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View Diary: Supreme Court, Affordable Care Act: Is the mandate constitutional? (372 comments)

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  •  I can't find a way to disagree with this argument (0+ / 0-)
    The Constitution grants Congress the power to regulate commerce, not the power to compel individuals to enter into commerce. That distinction is fundamental
    This is the distinction with all other comparisons and supposed precedents. No other examples force the person to enter into commerce, by virtue of their existence as a human being residing in the US. All exemptions arise from inability to obtain it, not the philosophical disagreemen that they can be forced to have it.

    It 'codifies' (I know wrong word) the insurance industry and the health industry as the standards of health care providers. Aren't we allowed to disagree there are other ways of obtaining health care other than the one the government has decided is the correct way?

    "I'm sculpting now. Landscapes mostly." ~ Yogi Bear

    by eXtina on Tue Mar 27, 2012 at 07:07:22 AM PDT

    •  The Necessary and Proper clause (6+ / 0-)

      Please review my discussion of that provision.

      As for what you like as policy, sorry, that's not the test for constitutionality.

      •  But the government is saying that's the way (0+ / 0-)

        you have to get health care. How can the government tell you how to obtain your health care?

        I did read the necessary and proper clause, and am asking for clarification. I hope you're not a teacher.

        "I'm sculpting now. Landscapes mostly." ~ Yogi Bear

        by eXtina on Tue Mar 27, 2012 at 07:31:06 AM PDT

        [ Parent ]

        •  That's ean easy question (2+ / 0-)
          Recommended by:
          Gary Norton, Vicky

          The Congress has an absolute power to regulate interstate commerce, subject to prohibition contained in the Constitution. (liberty rights, federalism, etc.)

          Did you read my post? Did you read the excerpt from Gibbons? How about the excerpt from Raich? Comstock?

          How so you think Social Security and Medicare are constitutional?

          •  So why won't the gov't be able to force you to (0+ / 0-)

            buy broccoli or an electric car?

            "I'm sculpting now. Landscapes mostly." ~ Yogi Bear

            by eXtina on Tue Mar 27, 2012 at 07:48:02 AM PDT

            [ Parent ]

            •  On the first (1+ / 0-)
              Recommended by:

              because the liberty interest found in the 14th Amendment would preclude it.

              On the second, it would do so by banning all cars that are not electric cars. Or do you think they can't do that? Cuz you'd be wrong.

              •  Obviously the question implies (0+ / 0-)

                forcing you to buy a certain vehicle with other options on the market.

                then the liberty interest/14th amendment should apply to health insurance

                "I'm sculpting now. Landscapes mostly." ~ Yogi Bear

                by eXtina on Tue Mar 27, 2012 at 08:05:39 AM PDT

                [ Parent ]

              •  even if you don't or can't drive any car (0+ / 0-)

                say you're blind or live in a city, and don't want or need a car - why can't the government force you to buy an electric car? Why does that argument not apply to health insurance? Because 'everyone' needs health care? That's an assumption. They will of course need to buy/use it if they're forced to purchase it.

                "I'm sculpting now. Landscapes mostly." ~ Yogi Bear

                by eXtina on Tue Mar 27, 2012 at 08:23:34 AM PDT

                [ Parent ]

          •  I would Add the Racial Discriminations are (0+ / 0-)

            Important to the discussion as well, just based on how others could understand.

            Some may not get Stare Decisis. You are supposed to follow the past decisions to the extent you can. Of course lawyers on one side usually do everything they can to distinguish, and lawyers defending do everything they can to say it is the same.

            But based on Stare Decisis the interpretation is there, I agree making it an easy question. And the correct interpretation absent overturning Wickard is to allow this.

            The Racial Discrim Cases:

            Discrimination Cases

            1. Heart of Atlanta Motel v. United States.  The Court used the Commerce Clause to sustain a law challenged by someone in Atlanta that wanted to be able to refuse rent to African Americans.
            -> How their discrimination impedes interstate commerce- It impedes interstate travel both in impairing their convenience and discouraging travel of blacks
            -> So the power of commerce to promote interstate commerce also includes the power to regulate the local incidents thereof, including local activities in both the states of origin and destination that might have a substantial and harmful effect upon that commerce.

            2. Katzenbach v. McClung- Court upheld the application of title II to A restaurant in Alabama with a  seating capacity of 220 and 11 blocks from an interstate highway.
            1.) because AA's couldn’t buy prepared food served on the premises except in an isolate and unkempt restaurant, this discourages travel and obstructs interstate commerce because you can’t travel without eating.

            This is how powerful and far reaching the Commerce Clause became (and should be). Otherwise those cases would be decided otherwise.

            •  I think Lopez is really Important (0+ / 0-)

              Not quoted, great diary. But they cite to.

              I say that because you had an instance of the Justices actually striking down something based on the Commerce Clause. The dissent and concurring opinions are very telling. Could very well resemble what we get. I have no idea, I would need to read the diary 10 times to get it probably. This is difficult con-law even for lawyers :-)

              The Lopez parts worth pointing out:
              1.) Souter- Reminds us on 165/177 He’s saying that the reason we let Congress do virtually anything is trying to interpose the Court between Congress and the Commerce clause may be the end of the Court. The tightrope I mention down page. (re why the Court is relevant, how Wickard was needed, if held otherwise USSC would cease to be relevant).
              2.) Equal import- Kennedy and O’Connor opinion concurence- agree it’s unconstitutional, they say in part what Souter was saying, that we don’t want a return to 1937.   What they are saying is that we are not going back to pre 37 jurisprudence  “The court has an immense stake in the stability of our Commerce Clause jurisprudence as it’s evolved” 159.

              I could see them chipping away but getting these concurrences.  I agree with you though.

    •  They are entering it every time (2+ / 0-)
      Recommended by:
      kareylou, Vicky

      they go to the doctor.  If they go to the emergency room.

      Now, it's possible that some people may never go to the doctor or the emergency room during their lifetimes.  But should those very, very control the power of congress to address a national problem?

      "We calmly accept our uncertain position." Joey Rathburn. But HBO can kiss my ass for cancelling Luck.

      by Paleo on Tue Mar 27, 2012 at 07:25:21 AM PDT

      [ Parent ]

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