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Via BTD, the Wall Street Journal loves Judge Roger Vinson's "exhaustive and erudite opinion" declaring the Affordable Care Act unconstitutional. The paper's editorial board might be experiencing a bit of cognitive dissonance today, following the testimony of Ronald Reagan's solicitor general Charles Fried.

I am quite sure that the health care mandate is constitutional. … My authorities are not recent. They go back to John Marshall, who sat in the Virginia legislature at the time they ratified the Constitution, and who, in 1824, in Gibbons v. Ogden, said, regarding Congress’ Commerce power, “what is this power? It is the power to regulate. That is—to proscribe the rule by which commerce is governed.” To my mind, that is the end of the story of the constitutional basis for the mandate.

The mandate is a rule—more accurately, “part of a system of rules by which commerce is to be governed,” to quote Chief Justice Marshall. And if that weren’t enough for you—though it is enough for me—you go back to Marshall in 1819, in McCulloch v. Maryland, where he said “the powers given to the government imply the ordinary means of execution. The government which has the right to do an act”—surely, to regulate health insurance—“and has imposed on it the duty of performing that act, must, according to the dictates of reason, be allowed to select the means.” And that is the Necessary and Proper Clause. [...]

I think that one thing about Judge Vinson’s opinion, where he said that if we strike down the mandate everything else goes, shows as well as anything could that the mandate is necessary to the accomplishment of the regulation of health insurance.

Fried also pointed out that the law would have most definitely been constitutional if it included a public option.

FRIED: As I recall, the great debate in the Senate was between this device and something called the public option. And the government option was described as being something akin to socialism and I think there is a bit of a point to that. But what is striking Senator is that I don’t think anybody in the world can argue that the government option or a single payer federal alternative would have been unconstitutional.

Indeed. In fact, plenty of people would be happy to see the mandate, constitutional as it might be, replaced by a public option which has the additional benefit of being exceedingly cost effective. Some Democrats are apparently exploring alternatives to the mandate. Maybe what they should be looking at is a constitutional expansion of public health systems.

Originally posted to Daily Kos on Wed Feb 02, 2011 at 01:55 PM PST.

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Comment Preferences

    •  nope, they walked up to the edge w/ Bush v. Gore (1+ / 0-)
      Recommended by:
      TofG

      (actually over the edge) and I don't think they want to be there again.

      You have exactly 10 seconds to change that look of disgusting pity into one of enormous respect!

      by Cartoon Peril on Wed Feb 02, 2011 at 02:00:01 PM PST

      [ Parent ]

    •  it's been said that (10+ / 0-)

      The Roberts Court, the five-man junta of Chief Justice John Roberts and his fellow black-robed corporados on the Supreme Court: Sam Alito, Anthony Kennedy, Antonin Scalia, and Clarence Thomas. For these extremist judicial activists, 'lawful' is whatever they will it to mean, even if their rulings defy logic, reality, the will of the people, the Founders' clear intentions, legal precedent, common sense, and any sane measure of justice.

      http://www.hightowerlowdown.org/...

    •  Yep, that's what I see coming too (6+ / 0-)

      These are the same right wing nutbags who overturned 100 years of legal precedent in order to deliver Citizens United to their corporate overlords, not to mention Bush v Gore.

      I have no doubt whatsoever that they'll overturn the whole thing just in time for the 2012 elections.

      The right wngers on todays Supreme Court aren't justices, they're part of the national right wing political operation.

      "He's the one, who likes all our pretty songs. And he likes to sing along. And he likes to shoot his gun. But he knows not what it means" - Kurt Cobain

      by Jeff Y on Wed Feb 02, 2011 at 02:06:55 PM PST

      [ Parent ]

      •  Let's not forget Heller and McDonald (3+ / 0-)
        Recommended by:
        Jeff Y, Dirtandiron, lostinamerica

        those rightwing judicial activists have been quite busy overturning the established understanding of the Constitution since Ronnie starting appointing them to federal courts thirty years ago...

        Give me your tired, your poor, Your huddled masses yearning to breathe free
        ¡Boycott Arizona!

        by litho on Wed Feb 02, 2011 at 02:08:34 PM PST

        [ Parent ]

      •  On the contrary (4+ / 0-)

        I have no doubt whatsoever that they'll overturn the whole thing just in time for the 2012 elections.

        I have little doubt that the Corporate-owned Roberts court will enshrine the mandate in stone for the  reasons I've outlined below:

        what will be the next mandate?

