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View Diary: Big story: HCR ruled unconstitutional. Little story: 14 judges disagree. (179 comments)

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  •  so the dKos talking point today is: (10+ / 0-)

    Obama's HCR was all good.

    I remember a time when there was a pretty vigorous debate here about the HCR proposal. As I recall a great many people here were very skeptical of it.

    But now this site has become so reactionary. If a Tea Partier is against something (TSA pat-downs, individual mandate), we have to be for it.

    To defend Obama? To be progressive? Which apparently to front page diarists here really just means "the opposite of what Republicans want today?"

    I think this judge may have done the nation a huge favor.

    •  Yeah (0+ / 0-)

      Just showed that you can both rule on a case and campaign against what you are ruling on as a federal judge.

      Hey you, dont tell me theres no hope at all Together we stand, divided we fall.

      by marcvstraianvs on Mon Dec 13, 2010 at 01:36:22 PM PST

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    •  Actually, the court didn't rule (7+ / 0-)

      on the case of "good versus bad." It was whether the legislation was unconstitutional and specifically unconstitutional under the commerce or taxation powers.  Understood as such, this was a pretty conservative -- and aggressive -- ruling.

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

      by Loge on Mon Dec 13, 2010 at 01:38:28 PM PST

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    •  we have ALWAYS been at war with Oceania (14+ / 0-)

      (snicker) (giggle)

      The very idea of mandated insurance was stupid.  It's like "solving" the homeless problem by forcing people to buy houses.

      It not only helps no one but the insurance companies, but it kills what was a core Democratic principle for half a century--health care is a RIGHT, not a commodity to be be bought and sold like soap or corn flakes--and it is the government's DUTY to provide everyone with health care.

      Instead, we sold our balls to the insurance lobby, passed a twenty-year old Republican proposal, and now declare that it's the best thing Dems ever did.


    •  a lot of people here invested a lot of energy (0+ / 0-)

      and time into HCR. it was supposed to be a hallmark of the Democratic majority. hard to let go of the dream and actually you don't have to, just this incarnation of the dream is defunct.

      And the Democrats are trying to defund it.

      So I don't know what the obession is with keeping it alive here.

      must not spam thread.must not spam thread.must not spam thread.must not spam thread.

      by Krush on Mon Dec 13, 2010 at 01:43:25 PM PST

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      •  The obsession... (1+ / 0-)
        Recommended by:

        ... at least for me, is on the implications of these sorts of readings of the Commerce and the Necessary + Proper clauses  of the constitution.

        There is an ascendant judiciary that is trying to unravel constitutional protections and powers that have been recognized for over a hundred years.

    •  there was never any significant support here (2+ / 0-)
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      TexasTom, J M F

      claiming it was unconstitutional.

      people here know how to have a rational argument, regardless of their beliefs or agenda even

      Julian Assange revealed the identity of my Secret Santa.

      by eXtina on Mon Dec 13, 2010 at 01:46:03 PM PST

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      •  It is unconstitutional without a valid public (2+ / 0-)
        Recommended by:
        neroden, judyms9


        But no would say that because it happens to be a talking point of the right-whose main agenda is to make sure people keep voting for them, and so they demonize the hell out of their opponent. They also said that Obama was going to force people to have abortions and all kinds of ridiculous things.

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        by Krush on Mon Dec 13, 2010 at 01:54:30 PM PST

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        •  I pretty much agree (4+ / 0-)
          Recommended by:
          Elmo Buzz, neroden, Krush, tnproud2b

          I think it unconstitutional for the govt to force people to buy a private for-profit product under penalty of law, without a govt-funded alternative.  Even in auto insurance, states like Florida have Citizens Insurance where people who can't get private insurance can still drive.

          And of course the crucial difference between mandated health insurance for everyone ,and mandated insurance for drivers, is that people have a choice to drive or not--they don't have a choice to breathe or not.

          There is a reason why the Repugs proposed mandates 40 years ago and Dems OPPOSED mandates for 40 years.

          We seem to have forgotten those reasons, now that the Dems have sold us out and abandoned their own party's principles.

          •  I am appreciative at least that they (1+ / 0-)
            Recommended by:

            are attempting to defund it. But the Republicans want this monster alive because it does make the Democrats look bad.

            must not spam thread.must not spam thread.must not spam thread.must not spam thread.

            by Krush on Mon Dec 13, 2010 at 02:11:13 PM PST

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    •  I'm with you. (4+ / 0-)

      I certainly haven't changed my position. The mandates were a loser from the start.

      "Whenever a fellow tells me he's bipartisan, I know he's going to vote against me."-- Harry S. Truman

      by irmaly on Mon Dec 13, 2010 at 01:54:56 PM PST

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    •  I think there's a difference between (5+ / 0-)
      Recommended by:
      Pd, TexasTom, Krush, Matt Z, AZphilosopher

      "the mandate is a bad idea" and "the mandate is unconstitutional." I don't recall anyone here saying the latter, although I could be wrong.

      Fight until we win. Then we can begin arguing about the details. - Kwickkick (RIP) 2009

      by RickMassimo on Mon Dec 13, 2010 at 02:10:17 PM PST

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      •  Well I am saying it now (3+ / 0-)

        The mandate is unconstitutional without a public option.

        And it is not a right wing talkingpoint. The rightwingers would say the public option is unconstitutional because thats socialism, whine,

        must not spam thread.must not spam thread.must not spam thread.must not spam thread.

        by Krush on Mon Dec 13, 2010 at 02:19:47 PM PST

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        •  Point to the specific... (3+ / 0-)
          Recommended by:
          Krush, RickMassimo, CalliopeIrjaPearl

          ...part of the constitution that makes this law "unconstitutional."

