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View Diary: Obama might have a Supreme Court majority on the health care law (238 comments)

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  •  You are missing the mark (3+ / 0-)
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    elmo, Loge, JayBat

    as the "underlying" federal regulation is of an activity that is clearly subject to the Commerce power, to wit, the health insurance industry.

    The is not even a close case.

    •  I don't think you get the distinction between (1+ / 0-)
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      activities that constitute insterstate commerce and activities that substantially affect interstate commerce.  I can easily see Scalia arguing that the decision to not buy health insurance is not an activity that substantially affects interstate commerce.

      •  Frankly, I could see him finding (1+ / 0-)
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        that a "decision" is not an "activity" within the meaning of the commerce clause.  

        What he would do is point to the line of Commerce Clause cases that use the word "activity" to describe what is being regulated.  In all of those cases, the "activity" was, at the very least, affirmatively doing something related to commerce.  

        That's why it's treading new ground either way, and why neither Raich nor any other Commerce Clause case is controlling here.  

      •  Scalia is saying (0+ / 0-)

        that is a distinction without a difference.  An argument about activity versus inactivity might work constitutionally, but it doesn't make a lot of sense in and of itself.  "Free riding" is not inactivity, it's free riding.  Now, it might happen to be the least bad option even with the exchanges to pay the fee, but mortals cannot engage in "inactivity" regarding health, especially if the net effect is to cause health insurance premiums for other people to be higher as a result.  If there's a predictable effect on price, it cannot logically be inactivity, as no effects can exist without a cause.

        "This world demands the qualities of youth: not a time of life but a state of mind[.]" -- Robert F. Kennedy

        by Loge on Thu Sep 29, 2011 at 11:18:30 AM PDT

        [ Parent ]

      •  You don't understand (0+ / 0-)

        that the Necessary and Proper Clause is independent of the Commerce Power.

        That in fact is Scalia's point in his concurrence.

    •  But the law imposes a penalty on individuals (3+ / 0-)
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      blueness, wsexson, davidincleveland

      Thus, it purports to regulate (impose a penalty on) individuals who do not buy health insurance.  

      The question is not whether Congress can regulate the health insurance industry under its Commerce Clause power.  Clearly it can -- the health insurance industry is engaged in interstate commerce activity.  If Congress had simply imposed penalties, or mandates, or guidelines, on the health insurance industry, there would be no constitutional question, I think.

      The question is whether it can use its Commerce Clause power to regulate (i.e., impose a penalty on) an individual who does not buy health insurance.  The analysis that conservative constitutional scholars are raising focuses on the individual -- what in the Commerce Clause gives Congress the right to impose a penalty on an individual who does not buy health insurance -- i.e., who "does nothing."  The argument supporters of the law make is that, as the Sixth Circuit put it, Congress is regulating "The activity of foregoing
      health insurance."  So, the question is simple -- is foregoing health insurance -- i.e., not doing something (not buying health insurance -- "activity" within the meaning of the Commerce Clause and the jurisprudence?  

      As far as I know, there is no case thus far that has held, as the Sixth Circuit characterized it, that "forgoing" something is an "activity" within the meaning of the Commerce Clause.  So, that issue can be decided without being inconsistent with Raich.  

      •  In the congext of Scalia's concurrence (0+ / 0-)

        you are simply incorrect.

        It is about whether the Necessary and Proper Clause empowers the Congress "where  to enact a regulation of interstate commerce, "it possesses every power needed to make that regulation effective."

        The answer, Scalia says in his Raich Concurrence, is yes.

        I repeat, this is not a Commerce Clause issue, but instead an Necessary and Proper Clause issue.

        •  You see the ACA case as a (1+ / 0-)
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          Necessary and Proper Clause issue.  

          And if five justices agree with you, that will be correct.  

          I'm not sure whether five justices will.  

          If five justices see it as a Commerce Clause issue, then it's Commerce Clause issue.  

          As Justice Brennan used to say, the most important number at the Supreme Court is "five."  

          •  That's wrong too (0+ / 0-)

            The initial question, whether regulation of the health insurance industry falls within the Commerce Power is the initial question.

            The answer is obviously yes.

            The next question is does the mandate fall within the Commerce power. I believe it does, but let's say it does not.

            The next question is is there any other power granted to the Congress by the Constiution that supports the mandate?

            I think there are two other powers - the taxing power and the N&P Clause power.

            The taxing issue is pretty clear to me but I do not have a Scalia opinion handy to demonstrate that.

            HOWEVER, regarding the N&P Clause power,, I DO have a Scalia opinion handy - the Raich concurrence.

