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View Diary: Mitt: No apology for HIS individual health care mandate (80 comments)

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  •  In a simple word, yes. (1+ / 0-)
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    State legislatures have plenary power -- they can do anything that is not expressly prohibited by the state constitution.  If the constitution says nothing about it, the state legislature can do it. (The only real exception is if the area is one that the U.S. Constitution grants EXCLUSIVELY to Congress or the federal government, which is a pretty limited list.)

    Congress is just the opposite. Congress can ONLY do things that it is expressly authorized to do under the U.S. Constitution.  There are certain "enumerated powers" (i.e., a list of areas where Congress can exert its authority) in the Constitution.  If it's not in that list, Congress can't do it.  So, you have to find something on the list that gives you the authority.  In this case, the item on the list that was used as the basis of authority is the Commerce Clause.  There are cases holding that the Commerce Clause does not give Congress the authority to do anything it wants under the guise of regulating interstate commerce. The question is whether the authority to regulated interstate commerce extends to Congress the authority to mandate that an individual buy a certain private product or pay a fine.  

    •  If it is necessary & proper, Congress CAN do it (1+ / 0-)
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      The Nose

      Congress has power that goes beyond just the specific enumerated powers.
      The constitution also says that Congress has the power to do things that are "necessary and proper" to carry out the specific enumerated powers.

      That's why the Supreme Court agreed that Congress can pass a law, under their power to regulate commerce that crosses state lines, that limits how much wheat one farmer can grow on his own land for his own personal use.  Because that farmer's wheat production has an effect on interstate commerce, even though it is purely intrastate (and even though his wheat is not traded or used in commerce at all).
      Because it is necessary for the law to work that it regulates all wheat production.
      Same thing with marijuana cultivation and possession -- even if it is done for personal use on one's own property in a state where that is legal under state law, the Supreme Court has agreed that because that has an effect on the interstate market for marijuana (and even though that is an illegal market), Congress has the power to regulate or prohibit that personal use.

      •  Yes that's my understanding (0+ / 0-)

        Arguing for enumerated rights only sounds like something right out of the Libertarian Party / Constitution Party (very narrow interpretation of what government can do).

        "The real wealth of a nation consists of the contributions of its people and nature." -- Rianne Eisler

        by noofsh on Tue Feb 01, 2011 at 11:34:11 AM PST

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        •  Actually, it goes back to the case (1+ / 0-)
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          of McCullogh v. Maryland, with Chief Justice John Marshall. It was reaffirmed most recently in United States v. Lopez, which held that the Gun Free School Zone Act exceeded Congress' authority under the Commerce Clause.

          And it's enumerated powers, not enumerated rights.

          •  Raich, in 2005, affirmed broad Commerce power (0+ / 0-)

            In the most recent case interpreting the extent of Congress's power under the Commerce Clause, Gonzalez v. Raich, the Court affirmed Congress's power to prohibit the possession of marijuana even in small amounts for personal medicinal use in a state that has legalized that -- on the grounds that this was a necessary part of Congress's right under the Commerce Clause to regulate the cultivation, trafficking and use of marijuana and other drugs.
            The decision was 6-3, with Justice Kennedy in the majority affirming Congress's power to enact the law, and with a concurrence from Justice Scalia specifically authorizing that application of the law under the Necessary and Proper clause (taken together with the power under the Commerce Clause).

    •  So by that logic (1+ / 0-)
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      The Nose

      is every decision that the EPA makes unconstitutional?

      The constitution doesn't say anything about the right of the government to regulate water yet we generally recognize that only the federal government could do this job effectively. Doesn't the constitution say that the government should promote the "general welfare of the people".

      I am not a fan of enumerated rights.  That is way too narrow.  There would be no way to respond to problems that could have never been anticipated when the constitution was written.

      In short, this is very flimsy and if upheld would throw into chaos many useful functions that federal government undertakes.

      "The real wealth of a nation consists of the contributions of its people and nature." -- Rianne Eisler

      by noofsh on Tue Feb 01, 2011 at 11:31:39 AM PST

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      •  You need to talk to the SCOTUS (2+ / 0-)
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        twcollier, VClib

        which has reaffirmed the principle of enumerated powers on many occasions, beginning with Chief Justice John Marshall in McCulloch v. Maryland.

        If the litigants in this case try to convince the SCOTUS to do away with the concept of enumerated powers, and hold that Congress can do whatever it deems to be in the best interest of the country, that WOULD be a legal and constitutional earthquake.

        Not even the proponents of the law are taking that kind of position.    

      •  noofsh - powers of the federal gov't (0+ / 0-)

        The general welfare clause has never been viewed by the SCOTUS as a catch all or "all other" to give the federal government broader powers. It has been more commonly thought of as a "do no harm". The limits of the enumerated powers can, and have been, extended by amendments to the Constitution.

        "let's talk about that"

        by VClib on Tue Feb 01, 2011 at 10:48:13 PM PST

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