact a ban that they could not enact more directly?

4) If yes, they can, how long do you think it will take before Republicans enact one?

As with most slippery slope arguments, this isn’t very convincing.   Indeed, it’s a particularly weak example:

  • This isn’t actually a hard question to answer.   Congress can’t do this because it would violate the Fifth Amendment.    Congress cannot use its taxation powers solely for the purpose of  abrogating a fundamental right — the policies described in #1 and #2 would be unconstitutional just as it would be unconstitutional for Congress to use its spending and taxation powers to abridge speech based on its content (even if it’s not clear that the purpose of the tax was to inhibit speech per se.)   In addition, given the entrenchment of “reverse incorporation,” I would also argue that such a policy would violate the 14th Amendment’s guarantee of equal protection to women.
  • At this point, McArdle might respond, “but what if Republicans appoint enough justices to overturn Roe v. Wade and hold that the 14th Amendment doesn’t prohibit gender discrimination?”   Well, yes, then in that case Congress would have the authority to ban abortion, whether directly or indirectly.    To which I would then respond, “your point being?”   Congress has the power to enact an innumerable number of policies I consider abhorrent.   That’s politics.    To deny Congress essential powers because it might do something stupid with them would be akin “to wish[ing for] the annihilation of air, which is essential to animal life, because it imparts to fire its destructive agency.”
  • If I were a conservative who liked to talk about “federalism,” I personally would avoid bringing up hypotheticals about abortion, because it’s one of the best examples of the eternal fact of American politics that nobody actually cares about federalism.
  • And as it happens, the recent ad hoc arguments about the unconstitutionality of the mandate are an equally excellent example.   Not only was this alleged affront to the Constitution a mainstream Republican position until 2009, many Republicans still believe that the federal government should use its authority to compel people to purchase retirement annuities from private companies.
  • On the last question, Republicans would not enact these hypothetical policies.   Abortion bans, historically, have been able to stay on the books because anti-choicers don’t have the clout to get them enforced in a way that would prevent affluent women from obtaining safe abortions in hospitals.    You’d have an easier time passing an outright national ban than a tax heavy enough to make abortion a near-impossibility for all but the wealthiest women.    And in some hypothetical future universe where such a policy could pass, the fact that some liberals argued that Congress didn’t have the authority to enact a mandate to purchase health insurance would do nothing to stop it from passing anyway.
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  • mark f

    I am opposed to taxes on mandatory abortions.

  • C.S.

    Indeed, it’s a particularly weak example. . .

    Well, yeah. I mean, you said it was Megan McArdle, so . . . duh.

  • wsn

    In other words, McArdle’s understanding of the law is on par with her understanding of anything else.

  • hells littlest angel

    Could Congress enact a law making my ass the Supreme Commander of Everything? I don’t want to hear any arguments about me being a complete idiot.

    • Bill Murray

      They could, the question is how much are you willing to pay to get this honor. Then whether or not Scalia will allow you to have this honor rather than his keeping it for himself.

      • The Fool

        I believe you mean Kennedy.

  • charles pierce

    5) I write for The Atlantic. Suck it, Howells.

    • Incontinentia Buttocks

      Given the current state of The Atlantic, we should be able to gain energy independence by harvesting the kilowatts generated by the finest minds of late 19th-century New England rolling in their graves.

      • Malaclypse

        Man, Edroso is so gonna kick your ass for that.

        • Incontinentia Buttocks

          Hah!

          I knew I was stealing from Edroso, but I didn’t know I was stealing from McMegan stealing from Edroso, let alone that he had gotten all up inside her appletini for it!

          • Halloween Jack

            “gotten all up inside her appletini” is a euphemism for something, isn’t it?

            • DocAmazing

              Really, don’t go there.

              • Bighank53

                I may never be able to look at an…appletini…in quite the same way ever again. God, my poor brain.

            • nanute

              Yes it is. But, I don’t think it’s a “good n’ applenti.”

          • dan

            gotten all up inside her appletini

            stealing this.

  • Malaclypse

    Can Congress make a rock so big that Congress cannot lift it? If we allow an expansive reading of the commerce clause, what will prevent Congress from drawing a triangle with more than 180 degrees?

    • Halloween Jack

      Does a dog have Congress nature?

      • mds

        Well, voting to pass tax cuts for the rich that were otherwise going to expire automatically is sorta like a dog returning to its vomit, so … Look, I’ll be honest with you: I was playing hooky when the class covered analogies.

    • c u n d gulag

      For Megans next great intellectual attempt, she’s going to try to figure out how many Sharon Angles can dance on the head of a pinhead.

      • gocart mozart

        c u n d gulag, please pick up your shiny new internet at the WILCO window. That is all.

    • a triangle with more than 180 degrees?

      aka a tri-corner-angle or a sharonangle in Nevada

  • howard

    the very same people who saw nothing wrong with multiple second ammendment violations during the bush administration now want to claim that health care is not interstate commerce. i do not understand the thought processes, insofar as there is a thought process to understand, which there probably is not.