        Taking Single-Payer and the Public Option off the table in favor of a mandate to purchase private, for-profit insurance is a terrible precedent. It's not hard to see that if the mandate is allowed to stand, next up will be the privatization of Social Security, with a mandate to buy into for-profit Wall St-administered retirement plans. Then we'll see the dismantling of Public Education, with a mandate to send students to for-profit corporate Charter Schools. The final nail in the coffin of public service will be the de-funding of government police and fire departments, and a mandate to subscribe to private first responders.

        Wiping out the possibility of having the government provide essential life-saving services on a non-profit basis and replacing them with a mandate to buy them from for-profit providers is a Corporatists' wet dream. There's no way they'll overturn it.

        Al Qeada is a faith-based initiative.

        by drewfromct on Wed Feb 02, 2011 at 02:28:01 PM PST

        [ Parent ]

        •  And all of those things would be Constitutional, (0+ / 0-)

          not good policy, but Constitutional.

          This line of reasoning, though, overlooks the ways in which health insurance markets are differently structured from other ones.  They're a classic two-sided market, which means there are important network effects.  The cost containment provisions only work with a broad risk pool, which requires more people into the system.  Maybe there are other ways to do this than an individual insurance mandate, but as long as there are meaningful limitations on insurance company abuses and the cost containment parts actually work, the mandate makes everyone better off.

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

          by Loge on Wed Feb 02, 2011 at 02:37:11 PM PST

          [ Parent ]

          •  Unfortunately (0+ / 0-)

            the definition of what is and is not "Constitutional" rests with the tender mercies of the SCOTUS, the same venerable institution which gave us such legal gems as Plessy V. Ferguson, Bush V. Gore, and Dred Scott. That said, if the travesties of policies outlined above have been "Constitutional" all along, then one wonders why they were not enacted already, say, during the height of the Gilded Age?

            Al Qeada is a faith-based initiative.

            by drewfromct on Wed Feb 02, 2011 at 02:57:56 PM PST

            [ Parent ]

            •  The gilded age court went another way, (0+ / 0-)

              taking a very limited view of Congress's regulatory power (they even held sugar refining wasn't commerce and so couldn't be subjected to the antitrust laws).  In Lochner v. New York, they enshrined a near-absolute liberty of contract in the due process clause, striking down mandatory wage laws.  

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

              by Loge on Wed Feb 02, 2011 at 03:13:08 PM PST

              [ Parent ]

        •  I hope you're right (0+ / 0-)

          I have very little faith in the activist right wing Roberts court.

          "He's the one, who likes all our pretty songs. And he likes to sing along. And he likes to shoot his gun. But he knows not what it means" - Kurt Cobain

          by Jeff Y on Wed Feb 02, 2011 at 03:33:52 PM PST

          [ Parent ]

    •  Four whack jobs and one mainline conservative. (1+ / 0-)
      Recommended by:
      Dirtandiron

      I don't have a lot of hope of breaking off the conservative.

  •  Mandate is stupid but constitutional (4+ / 0-)
    Recommended by:
    eru, happymisanthropy, squarewheel, TofG

    The legislature is free to do stupid things.

    You have exactly 10 seconds to change that look of disgusting pity into one of enormous respect!

    by Cartoon Peril on Wed Feb 02, 2011 at 01:58:56 PM PST

    •  If the mandate is Constitutional (2+ / 0-)
      Recommended by:
      squarewheel, melpomene1

      what will be the next mandate?

      Taking Single-Payer and the Public Option off the table in favor of a mandate to purchase private, for-profit insurance is a terrible precedent. It's not hard to see that if the mandate is allowed to stand, next up will be the privatization of Social Security, with a mandate to buy into for-profit Wall St-administered retirement plans. Then we'll see the dismantling of Public Education, with a mandate to send students to for-profit corporate Charter Schools. The final nail in the coffin of public service will be the de-funding of government police and fire departments, and a mandate to subscribe to private first responders.

      This is not good news. The mandate must be struck down, because it is an awful, terrible, no-good precedent.

      Al Qeada is a faith-based initiative.

      by drewfromct on Wed Feb 02, 2011 at 02:06:17 PM PST

      [ Parent ]

      •  Uh...no...buying insurance is not the same (2+ / 0-)
        Recommended by:
        eru, Cartoon Peril

        as funneling benefits into stocks or some private market entity.  

        It's a nice rhetorical device...to harp on mandate but I don't see the legal extrapolation of precedent to these matters.

