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

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  •  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.
      •  I'm not sure what you are prefering (1+ / 0-)
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        I think there is a fundamental misunderstanding here of the Necessary and Proper Clause, McColloch, Raich and Comstock. I do not think any of the commenters taking the view of coffeetalk understand it. I've seen no evidence of understanding at least.

        That Scalia might do whatever he wants is a different point altogether.

        That is the Legal Realist point. I am of that school.

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