The Alice in Wonderland Defense

WordsMeanThingsby Jerry Richardson11/8/14
Words need to mean something; and we have reached a critical time in US legal history that requires words to mean something if our freedoms are to survive.

If charlatans and lawyers—sorry for the redundancy—can simple assign whatever meaning to written words are convenient for their personal ideology, then our liberties are gone, maybe irretrievably.

What has triggered this discourse?

The PPACA, Patient Protection and Affordable Care Act (Obamacare) is now scheduled for a return trip to the Supreme Court.

And why are we having this rerun?

Because the rogue Obama IRS has been illegally reading their own interpretation into the Obamacare law as it is actually written:

The survival of Obamacare depends on the ability of government bureaucrats to dole out tax credits and subsidies, but the law stipulates that all such assistance must be dispensed via exchanges established by the state. Likewise, the law’s employer mandates can only be imposed by state-created exchanges. Oddly enough, however, PPACA doesn’t actually require states to set up exchanges. And, much to the surprise and chagrin of the Obama administration, 34 states declined to do so. This forced the federal government to set up exchanges in those states and also spawned the legally dubious IRS edict.
If Words Mean Anything Obamacare is in Real Trouble

So, not surprisingly, the Obama IRS simply decided in their bureaucratic omnipotence that they could simply declare that an “Exchange established by a State” is legally equivalent to an “Exchange established by the Federal Government.”

This entire charade reminds one of a famous episode in Lewis Carrol’s Alice in Wonderland, slightly amended to fit current situation:

‘When I use a word,’ the Obama IRS said, in a rather scornful tone, ‘it means just what I choose it to mean, neither more nor less.’

‘The question is,’ said concerned Americans, ‘whether you can make words mean so many different things.’

‘The question is,’ said the Obama IRS, ‘which is to be master – that’s all.’

And of course, Obama has long decided that he and the IRS are to be our masters.

So in the Obamacare law as written, the Obama IRS is trying to use the Alice in Wonderland Defense: Words mean just what the Obama IRS chooses them to mean.

Fortunately in a three-judge panel-decision that ruled against the IRS and the Obama Administration, Judge Ronald White of the U.S. District Court for the Eastern District of Oklahoma, rebuked the Alice in Wonderland Defense with the words: “[T]he government’s interpretation… leads us down a path toward Alice’s Wonderland, where up is down and down is up, and words mean anything.”

The conniving Obama IRS lawyers are trying to change, in broad daylight, the simple literal meaning of words that have been written into a law.  They are trying to make the terms “Exchange established by the State” somehow mean “Exchange established by the federal government.”

There is an extremely well written argument in Judge Ronald A. White’s ruling against this twisted logic and against the IRS:

Under 42 U. S. C. §18024(d), “State” cannot mean the federal government. This definition is dispositive when combined with the interpretive hurdle presented by the phrase “established by.”

In other words, the “legal fiction” reading does not appear to comport with normal English usage, as Professor Richard Epstein describes:

“These long and learned opinions should not obscure the fact that at the root of the case is a simple question: Do the words an “exchange established by a State” cover an exchange that is established by the federal government “on behalf of a state”?  To the unpracticed eye, the two propositions are not synonyms, but opposites. When I do something on behalf of myself, it is quite a different thing from someone else doing it on my behalf.  The first case involves self-control. The second involves a change of actors. It is not, moreover, that the federal government establishes the exchange on behalf of a state that has authorized the action, under which case normal principles of agency law would apply. Quite the opposite: the federal government decides to act because the state has refused to put the program into place. It is hard to see, as a textual matter, why the two situations should be regarded as identical when the political forces at work in them are so different.”
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The court holds that the IRS Rule is arbitrary, capricious, an abuse of discretion or otherwise not in accordance with law, pursuant to 5 U. S .C . §706(2)(A) , in excess of statutory jurisdiction, authority, or limitations, or short of statutory right, pursuant to 5 U. S. C. §706(2)(C) , or otherwise is an invalid implementation of the A C A , and is hereby vacated. The court’s order of vacatur is stayed, however, pending resolution of any appeal from this order.
Understanding the Obamacare Subsidy Rulings
Extract from Ruling, Honorable Ronald A. White