        1964 Cassius Clay vs Sonny Liston, 1997 Masters Tiger Woods vs Field, 2008 Barack Obama vs Field

        by ZenMaster Coltrane on Wed Feb 02, 2011 at 02:10:53 PM PST

        [ Parent ]

        •  Forcing people (3+ / 0-)

          to spend their money to purchase a for-profit product--especially a necessary, essential product--IS the same as forcing people to purchase a for-profit product, and a legal precedent IS a legal precedent.

          If you don't see it, you need to open up your eyes.

          Al Qeada is a faith-based initiative.

          by drewfromct on Wed Feb 02, 2011 at 02:14:49 PM PST

          [ Parent ]

          •  So we should make car insurance public? (1+ / 0-)
            Recommended by:
            zinger99

            I'm forced to buy car insurance, and I have to do it via a private, for-profit company. Should we have a public option there, too?

            •  IMHO, yes (1+ / 0-)
              Recommended by:
              happymisanthropy

              The car insurance issue is different because nobody is forcing you to own a car. That's been gone over here many times. However, I would be totally in favor of a "public option" for car insurance that's administered by the state on a non-profit basis. Why not? I think that every necessity should be available on a non-profit basis in order to make life easier for the poor, along with higher quality "premium" goods and services provided by the private market for those who are willing and able to pay more. Again, why not?

              Al Qeada is a faith-based initiative.

              by drewfromct on Wed Feb 02, 2011 at 02:20:44 PM PST

              [ Parent ]

              •  Just wondering BTW (0+ / 0-)

                I'm not trying to equate car insurance with health insurance; I'm just trying to feel out how you feel about the government mandating you to purchase something from a for-profit company.

                •  As far as I'm concerned (5+ / 0-)

                  the government has no business mandating that we purchase anything unless it is available on a non-profit basis. Otherwise, the government is simply picking favorites, and practicing corrupt crony capitalism. That's how I feel on the subject, since you asked.

                  How do you feel about being forced to purchase for-profit health insurance from companies which derive their profits by denying access to care?

                  Al Qeada is a faith-based initiative.

                  by drewfromct on Wed Feb 02, 2011 at 02:39:30 PM PST

                  [ Parent ]

                  •  Many public schools require your children... (1+ / 0-)
                    Recommended by:
                    Loge

                    ...have health/medical insurance if they want to play any of the [extracurricular] activities...no insurance no play. Is that fair for those from lower income families.

                    Our nations quality of life is based on the rightousness of its people.

                    by kalihikane on Wed Feb 02, 2011 at 03:18:28 PM PST

                    [ Parent ]

                  •  "unless it is available on a non-profit basis" (0+ / 0-)

                    in terms of the commerce clause analysis, i don't see how the nature of the product you're required to purchase reflects back on whether having it or not having it constitutes "activity" or has a "substantial effect" on business.  Once you concede the government could requier people to buy into a public option, the Constitutional issue is over.  

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

                    by Loge on Wed Feb 02, 2011 at 03:20:23 PM PST

                    [ Parent ]

                    •  It's the same difference (0+ / 0-)

                      Once you concede the government could requier people to buy into a public option, the Constitutional issue is over.  

                      as requiring citizens to pay taxes to fund public schools as opposed to eliminating public schools and requiring citizens to pay for privately run for-profit schools.

                      It comes down to forcing people to pay extra for the same products, with the difference going to subsidize profits which enrich the few at the expense of the many while adding no value whatsoever to the services in question.

                      Al Qeada is a faith-based initiative.

                      by drewfromct on Wed Feb 02, 2011 at 04:06:04 PM PST

                      [ Parent ]

                  •  Not great (0+ / 0-)

                    But then again I think we should have completely socialised medicine in this country,

                •  I take another tack. (2+ / 0-)
                  Recommended by:
                  kalihikane, Loge

                  By mandating that you purchase health insurance, the government is basically saying that you need to be prepared to shoulder medical expenses that come your way.

                  If you don't, and you end up in the ER, it's the taxpayers who pay for your care.  So it's a way of minimizing taxpayer subsidy of somebody else's care.

                  I don't necessarily favor this as the best option - I would much prefer a public option or, even better, single payer.  But that's what we're working with.

