Skip to main content

View Diary: Mitt Romney's defense of RomneyCare gives him a broccoli problem (66 comments)

Comment Preferences

  •  I don't get the argument (7+ / 0-)

    I hate to defend Mittens, but I think his stance is at least legally and logically consistent.

    He says that the commerce clause (or any other section) doesn't give the feds the right to make us buy a product. That goes for health care, broccoli, or anything else. I and several judges disagree, but thats his argument.

    But the state of Massachusetts has a different constiution. Maybe it is specifically allowed to mandate things (car insurance comes to mind) and disallowed from mandating others (broccoli buying).

    But it certainly isn't a given that just because he thinks the US constitution doesn't allow the government to mandate buying things, that that doesn't mean states can't mandate buying some things and not others (or even that the state constitution of Massachusetts would allow their gov't to mandate broccoli buying.)

    •  It is logically consistent... (2+ / 0-)
      Recommended by:
      Robobagpiper, fayea

      but relies on a commerce clause jurisprudence that died in 1937. Re-imagining the commerce clause/due process in this fashion would mark a return to the Lochner era.

      ""...Liberty is no mere formula of law, or of the restriction of law. There may be a tyranny of custom, a tyranny of opinion, even a tyranny of circumstance, as real as any tyranny of government and more pervasive."

      by joshuadivine on Fri Feb 25, 2011 at 11:35:45 AM PST

      [ Parent ]

      •  Died a few year later (0+ / 0-)

        The problematic case for those opposing PPACA is Wickard which is from 1942.

        It is certainly possible to invalidate PPACA without going all the way back to the 1930s but it is difficult to do so without going back to the 1940s.

        Also, PPACA invalidation would not require any change in the due process clause jurisprudence, so the reference to Lochner would seem inapposite.

        •  Indeed: (1+ / 0-)
          Recommended by:
          Justanothernyer

          I'm just generally referring to the judiciary imposing meaningful constraints on federal economic powers.

          ""...Liberty is no mere formula of law, or of the restriction of law. There may be a tyranny of custom, a tyranny of opinion, even a tyranny of circumstance, as real as any tyranny of government and more pervasive."

          by joshuadivine on Fri Feb 25, 2011 at 12:15:26 PM PST

          [ Parent ]

    •  If he's going to go down that road, (1+ / 0-)
      Recommended by:
      Justanothernyer

      he has to say the individual mandate in Mass. wasn't essential to the design of the program.  That's the only way that he doesn't get stuck inadvertently defending the federal statute's Constitutionality.  But, politically, that means he's saying he signed the individual mandate on a whim, or for the substance-less reason that "it fit Massachuetts."  

      That's called winning the battle but losing the war.

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

      by Loge on Fri Feb 25, 2011 at 11:52:00 AM PST

      [ Parent ]

Subscribe or Donate to support Daily Kos.

Click here for the mobile view of the site