This slippery disregard for the meaning of words goes back a very long way.  In the Bible it goes all the way to the Garden of Eden when Satan tried to change the meaning of God’s words with his own, when “The serpent said to the woman, ‘You surely will not die’!  —Genesis 3:4 NASB

In more recent philosophical history, word-spinning goes back to William Occam (sometimes Ockham) who lived and wrote in the 13-14 Century AD.  Most people are familiar with Occam because of the so-called Occam’s razor principle. Roughly the principle states that among competing hypothesis, the principle with the fewest assumptions should be selected.

What many people are not familiar with is that William Occam was the father of a philosophical notion called nominalism.  Moreover it does not seem to be well-known that nominalism is a serious threat to truth.

Why?

Here an extract from what conservative author Richard Weaver has to say about nominalism:

…I turn to William of Occam as the best representative of a change which came over man’s conception of reality at his historic juncture.  It was William of Occam who propounded the fateful doctrine of nominalism, which denies that universals have a real existence.  His triumph tended to leave universal terms mere names serving our convenience.
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The practical result of nominalist philosophy is to banish the reality which is perceived by the intellect and to posit as reality that which is perceived by the senses.
Richard M. Weaver, Ideas Have Consequences, pp.2-3.

Nominalism is the claim that no real essences (universals) exist; only names (hence nominalism).  Let me illustrate:

If I point into a pasture and say “there is a horse”; the word “horse” has a meaning, has an essence—as far as most realists are concerned. If I suddenly decide that words are just names (with no essential meaning) then I can suddenly point to the horse and say “cow.”  Why not?  Words are just names (labels); no essence is involved. In other words, from “horse” to “cow” nothing is involved for a nominalist except a change of labels.  Don’t bother about the utter confusion of communication that will result from such whimsical change of terms.  If someone prefers to be considered a female instead of a male, no problem, gender is only a label.  We must not have pesky essences.

If there is no real essence (meaning) attached-to or tied to a name (a word) then why can’t someone just use a word to “mean” whatever they want?  Voila! Nominalism.

We are seeing that very approach used by the Obama IRS today.

The fruit of nominalism has come to full fruition in our post-modern world.  The end game of nominalism is that truth is what any individual chooses to make it.  Truth in the academic and political word is today encapsulated in “narratives” and “metanarratives.”

If you have been watching the riotous events that have transpired at Ferguson, MO; you have witnessed how easy it is for the modern media to invent and promulgate a “narrative”; when the label “gentle giant” is applied to a thuggish ruffian instead of someone who has the essence normally associated with “gentle” you create a false “wonderland” narrative.

In a world of stability and truth, words (names) have to mean something.  That something is their essence, and if we can simply change word-meanings on a whim then what happens to truth?  It is of course gone; it becomes post-modern: There is no such thing as truth—no essences—just names, nominalism.

Realize that this return of Obamacare to the Supreme Court does not involve just your typical ad nauseam case of an attempted legal hat-trick; this is an out-and-out attempt, by the Obama IRS, to change the clear legal and English meaning of words in order to establish their own desired meaning of a clearly written phrase in an existing law.

And you thought the IRS cover-up and lying about the Lois Lerner emails was bad?

© 2014, Jerry Richardson • (1911 views)

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13 Responses to The Alice in Wonderland Defense

  1. NAHALKIDES NAHALKIDES says:

    Well, let’s hope Chief Justice Roberts doesn’t strain credibility to save Obama’s bacon a second time. The idea that if a law may be interpreted in such a way that it is Constitutional then it should be so interpreted, taken to ridiculous extremes, is what caused him to make his monumental blunder last time (effectively negating the very idea of judicial review). Apart from the necessity for clear language in law as Jerry presented it, there is no justification for interpreting an exchange established by the Feds as if it were established by a state, when we know that the Democrats deliberately wrote the law with that language to browbeat the states into establishing exchanges, something Congress did not have the power to require by law. They thought the states would cave; let Obamacare wither on the vine because they were wrong.