                  The most violent element in society is ignorance.

                  by Mr MadAsHell on Wed Feb 02, 2011 at 02:47:22 PM PST

                  [ Parent ]

                  •  I'll stay on the same tack (0+ / 0-)

                    By mandating that we purchase for-profit health care from companies that derive their profits through denial of care, the government is forcing you to subsidize corporate profits,advertising, limos, private jets, CEO mega salaries, and dividends paid to shareholders who not only don't lift a finger to provide medical care, but make more money when care is denied. How is this preferable?

                    Since we have to pay taxes anyway, isn't it better that our taxes go to pay for necessary and life-saving services provided to all, as needed, and with as little money as possible being wasted on overhead?

                    Taking your tack, are you better off paying taxes for roads, education, police, firemen, plow drivers, and etc. and so on, or do you honestly believe that you'd do better to "be prepared to shoulder the burden" by being forced to obtain all of the above A La Carte, from  for-profit providers who will charge much higher prices?

                    Al Qeada is a faith-based initiative.

                    by drewfromct on Wed Feb 02, 2011 at 03:14:41 PM PST

                    [ Parent ]

                    •  No. (1+ / 0-)
                      Recommended by:
                      drewfromct

                      I clearly state that I completely favor a PO or single payer over the mandate.  In fact, health care should be treated just as we treat the police, fire, roads, etc. - a service necessary for the general public welfare.

                      I also agree with you re: non-profit vs. for-profit.  This would have been a significant improvement over what we have now - a mandate to buy for-profit insurance.  (Although - dreaming here - it does not foreclose the creation of non-profit entities that can serve this purpose).  

                      My only point was that given the cards we've been dealt - the mandate - and given the political reality that that a GOP House won't agree to anything better (we both know how low their "socialism" threshold is), the mandate at least attempts to distribute the costs in a way that minimizes the fiscal impact (notice I did not say "equitably").

                      Taxes for the general public welfare is a far more effective way to provide public services; unfortunately, unlike the rest of the industrialized Western world, the right to health care access never made the list here.

                      The most violent element in society is ignorance.

                      by Mr MadAsHell on Wed Feb 02, 2011 at 03:36:31 PM PST

                      [ Parent ]

            •  Not everyone has to drive a car (4+ / 0-)

              People do need health care, though.

              Proud member of the Democratic Wing of the Democratic Party.

              by Betty Pinson on Wed Feb 02, 2011 at 02:20:51 PM PST

              [ Parent ]

            •  No your not! (1+ / 0-)
              Recommended by:
              wsexson

              If you don't own a car you don't have to have car Ins. What choice do we have with our bodies though? It's an apples and oranges argument. The two things are not at the same.

              "It's better to die on your feet then live on your knees" E. Zapata

              by Blutodog on Wed Feb 02, 2011 at 04:19:52 PM PST

              [ Parent ]

      •  Its possible (7+ / 0-)

        They may have created a model for future acts to funnel taxpayer funds for social services to the private sector.

        Proud member of the Democratic Wing of the Democratic Party.

        by Betty Pinson on Wed Feb 02, 2011 at 02:20:10 PM PST

        [ Parent ]

      •  Maybe the mandate is good, maybe bad. (3+ / 0-)
        Recommended by:
        Cartoon Peril, Dirtandiron, Loge

        But it's Constitutional and, as such, should not be struck down.

        Courts have no business striking something down because it's bad policy.

        The most violent element in society is ignorance.

        by Mr MadAsHell on Wed Feb 02, 2011 at 02:42:00 PM PST

        [ Parent ]

      •  You really believe the repubs would try to... (0+ / 0-)

        ...mandate privatization of social security and all the other fundamentals of our society you listed??? and Pres. Obama would not veto them...much less the senate? I just don't see it happening.

        Our nations quality of life is based on the rightousness of its people.

        by kalihikane on Wed Feb 02, 2011 at 03:07:54 PM PST

        [ Parent ]

    •  Hate the mandate but if you want universal access (4+ / 0-)
      Recommended by:
      Blutodog, Cartoon Peril, Dirtandiron, Loge

      under the current for profit system you kinda need it to make all the inefficient cogs go round.  

      And no...simply pointing out this fact doesn't mean that I don't favor a single payer system. (I actually live in a country with one)

      1964 Cassius Clay vs Sonny Liston, 1997 Masters Tiger Woods vs Field, 2008 Barack Obama vs Field

      by ZenMaster Coltrane on Wed Feb 02, 2011 at 02:06:32 PM PST

      [ Parent ]

      •  It's time to recognize (4+ / 0-)
        Recommended by:
        Blutodog, skyounkin, zaka1, melpomene1

        if you want universal access under the current for profit system

        that some things are more important than profits for investors. When health care is only available on a for-profit basis, it is necessarily denied to those who cannot afford to pay. Now apply that principle to every necessary government service--education, just for starters.

