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View Diary: They are who we thought they were: The extreme and radical Republican Party (262 comments)

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  •  Wish I had seen this earlier, since you quote me (1+ / 0-)
    Recommended by:
    ER Doc

    I'm about to head out to a birthday party, Armando, so I can only give this ten minutes, and here goes:

    The PPACA case is in some ways similar to Kelo, wherein the Court had to address the question of whether something that many had presumed to be a limitation on a power of government (state/local, in that case) was challenged.  Then, the common assumption was that a government taking had to be for a public purpose that was undertaken by the government rather than just being handed off to a different private owner.  I think that Kelo, while somewhat offensive and certainly inconvenient and disturbing, was rightly decided, but I understand the criticisms that by allowing government to "take from enemies and give to friends" it potentially was a fundamental change in the structure of government.

    I've had some interesting and wonderful conversations about the PPACA cases recently.  I think that the "usually unstated belief" in what I see as a case of first impression is this: even using the Necessary & Proper Clause, a regulation under the Commerce Clause has to regulate commerce, and commerce must imply activity.

    The "limiting principle" terminology is somewhat unfortunate because it can lead people in the direction you take, as regards a test that one should (or shouldn't) use once the Commerce Clause is invoked.  In that respect, you'd be right: if there is a Commerce Clause power to regulate something that does not require activity, then of course Congress could do this.  What is at issue, though, is a threshold question: is this even an area where the Commerce Clause can be invoked, because the susceptibility of regulation does not derive from an action?

    Now, you can thumb your nose at that all you want, but I think that a lot of people (including well-intentioned ones) have a visceral understanding that something is being contemplated here that has not gone on in any other Commerce Clause + N&P Clause case ever -- and the examples you've chosen of "regulating inaction" have uniformly missed the point.  It's both a political problem (a la Kelo) and a jurisprudential problem for our side.

    If it's a threshold question and one of first impression, then (as you know) justices and scholars will reason by analogy: what sort of model that we currently have in law fits this novel circumstance.  (I know that you don't agree that it is in any novel, which may be the crux of our disagreement.)  In asking that question, a wise judge will ask questions such as "well, what are the implications of this or that formulation?  Does choosing an assumption lead to an absurd result?"

    That's what's going on here with the talk about "limiting principles."  The concern is that electing to believe that inactivity can be regulated the same way as inactivity -- to draw people into a regulatory regime -- leads to absurd results, so that that can't be the correct answer to the question of whether the Commerce + N&P Clauses allow the government to act in something outside of its domain.  The search for a limiting principle is asking a very deep and basic question: is this outside of our previously (even if implicitly, as there had heretofore been no reason to question it) understood operation of these federal powers?

    I don't know if you don't get this, or are pretending not to get it, or simply don't see a distinction there.  I think that those who think that this is simply a power play, rather than a question that people will see as justified because it is seen as potentially changing the nature of relationship between citizen/resident and government, are badly missing out.

    I solicited simple explanations of our pro-PPACA position in this diary.  I was disappointed in the results.  We're not taking this seriously enough, partly because people are accepting the assurances of liberal thinkers like you that there's no real issue there, and no real problem there, so that if we lost it could only be by treachery.

    To me, that's a failure to accept the seriousness of our opponent's argument, which is bad lawyering.

    Sorry I probably won't be around for 3-4 hours.

    Democrats must
    Earn the trust
    Of the 99% --
    That's our intent!

    "I love this goddamn country, and we're going to take it back." -- Saul Alinsky OCcupy!

    by Seneca Doane on Sun Apr 08, 2012 at 12:04:46 PM PDT

    [ Parent ]

    •  I don't think your comment (0+ / 0-)

      adequately addresses my points to you in this post. Indeed, you do not address my points at all.

      I'll address a couple you make here. You write "Now, you can thumb your nose at that all you want, but I think that a lot of people (including well-intentioned ones) have a visceral understanding that something is being contemplated here that has not gone on in any other Commerce Clause + N&P Clause case ever -- and the examples you've chosen of "regulating inaction" have uniformly missed the point.  It's both a political problem (a la Kelo) and a jurisprudential problem for our side."

      I don;t think those are valid points and I think the case law backs me up. You don't agree. Well, you don't agree. I'm sorry that you do not like that I do not think your position is a serious one, as a constitutional question, but I don't.

      As a political question, I think your position is not only wrong, but myopically so. Please address my points in this post in which I explain why I think that.

      And FTR, I do not like the mandate AS policy. If a replacement to it arise from this, that would fit MY policy preferences. But I do not live in a fantasyland.

      The risks to our national state are the more likely consequences.

      Final point - you wrote "The PPACA case is in some ways similar to Kelo, wherein the Court had to address the question of whether something that many had presumed to be a limitation on a power of government (state/local, in that case) was challenged.  Then, the common assumption was that a government taking had to be for a public purpose that was undertaken by the government rather than just being handed off to a different private owner.  I think that Kelo, while somewhat offensive and certainly inconvenient and disturbing, was rightly decided, but I understand the criticisms that by allowing government to "take from enemies and give to friends" it potentially was a fundamental change in the structure of government."

      That was wrong as constitutional law and it was clearly wrong in terms of what the policy risks were.

      Is there an epidemic of takings "for private corporations" in the country? Of course not. Your concerns then were misplaced, as they are now. You misunderstand who we are dealing with.

      •  Got back about 4:30 PT, took a three-hour nap (0+ / 0-)

        Got up, came here to see -- one rec for me, none for you.

        The joke is on both of us, my friend: no one seems to care about our dispute.

        Congratulations on an 80% strong and stirring diary.  Too bad about the 20%.  I still find it interesting Maybe we should continue it, when time permits, by e-mail.

        Democrats must
        Earn the trust
        Of the 99% --
        That's our intent!

        "I love this goddamn country, and we're going to take it back." -- Saul Alinsky OCcupy!

        by Seneca Doane on Sun Apr 08, 2012 at 07:28:03 PM PDT

        [ Parent ]

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