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

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  •  I tend to agree (1+ / 0-)
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    davidincleveland

    The Obama Administration did (and still does, if it wanted to) have this right under its power of taxation.  But, at best, its power to do this under the Commerce Clause is not clear cut (although I think it's arguable.)  They chose not to defend this on taxation grounds because they don't want to be seen as raising taxes -- that has always been a flaw of their approach.

    Now, they're doubling down (going along with what the insurance companies would want, incidentally), saying that if there's no mandate there can be no guaranteed issue.  (This isn't the only option, of course -- there could be a public option.)  They're running a serious risk of losing the good parts of PPACA -- guaranteed issue foremost among them -- as well.

    Why?  Certainly not because they think that they have Scalia penned in to where he has to decide in their favor.  (He doesn't pen in easily, for one thing.)  Re-election fears (fear of being called "tax-and-spenders" are the big driver here.  But there may be another part of their calculation: they may be OK with losing -- again, for re-election purposes.

    There's an old joke about dogs chasing cars that was told by Heath Ledger as the Joker in Batman: the real problem for the dog is that they don't know what to do if they catch one.  Maybe the Obama crew has decided that to galvanize public opinion, what they need is to allow the Republicans to win this battle, take away guaranteed issue and so on, and count on public indignation to fuel Obama's re-election.

    If so, then they're idiots.  They've never explained PPACA well enough to the public to begin with; there won't be the indignation they'd want.  Republicans will just go back to talking about cross-state policies; they'll baffle the public into submission.

    By the way, to those who argued that the Republican argument for PPACA's unconstitutionality was always absurd and had no chance -- do you get it now?

    In my avatar, the blue bars show how many want Reps who COMPROMISE; the aqua bars show who wants Reps who STAND FAST no matter what. (Left=Overall; Center=Democrats; Right=Republicans.) And there's the problem!

    by Seneca Doane on Thu Sep 29, 2011 at 10:58:16 AM PDT

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    •  You're ignoring the N&P Clause (0+ / 0-)

      Don't know why you are ignoring it, but you are.

      •  All right, Armando, let's apply the N&P Clause (0+ / 0-)

        and I think you'll have to agree that it is limited.

        1. Congress has the power to raise an army.

        2. A shortage of young people may limit the number of people who can serve.

        3. By application of the N&P Clause to the express power to raise an army, Congress can thus mandate that women have at least three children.

        There.  Now I'm not ignoring the N&P Clause.  Distinguish away.

        In my avatar, the blue bars show how many want Reps who COMPROMISE; the aqua bars show who wants Reps who STAND FAST no matter what. (Left=Overall; Center=Democrats; Right=Republicans.) And there's the problem!

        by Seneca Doane on Thu Sep 29, 2011 at 02:06:57 PM PDT

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        •  That's just stupid (0+ / 0-)

          There is an express prohibition in the Constitution that prohibits such a law, or perhaps you are unfamiliar with the liberty interest in the Constitution.

          BTW, ever heard of the draft?

          •  Yep, I've heard of the draft (0+ / 0-)

            Have you heard that it doesn't mandate childbearing?

            Where is "the express provision" regarding number of children in the Constitution?  Are reproductive rights now beyond judicial dispute?  Why didn't anyone tell me?  I would have had a party!

            In my avatar, the blue bars show how many want Reps who COMPROMISE; the aqua bars show who wants Reps who STAND FAST no matter what. (Left=Overall; Center=Democrats; Right=Republicans.) And there's the problem!

            by Seneca Doane on Thu Sep 29, 2011 at 04:29:37 PM PDT

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

              There is an express PROHIBITION of government action that impinges on the liberty interests of individuals.

              What's funny is how easily you slip into Lochnerian language.

              I wonder how many other "progressives" are playing your game.

              It's a wonder you are not a Paulista.

              •  Where we differ (and what I've been saying here (0+ / 0-)

                for two years now) is that I don't think that regulation of inactivity is settled law.  I think that, in this Supreme Court, it's a close case and I would not be surprised to see your side win out, but I don't think that it would require overturning any decisions for PPACA's mandate to be found unconstitutional.

                (I'm not a Paulista, in relevant respect, because I'm not rooting for it to be unconstitutional.  I'm offering a dispassionate analysis, my preferences aside.)

                Now, what is the "express PROHIBITION of government action that impinges on the liberty interests of individuals" that would prevent the government, under your theory, from mandating that people floss every day.  If it's "express," it should be easy to find -- and not too vague.

                In my avatar, the blue bars show how many want Reps who COMPROMISE; the aqua bars show who wants Reps who STAND FAST no matter what. (Left=Overall; Center=Democrats; Right=Republicans.) And there's the problem!

                by Seneca Doane on Fri Sep 30, 2011 at 08:41:53 AM PDT

                [ Parent ]

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