        If the mandate stands, we will see the end of essential services being provided on a public, non-profit basis.

        Welcome to the New Feudalism.

        Al Qeada is a faith-based initiative.

        by drewfromct on Wed Feb 02, 2011 at 02:10:49 PM PST

        [ Parent ]

    •  Didn't Vinson specifically (3+ / 0-)

      say the mandate " to buy a commercial product" was unconstitutional?

      Which means he agrees that a mandate to buy state-sponsored insurance would be legal. The progressives who did not like the mandate would have no problem with it with the existence of a PO either.

      Our problem was being forced to buy inferior crap from Aetna, but we were told that was not pragmatic.

      "Only vigilance and resistance to this baby dictator, Barack Hussein Obama, can prevent the Khmer Rouge from appearing in this country." Michael Savage

      by bay of arizona on Wed Feb 02, 2011 at 02:12:56 PM PST

      [ Parent ]

      •  This evidences a misunderstanding (4+ / 0-)
        Recommended by:
        wsexson, drewfromct, nslander, squarewheel

        of the difference between the authority of state legislatures, which is plenary (they can do anything not prohibited) and Congress, which does not have plenary power.  Congress has only those enumerated powers identified in the Constitution.  That is why this bill lists one of Congress's enumerated powers -- its ability to regulate interstate commerce -- as the source of authority for the bill.  Of course, as the SCOTUS has held, there are limits to what Congress can do under its Commerce Clause authority. The question that has no answer yet is whether, under its Commerce Clause authority, Congress can force someone to ENTER interstate commerce in the first place.  All prior decisions have imposed regulatory authority AFTER a person has taken some action (growing wheat, for example) that puts him into a position where he is part of interstate commerce.  The Court has never held that just living in the U.S. means you are part of interstate commerce and subject to regulation on that ground.  

        •  A key question is who decides (0+ / 0-)

          where commerce begins or ends, courts or legislatures.  There are very good economic arguments that, as applied to health insurance, simply existing is being part of interstate commerce.  For cases that turn on empirical questions, the arguments for judicial restraint are stronger.  Anyway, as a matter of logic, both sides seem to agree that there's a substantial effect on insurance markets from people excluding themselves from risk pools, so how could something that's not an activity have any effect?  Otherwise, you're left arguing that because inacitivity is not commerce, it cannot have a substnatial effect on interstate commerce, and therefore does not have the effect it actually has.  

          Note, as well, I was able to articulate the issue using active verbs.  I guess I don't accept that the Constitutional issue is decided by whether we treat being insured or being uninsured as the default setting of existing, or that I accept that not having insurance is the default setting of existing in America.  I had insurance from birth from my mother's health plan.

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

          by Loge on Wed Feb 02, 2011 at 02:50:00 PM PST

          [ Parent ]

        •  Everyone accesses the health care system sooner (1+ / 0-)
          Recommended by:
          Loge

          or later.  And that system is clearly a matter of interstate commerce.  

          You have exactly 10 seconds to change that look of disgusting pity into one of enormous respect!

          by Cartoon Peril on Wed Feb 02, 2011 at 03:14:56 PM PST

          [ Parent ]

      •  I thought escalating price/cost was the prime... (0+ / 0-)

        ...mover as senior mgmt was rewarding themselves with multi-millions bonuses etc...on the backs of people who could not afford the price but could not be without health/medical insurance.

        Our nations quality of life is based on the rightousness of its people.

        by kalihikane on Wed Feb 02, 2011 at 03:49:37 PM PST

        [ Parent ]

    •  They should take a page (2+ / 0-)
      Recommended by:
      Cartoon Peril, Mr MadAsHell
      from Oliver Wendell Holmes, "if my fellow citizens want to go to Hell, I will help them.  It's my job."

      I don't think the mandate is either as good or as bad as people make it out to be.  As long as the insurance is regulated in such a way that there's actual coverage there, and provided there's some sort of hardship waiver for the fine, in the event that the cost measures don't work, nobody is actually harmed by it.  You pay a premium but you get insurance.  Paradoxically, that means a mandate might not be all that necessary, since it's in most people's best interest to have insurance.  The mandate is important to HCR since it's the means by which it can still be profitable to cover preexisting conditions -- a bigger pool for more coverage.  But I think there could be ways around it.