            I am saying that all else failing on the mandate is constitutional argument, the N&P clause argument is unassailable not just by Scalia's concurrence, though that is pretty valuable but regarding  the entire body of N&P Clause jurisprudence.

            It is not even a  close case.

            Which is not to say the Court is incapable of ignoring it all and doing whatever it wants.

            Indeed, I am a Legal Realist and believe that as a litigation tactic, it would be better for the case to be heard AFTER the election. Then the GOP Court members will not see this as handing Obama an electoral advantage.

            •  let me see if I understand (1+ / 0-)
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              Is it one of these two arguments:  

              1.  the N&P clause gives Congress the authority to do what is N&P to carry out its other enumerated power -- i.e., regulate interstate commerce.  So, Congress can regulate the health insurance industry because that's part of interstate commerce.  And as it's regulation of that industry, the N&P clause allows Congress to mandate that people buy the product of that industry.  (Thus argument assumes that the N&P clause is dependent upon some legitimate exercise of another, enumerated Constitutional power -- like the Commerce Clause power -- and the N&P Clause allows Congress to pass laws "N&P" to carry out those OTHER powers.)

              If that's your argument, then we'll see if the SCOTUS, including Scalia, buy the argument that, as part of regulation of an industry, it is "necessary and proper" to force individuals to buy the product of that industry.

              2. The N&P clause gives Congress some independent power separate and apart from other enumerated powers -- i.e., even if there is no legitimate underlying CC regulation,  the N&P clause gives Congress and independent constitutional authority for passing laws that is not dependent on there being another underlying enumerated power?

              If that's your argument, I'm pretty sure Scalia does not buy into this one.  As far as I know, he's pretty much an "enumerated powers" type.  

            •  Armando, I like coffeetalk's reading of Scalia's (0+ / 0-)

              probable response in his/her reply, but let's cut to the chase. I picture Justice Antonin Scalia saying with a straight face,

              If Congress decided that uninsured but treated citizens were the cause of runaway increases in health insurance premiums, and that it was necessary and proper to control this 'improper stimulation' of interstate commerce, Congress was at liberty to enact, as part of the underlying legislation, a clause exempting hospitals from providing service to uninsured citizens.
              The fact that such a clause would be political suicide for every member of the enacting legislative body wouldn't bother him a bit, and might even 'stimulate' his desire to show his disdain for government mandates by writing such a view into history via his dissent.

              Of course, if he has four other justices agreeing with him that individual mandates are wrong, their majority decision against the mandate will be worded more circumspectly. They simply wouldn't use the "have they no poorhouses" argument in a winning effort.
    •  Key Word Being "Activity" (1+ / 0-)
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      SCOTUS has repeatedly affirmed that Congress can regulate activities, but not inactivities. Like SCOTUS has never said that Congress could mandate that the government could force you to grow wheat, but only what would happen if you voluntarilly decided to grow wheat that you could be regulated by Congress.

      Raich, Wickard, etc are all based upon a predicate act by a person or business - not upon Congress mandate that they do something when they otherwise weren't engaged in that activity. Wickard volutarily engaged in the activity of growing wheat and Raich voluntarily grew his own drugs. Wickard didn't force people to grow wheat nor did Raich force people to go to the drug store and buy stuff. Raich and Wickard both involved those who choose to engage in agricultural production, not people who otherwise weren't engaged in ag production being forced to engaged in ag production.

      •  Again (0+ / 0-)

        For some reason, the discussion of the Necessary and Proper Clause is not well understood in this thread.

        I suggest a full reading of the Scalia concurrence in Raich and then a rereading of McCoulloch v. Maryland.

        •  OK, if you're not going to help out those of us (0+ / 0-)

          who are either too busy* or too lazy to do our own research, by posting links and the relevant paragraphs, allow me this not-on-point response: Our beloved Justice is perfectly capable of finding in contravention of his own earlier findings, digging up legal language that covers his switcheroo, and laughing afterward at detractors who accuse him of cheating at three card monte. Now that I've confessed to being unprepared to refute your argument on its merits (if any --cue the Munchkin Coroner scene) I'll just say my gut tells me that Justice Scalia will find against the mandate by whatever means necessary.
          *I swear I'm going to actually do the homework as soon as I have the time to spare. Why, if I have time to hang out in a thread which analizes [freudian slip misspelling left in to illustrate whatever] analyses the future decisions of a member of the SCOTUS, can't I do my own research from scratch right now? As soon as I come up with that answer I'll let you know.

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