    • Bighank53

      Brown people get pushed around by the government; they’re not allowed to do any pushing.

  • Joe

    I reckon this has something to do with the individual responsibility provision of the health care law. Back in the real world, that “tax” is about 1% of that and reasonably tied to an overall scheme. It isn’t just some thought experiment.

    The commerce hook btw is pretty weak. Much less so than regulating insurance. But, of course, as Scott shows, there ARE limits.

  • We already have a tax on abortions. That’s one less dependent to claim.

  • Pingback: The Mahablog » The McArdle Mystery()

  • wengler

    I’ve been ambivalent about this court case simply because requiring an individual mandate for private insurance was a silly route to go. Also because all of the appeals from all of these cases will just end up in the Supreme Court anyways where the corporations can have the final say on what is legal and what is not.

  • Brad Potts

    Its not a slippery slope argument. At no point did McArdle imply that the individual mandate would lead to a $50K tax on abortions.

    She is employing a rhetorical device in attempt to show that that particular interpretation of the commerce clause leads to absurd results.

    I have explained multiple times within comments that this is an example of a reductio ad absurdum and not a slippery slope, but the distinction still seems to elude.

    The point of her hypotheticals is to ask this question: Is there any personal behavior that does not fall under the scope of the Commerce Clause by your interpretation?

    It is important to consider this because if you cannot name a personal behavior that isn’t covered by the Commerce Clause, it seems that that interpretation flips the Constitution on its head: the constitution would no longer define the limits of congressional power but the limits of personal protections.

    When pressed to name things that congress wouldn’t be able to do, you have had to basically rely the 4th and 5th Amendments. Therefore, it seems by your interpretation of the commerce clause, congress is unlimited in its powers up until the point it violates other designated protections.

    And since it seems that the protections laid out by the fourth and fifth amendments basically get treated on a case-by-case basis dependent upon their supposed social good, I doubt that there is anything you could point to that would be any absolute legal protection provided by the constitution.

    • Paul Campos

      And since it seems that the protections laid out by the fourth and fifth amendments basically get treated on a case-by-case basis dependent upon their supposed social good, I doubt that there is anything you could point to that would be any absolute legal protection provided by the constitution.

      The idea of an absolute legal protection provided by the Constitution is an illusion not merely in practice, but even in theory. Legal documents are always subject to amendment, reinterpretation, and avoidance. Also all legal decision making is ultimately done on a case by case basis. If the anticipated results are bad enough a court isn’t going to enforce a legal rule.

      • Anonymous

        I don’t mean any ongoing absolute rights, I just mean that at no point in time would there be any policy that would be absolutely off-limits as far as the constitution is concerned.

        Basically the legal challenge would also be decided by the political debate.

    • bh

      I have explained multiple times within comments that this is an example of a reductio ad absurdum and not a slippery slope, but the distinction still seems to elude.

      Hey there, narcissist who’s imagining we’re following your career in blog comment sections… You can make a terrible argument as often as you like, but it won’t improve with the telling.

    • Scott Lemieux

      Its not a slippery slope argument. At no point did McArdle imply that the individual mandate would lead to a $50K tax on abortions.

      She is employing a rhetorical device in attempt to show that that particular interpretation of the commerce clause leads to absurd results.

      Read her argument all the way to point #4, please. Thanks!

      • Anonymous

        So I said something that was the exact opposite of the truth. God I hate fulfilling stereotypes.

        • Brad P.

          That was me, obviously.

    • Malaclypse

      When pressed to name things that congress wouldn’t be able to do, you have had to basically rely the 4th and 5th Amendments.

      Well, those, and the First, and the Second, and so on.


      I don’t mean any ongoing absolute rights, I just mean that at no point in time would there be any policy that would be absolutely off-limits as far as the constitution is concerned.

      Again, you are the only person who seems to think that “the Constitution” = “the commerce clause.” I do not understand this belief. do you believe that the commerce clause is the primary guardian of freedom of religion? If tomorrow Obama declares Sharia Law and Mandatory Abortion, do you think the primary challenge to those would be based on the commerce clause?

  • bh

    There are libertarian* arguments I find interesting, even though I rarely agree with them. But the “I’ve mathematically proved that you secretly agree with me” variety are just comtemptibly stupid.

    *yes, MM’s philosophy, if you call it that, is more sophist than libertarian. But she is working within a fairly common form of libertarian argumentation, even if, as with everything else she writes, she’s not doing it very well.

  • thebewilderness

    I would expect them to go the shorter route of snipping a few things out of the constitution and then declaring females property. Then they could tax their owners every time they were bought and sold. You remember that, don’tcha.

  • Anderson

    Orin Kerr at the Volokh blog, a conservtive who’s against the mandate but hasn’t lost his mind about it, has a good post up on “can the feds make me buy a GM car?”

  • I would support a 50K$ tax on disingenious hackery but sadly this too would be unconstitutional. I choose to believe that if the ‘Drafters’ could have reasonably foreseen the McMeghanization of our discourse, they would have made an exception.

  • Shorter McCardle: No fair using facts or logic to rebut me! Neener Neener!

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