      Ideally, we'd have a public option that everyone's automatically enrolled in, but they can opt out and go for some other plan, if they wished.  That way, insurance plans would actually compete on service.  A boy can dream . . .

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

      by Loge on Wed Feb 02, 2011 at 02:31:05 PM PST

      [ Parent ]

      •  But (1+ / 0-)
        Recommended by:
        Van Buren

        You pay a premium but you get insurance.

        having insurance is not the same as having health care. Insurance is merely a promise by a company to pay your medical bills--under certain conditions. As we've seen over and over again, those companies have a vested interest in finding ways and means to not pay on claims. They have a vested fiduciary interest in denying access to care. Forcing people to purchase for-profit insurance from companies which derive said profits through denial of care does not lead to better health.

        The mandate says that we all have to buy insurance. Where does it say that the insurance companies have to pay out on claims?

        Al Qeada is a faith-based initiative.

        by drewfromct on Wed Feb 02, 2011 at 02:47:10 PM PST

        [ Parent ]

        •  Do you know what's in the bill? (0+ / 0-)

          There are bans on lifetime caps, rescissions of coverage for preexisting conditiosn, and mandated medical loss ratios, meaning insurers have to spend a certain percentage of their income on coverage.

          I even expressed a certain degree of skepticism about these things: "As long as the insurance is regulated in such a way that there's actual coverage there . . ."  

          But the assessment that universal or near-universal coverage, even through private insurers, makes everyone better off is one Congress can reasonably and rationally make.  That has nothing to do with its Constitutionality, either.  Congress's power does not expand or contract with whether or not a bill is a good one.  That's the worldview of the conservative justices who position themselves as superlegislatures.  

          There is a different analysis when there are civil rights invovled, but I don't think there's any due process right implicated by HCR for the very reason that, as the bill is written, you get insurance, not air.  If the insurers manage to find loopholes, the issue might be different and there could be valid Constitutional arguments against a mandate.  But you can't litigate that 3 years out.  

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

          by Loge on Wed Feb 02, 2011 at 02:56:42 PM PST

          [ Parent ]

    •  It's not stupid. There are plenty of uninsured (2+ / 0-)
      Recommended by:
      Cartoon Peril, Loge

      that can afford insurance. If we don't include them
      where will the money come from for universal coverage?

  •  Oh snap. nt (0+ / 0-)

    This space intentionally left blank.

    by peterborocanuck on Wed Feb 02, 2011 at 02:01:00 PM PST

  •  Nobody is forcing anyone to buy health insurance. (2+ / 0-)
    Recommended by:
    jazzmaniac, Loge

    There are tax penalties if you don't. But the insured that are paying over $1000.00 a year in extra premiums to cover the uninsured are not protected. And all the tax dollars we pay to protect the uninsured are not protected either.

  •  This is what (3+ / 0-)

    I thought would happen.  They're using their newfound power to pursue complete and total bullshit legislation while Egypt burns and the Midwest is paralyzed by snow.  They are completely out of touch with reality, and it's becoming obvious.

    "Kos is so boring wonky I don't know how anyone can read it....but the left loves that boring wonky stuff..." -- some GOBP blogger

    by SteelerGrrl on Wed Feb 02, 2011 at 02:05:16 PM PST

    •  Obvious to those paying attention (1+ / 0-)
      Recommended by:
      drewfromct

      I'm unconvinced, after years of this exact same thing, that the American people will notice. The American people have, time and again, proven themselves to be Charlie Brown to the Republicans' Lucy with the football.

      And many Democrats have followed suit, too.

      I've never held out hope that people will notice these things ... even things that are close to their own self-interest. (Why, for example, to middle-class or lower-middle class people vote Republican, when all that party does is dole out tax cuts to billionaires?)

  •  Using the sweeping nature of the decision itself (0+ / 0-)

    to show that the mandate is necessary and proper!

    Damn, there are times when I loves me some conservative lawyers!

    Give me your tired, your poor, Your huddled masses yearning to breathe free
    ¡Boycott Arizona!

    by litho on Wed Feb 02, 2011 at 02:05:27 PM PST

  •  Charles Fried gets one right every now and then (1+ / 0-)
    Recommended by:
    Loge

    "Politics is like driving. To go backward put it in R. To go forward put it in D."
    I support Bob Massie for US Senate

    by TrueBlueMajority on Wed Feb 02, 2011 at 02:06:33 PM PST

  •  Uh oh... (3+ / 0-)
    Recommended by:
    AggieDemocrat, Dirtandiron, Loge

    Mr. Fried is going to lose his secret conservative Reaganworld decoder ring for saying things like that about the health care law.