    Note: for those who haven’t read the entire law (almost no one has), the significance of this question is that if Obama loses this case, the Feds can’t offer subsidies (income transfers from the taxpayer to those who can’t or won’t buy insurance) in those states that didn’t set up their own exchanges. My interpretation is that the IRS can’t impose tax penalties in those states either, meaning they have no way to enforce the hated Individual Mandate (hooray!). And without the mandate, the whole thing will fall to pieces. That’s why this ruling is so important.

  2. Brad Nelson Brad Nelson says:

    Right now I’m reading “The Naked Communist,” and W. Cleon Skousen makes many fundamental points about Communism (what we would today call “the Left” or “Progressives”).

    As Jerry notes, human deceit goes back a very long way. Communism and Leftism have no monopoly on manipulating people and language to suit their ends. But one should also make special note that, as Dennis Prager says, “Truth is not a left wing value.” It’s not just that the Left sometimes fudges the truth to forward its cause. It’s that it simply doesn’t think of truth in the same way that you or I do.

    Skousen writes:

    However, before striking out on such a bold course, the founders of Communism realized they would have to develop a whole new approach to morals and ethics for their followers. Lenin summarized it as follows: “We say that our morality is wholly subordinated to the interests of the class struggle of the proletariat.”10 In other words, whatever tends to bring about the Communist concept of material betterment is morally good, and whatever does not is morally bad. This concept is simply intended to say that “the end justifies the means.” It is not wrong to cheat, lie, violate oaths or even destroy human life if it is for a good cause. This code of no morals accounts for the amoral behavior on the part of Communists which is frequently incomprehensible to non-Communists.

    For conservatives (or, really, for any person not mentally insane), two plus two equals four and will always equal four. And, for conservatives, such things as the integrity of truth matter greatly because we know that the minute truth doesn’t matter, we are circling the drain in a society that has no grounding. And anarchy sucks (although Libertarians remain fatally clueless regarding this). When man is let loose from reason and all bounds of conduct, you can get the result that godless Communism gave us last century: over 100 million murdered.

    For a conservative (or any person who is not insane), facts matters. Our ideology must change to match the facts or else we hold insane views, for indeed it is insanity that spews forth from any cause or ideology that is at war with the basic facts of reality, as Leftism is.

    The Left is based on Godless Communism where “man is the measure of all things.” Hubris thus reigns. Skousen writes:

    From this brief summary, it will be seen that the Communist intellectual believes that everything in existence came about as a result of ceaseless motion among the forces of nature. Everything is a product of accumulated accident. There is no design. There is no law. There is no God. There is only matter and force in nature.

    As for man, the Communist philosopher teaches that he is a graduate animal — an accident of nature like all other forms of life. Nevertheless, man is supposed to have the accidental good fortune to possess the highest intelligence in existence. This is said to make him the real god of the universe. This is precisely what Ludwig Feuerbach had in mind when he said: “The turning point of history will be the moment man becomes aware that the only God of man is man himself.”

    For the Leftist mind, there is no chance of measuring truth against anything larger than the Party, the ego, or the Cause. It’s beyond their concept. And although surely many people on the Left straddle the line between self-conscious manipulation and a reflexive “ends justify the means,” many more simply do not hold much importance to truth, and thus to the written word. It becomes an instinct. In fact, from their point of view, it would be handing their enemies ammunition if they didn’t manipulate words at every opportunity. This is made especially easy to justify because they are taught that the laws and words we hold to are illegitimate, a vestige of an oppressor class who uses concepts such as “objective truth” to hold power over people.

    This is why it drives me bonkers to see major GOP figures playing nice with the Left. Obviously some of them just have no idea who these people are and how diabolical and twisted their aims are. One can have a disagreement about policy. But there is no basis for even a democratic process if the other side does not honor truth and facts.

    As I’ve said, and I stand by this (as do others), there is something in Leftism that makes people crazy. And if truth itself becomes just someone else’s “narrative,” how can one ever have a sane state of mind?