          •  here: (2+ / 0-)
            Recommended by:
            Elmo Buzz, Cartoon Messiah

            Section 8

            The Congress shall have power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States;

            The healthcare mandate via the current hcr bill is not uniform. at all.

            Depending on where you live, and the type of healthcare you can procure, the costs vary too widely.

            I am all for the gov. healthcare. In fact, this article also defends it. But it has to be fair.

            must not spam thread.must not spam thread.must not spam thread.must not spam thread.

            by Krush on Mon Dec 13, 2010 at 03:18:48 PM PST

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      •  I do recall it (2+ / 0-)
        Recommended by:
        Elmo Buzz, RickMassimo

        In fact I may very well have made that argument myself, since I do think that a mandate without a public option is absolutely unconstitutional--as is ANY attempt to force people to buy a private product from a for-profit company.

        It chills me that "progressives" would ever support, much less propose, such a thing.

        •  How is it unconstutional? (2+ / 0-)
          Recommended by:
          RickMassimo, IPLawyer

          I hear a lot of libertarian types going on and on about it, but I have yet to read any even vaguely convincing argument.

          This seems to me a very clear-cut case of congress exercising its powers under both the commerce clause and the necessary and proper clause.

          The judge was only able to come to this ruling by a gross (and willful IMHO) misreading of the constitution followed by blindly ignoring over a hundred years of settled law.

          This doesn't stand a chance of surviving appeal and if it does then it may well represent the most dramatic legal reinterpretation of the constitution in our Nation's history.

          •  let me ask you . . . (2+ / 0-)
            Recommended by:
            Elmo Buzz, neroden

            If Congress were to pass a law tomorrow mandating that everyone in the US has to buy a new car tomorrow or pay a fine (to help the economy, let us say), would that be, in your view, constitutional, under its authority to "regulate commerce"?

            I think a privacy argument could be made under the constitution---how I spend my money is my business, not Congress's.  There is also the whole "equal protection under the law" thing--when Congress forces us to buy the product of a particular for-profit industry, then there is no longer equality under the law--someone now enjoys official government-granted privilege.

            I find it fascinating that you do not see any cConstitutonal problems with the govt forcing people to buy the product of a particuklar for-profit industry.

            Would your view change if it were, say, the Bush Administration passing a law mandating that everyone buy a handgun (for "self-protection")?

            •  If an "official government-granted privilege" (0+ / 0-)

              were the test of an Equal Protection violation, then progressives sure would be in trouble, wouldn't we?

              As for the government not being able to get involved in how you choose to spend your money, the individual economic rights doctrine was tried and failed early last century -- and it slowed a lot of New Deal legislation in the process.

              •  perhaps, perhaps not (1+ / 0-)
                Recommended by:

                After all, the Supreme Court invalidated LOTS of the New Deal as unconstitutional--until FDR played hardball and threatened to pack the court in his favor.

                But I notice no one answered my questions:  If the US were to pass a law tomorrow requiring everyone in the US to buy a new car or pay a fine, would that, in your view, be constitutional?

                How about if Dubya had passed a law mandating everyone in the US to buy a handgun (for "protection from terrorists).  Would that, in your view, be consitutional?

                •  Depends. (0+ / 0-)

                  Does Congress have a rational basis for believing that those activities, in the aggregate, have a substantial effect on interstate commerce?  The answer to that question determines the law's constitutionality under the Commerce Clause.

                  What you're trying to do is create unpopular hypotheticals in order to show that something is unconstitutional.  You can take anything to such an extreme; that doesn't mean it's outside Congress's power.  I think a 99% flat rate income tax would be absurd, but that doesn't mean that Congress doesn't have the power to issue income taxes.  I think that opening five new post offices in Prudhoe Bay, Alaska would be absurd, but that doesn't mean that Congress doesn't have the power to establish post offices.  Political reasons for opposing a law are different from the constitutional reasons for opposing it.

          •  According to what I'm reading ... (3+ / 0-)

            ... the thing is that the judge ruled that the mandate can be severed from the rest of the ACA. Apparently, Democrats, because they're, you know, Democrats, didn't put in a standard "severability" clause saying that if one part of the act is found unconstitutional it doesn't mean the whole bill gets thrown out. But this judge, even while ruling against the mandate, says that it is severable.

            Links here and here.

            I also think this is overblown. Republicans are doing a victory lap, but that's just because they haven't yet gotten the phone calls from their insurance-industry bosses saying "The mandate is the only part of the ACA we like. Stop messing with it." Which they dutifully will.

            Fight until we win. Then we can begin arguing about the details. - Kwickkick (RIP) 2009

            by RickMassimo on Mon Dec 13, 2010 at 02:51:08 PM PST

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    •  You've got to be joking...! (1+ / 0-)
      Recommended by:

      I think this judge may have done the nation a huge favor.

      Even if you don't like the healthcare reform legislation, this judge's decision would be a disaster for progressives if it is allowed to stand.

      It would lead to a dramatic narrowing of what the federal government can do under the commerce clause -- which, in turn, would give conservative judges open season on all manner of progressive programs that they don't like.  

      Political Compass: -6.75, -3.08

      by TexasTom on Mon Dec 13, 2010 at 07:29:03 PM PST

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      •  You understand. (1+ / 0-)
        Recommended by:

        The rationalization that this judicial opinion would be limited to federal laws requiring individuals to purchase products from for-profit entities in a market that lacks a public option is wishful thinking, and incredibly short-sighted.

        In fact, folks on both the left and the right rely on a broad reading of the Interstate Commerce Clause a lot more than they'd like to admit.  Thank you for recognizing that.

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