  •  Do the right thing (5+ / 0-)

    This will gratify some people and astonish the rest.

    It appears that legally and practically the public option is on stronger footing than the mandate.

    In theory, there is no difference between theory and practice; but in practice, there always is a difference. - Yogi Berra

    by blue aardvark on Wed Feb 02, 2011 at 02:14:43 PM PST

  •  Note to Democrats (6+ / 0-)

    A large, large portion of the people who express disapproval of the Affordable Care Act do so because it didn't go far enough.

    Stop kowtowing to Republicans and give the American people the health care they want and deserve!

  •  "Some democrats are exploring alternatives" (4+ / 0-)

    Step 1: Elect a Democratically controlled House
    Step 2: Legislation stalls in the Senate because of Baucus, Nelson, et. al
    Step 3: Give up and wait 10-20 years. Get used to people being kicked off insurance again.

    If this is ruled unconstitutional, sick people are well and truly fucked.

    Proud supporter of nuclear power!

    by zegota on Wed Feb 02, 2011 at 02:16:00 PM PST

  •  Damn Skippy (5+ / 0-)

    Let's use this to go back to what we should have done in the first place -- expand Medicare to anyone under 65 that wants to pay premiums (calculated to let the system run at-cost) and purchase it.

    There comes a time when every team must learn to make individual sacrifices.

    by Jaxpagan on Wed Feb 02, 2011 at 02:16:48 PM PST

  •  Sigh. I don't know why people keep lining up (4+ / 0-)

    names who say that it either is constitutional (if you are on the left) or it is not (if you are on the right).

    The bottom line is that there is no precedent directly on point.  This is the first time that Congress has used its Commerce Clause authority to mandate that individuals must buy a specific product from a private company or pay a penalty.  So, there is no "answer" at this point -- there's only opinion, from prior cases that have upheld certain kinds of laws as proper under the Commerce Clause (ex. Reich), and other cases that have put limits on what Congress can do under the Commerce Clause (ex. Lopez).  In other words, from prior SCOTUS cases, both sides can find support for a cogent argument.  But, at this point, all either side has is argument.  There is no "answer."  

    This expert or that scholar saying it is, or is not, constitutional means nothing.  Nada.  Zilch.  The only thing that matters is what view can get five votes on the SCOTUS.  And, if you read the 4 opinions on this so far, those striking the law, like Vinson, are tailor-made for the conservative, original intent types like Scalia, Thomas, Alito, and Roberts.  Those upholding the law do so under the expansive reading of the Constitution favored by Ginsburg, Breyer, Sotomayor and (assuming she doesn't recuse herself since this came up while she was SG) Kagan.  Thus, the only opinion that matters now is Anthony Kennedy's.  And let me give you a hint -- he doesn't care at all what Reagan's former SG, or any other expert, has to say.  He's going to make up his own mind.  

    Frankly, if I had to guess (given Kennedy's prior views) I'd guess that Kennedy's ultimate views on this case are going to be colored by the precedent the case sets with respect to limits on the power of Congress. He's a pragmatist.  In other words, a crucial question I suspect, from Kennedy's view, is going to be this:  What are the limits of Congress' power under the Commerce Clause?  The proponents of the law are going to have to give him a good answer to that question, I think, to get his vote.  

    My two cents.  But of course, it matters not what I, or you, or this person, or that person, thinks.  All that matters is five votes on the SCOTUS.  

    •  Fried is making a normative claim, (0+ / 0-)

      not a descriptive one.  The Court can say what it wants, but I don't necessarily accept that a group of 5 superannuated lawyer-politicans have the power to make an interpretation right or wrong, better or worse.  They can decide cases, and those cases become precedential, but they can and do make bad decisions all the time.  

      The Court also makes a point of hearing cases that are questions of first impression.  That doesn't mean they decide all cases from first principles.  Fried is making an argument that, based on the long time historical understanding of the Commerce Clause, it's Constitutional.  He's using the same materials as Judge Vinson but applying them in a way that he sees are the better "fit," as Dworkin would say.  (And from everything I've read about John Marshall, he'd recognize himself in Fried's comments more than in Vinson's opinion.)