    • Timothy Lane says:

      According to Arthur Koestler in The God That Failed, this was known as thinking dialectically. Thus, bourgeois morality involved monogamy, socialist morality involved women in common, and communist morality went back to monogamy. But that wasn’t the same as bourgeois morality because it was being used to support the communist state rather than the capitalist system.

  3. Timothy Lane says:

    The answer to nominalism comes from Cousin Abe. “How many legs does a dog have if you call the tail a leg? Four, because calling the tail a leg doesn’t make it one.”

    The consequence of liberal word trickery is the irony that the “living Constitution” they support involves killing the actual Constitution.

    • Kung Fu Zu Kung Fu Zu says:

      “living Constitution”

      My reply to people who use this crap is to ask them to imagine they were in a poker game. And when the time comes to lay down their three kings, they are surprised to learn that the rules have changed and the guy with a pair of dueces has won the pot.

      Such is life under a living constitution.

    • Jerry Richardson says:

      Timothy,

      Thanks for quoting this one. It is one of my favorite Abe Lincoln happenings. It was said, I think, that he asked his cabinet this question, and they got it wrong. Do you recall the exact context?

  4. GHG says:

    Which brings to mind another potential issue for the new GOP majority in the Senate. They may have to decide whether to confirm or reject an Obama Supreme Court nominee. Some of those SCOTUS justices are a little long in the tooth or have exceeded their “best by” dates (see recent R.B.Ginsberg outburst). Would the GOP Senate have the stones to “Bork” an Obama nominee?

    • Timothy Lane says:

      It probably wouldn’t be possible with a SCOTUS nominee, but in general I think the best Republican approach to any Obama initiative or nomination (except for those, if any, that are genuinely non-controversial) would simply be to ignore it. React as if it didn’t exist — just like slimy Harry Wormwood Reid did to all those House bills.

  5. Jerry Richardson says:

    Words certainly do need to mean something, but they also must be available to be read if their meaning is to be evaluated and understood. Cover-up and obfuscation prevent this necessary adjunct to words having meaning.

    Exactly what took place when the Democrats passed Obamacare.

    Jonathan Gruber, the MIT professor credited with being the architect of Obamacare has made it unmistakable clear that deceit (lack of transparency) was a major essential in getting Obamacare passed.

    As if many of us didn’t know that when Nancy Pelosi famously stated: “we have to pass the bill so that you can find out what is in it”—that’s a rather unmistakable clue to dishonesty.

    Obamacare architect Jonathan Gruber said that lack of transparency was a major part of getting Obamacare passed because “the stupidity of the American voter” would have killed the law if more people knew what was in it.

    Gruber, the MIT professor who served as a technical consultant to the Obama administration during Obamacare’s design, also made clear during a panel quietly captured on video that the individual mandate, which was only upheld by the Supreme Court because it was a tax, was not actually a tax.

    “This bill was written in a tortured way to make sure CBO did not score the mandate as taxes. If CBO scored the mandate as taxes, the bill dies. Okay, so it’s written to do that.
    —-
    Lack of transparency is a huge political advantage. And basically, call it the stupidity of the American voter or whatever, but basically that was really really critical for the thing to pass… Look, I wish Mark was right that we could make it all transparent, but I’d rather have this law than not.”

    Obama Architect: Lack of Transparency Was Key

    • Timothy Lane says:

      Note that Gruber the dishonest liberal intellectual (if you’ll pardon the redundancy) is also the one who claimed that the link of subsidies (and the employer mandate) to state exchanges was unintentional — only to be exposed as having said in prepared comments that the link was intentional, as a means of coercing the states into establishing exchanges. (Naturally, the liar then claimed that his prepared remarks were in fact misspoken.)

  6. Rosalys says:

    Changing the Constitution by redefining the words. They tried to pull this one with the “well regulated army…” phrase of the second amendment. Originally well regulated had more to do with being well equipped. Today, regulated means controlled and so the leftists tried to take advantage of this.

    • Timothy Lane says:

      As a matter of fact, I once read in a John Keegan’s book that “well-regulated” referred to a force consisting of citizens rather than (one way or another) mercenaries. Unfortunately, when I went to check it out I couldn’t remember exactly where in which book, so I’m left with imperfect memory as my only evidence.

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