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

      by Loge on Wed Feb 02, 2011 at 03:06:20 PM PST

      [ Parent ]

      •  I guess where I have an issue (1+ / 0-)
        Recommended by:
        Loge

        is how people react to these kinds of things on places like this.  There's a sense of "well, THAT shows you!  That settles it!  it's a no-brainer!"  when it's not like that at all.  

        •  In this case, (0+ / 0-)

          I think it's interesting to a lot of people because Charles Fried is conservative and was one of Reagan's solicitors general.  if "he" thinks it, it must be true.  Not sure i buy it.  Scalia's confrontation clause jurisprudence, for instance.  He zigs left where i would zag right.

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

          by Loge on Wed Feb 02, 2011 at 03:33:49 PM PST

          [ Parent ]

    •  Well put (1+ / 0-)
      Recommended by:
      wsexson

      That so many people with whom I usually agree are reflexively appealing to authority on the Constitutionality of this unprecedented expansion of ISC is distressing.

      I think the answer as to WHY this is so pervasive might be illuminating, and I don't think the answer is intellectual laziness.  Instead, I suspect many of us were so desirous of a net societal good and a political victory that some are repressing guilt for compromising principles and others are reluctant to admit they really didn't flesh out the potential consequences.  Now they're in denial as to the legal and political realities we currently face.    

      If we had supported only what we knew to be not just any colorably legal, but rather the clearly legal and MORAL course, we would not have risked continuing our national health care crises to the personal beliefs of Anthony Kennedy.  This reality is starting to dawn on many people, causing them to hide behind what Legal Scholar X has to say, rather than simply admitting the chosen course guaranteed the crisis' future remains uncertain.

  •  I suppose health insurance is one thing, but (0+ / 0-)

    where is the line, where does that stop as far as the power of Congress to set the rules of commerce?  

    S.A.W. 2011 STOP ALL WARS "The Global War on Terror is a fabrication to justify imperialism."

    by BigAlinWashSt on Wed Feb 02, 2011 at 02:26:37 PM PST

  •  the government has already had mandatory (2+ / 0-)
    Recommended by:
    maracucho, Dirtandiron

    health insurance.
    Way back when the government mandated that sailors have health insurance.

    In July of 1798, Congress passed – and President John Adams signed - "An Act for the Relief of Sick and Disabled Seamen." The law authorized the creation of a government operated marine hospital service and mandated that privately employed sailors be required to purchase health care insurance.

    Back then, the President knew international trade would benefit the country. many of the sailors engaged in sailing the trade routes were private (merchant seamen) and that they were prone to injury from their job, as well as possibly bringing back diseases from far-off places.

    First, it created the Marine Hospital Service, a series of hospitals built and operated by the federal government to treat injured and ailing privately employed sailors. This government provided health care service was to be paid for by a mandatory tax on the maritime sailors (a little more than 1% of a sailor’s wages), the same to be withheld from a sailor’s pay and turned over to the government by the ship’s owner. The payment of this tax for health care was not optional. If a sailor wanted to work, he had to pay up.

    It's not the first time. And who know...perhaps if it had been expanded over time, we would already have universal single-payer health care.
    Then again, maybe not.

  •  I have really good company paid health insurance (3+ / 0-)
    Recommended by:
    Dirtandiron, Loge, james321

    I want everyone to have the same.  I have lived close to the edge the past several years as I raised two kids by myself.  I can barely log onto Kos when I read about the efforts to kill what universal healthcare (by no means definitive) is available in this bill. As an atheist I pray all Republican efforts to ruin the bill fail.

  •  Enogh is Enough. (2+ / 0-)
    Recommended by:
    Dirtandiron, Mr MadAsHell

    I am so tired of Republicans trying to dismantle our government -- our only ability to govern ourselves.

    Money quote I found today:

    And it always results in victory for one side and defeat for the other. It’s set up to do that. It’s imported the worst excesses of market fundamentalism into the one arena that used to be safe from them, the one part of our public and social life that used to be free of the commercial pressure to win or to lose, to survive or to die, which is the very essence of the religion of the market. Like all fundamentalists who get their clammy hands on the levers of political power, the market fanatics are going to kill off every humane, life-enhancing, generous, imaginative and decent corner of our public life. I think that little by little we’re waking up to the truth about the market fanatics and their creed.

    --Philip Pullman

  •  Diary tomorrow, but here's the single-payer plan. (2+ / 0-)
    Recommended by:
    Roger Fox, Mr MadAsHell

    1.) Federal government creates an "opt-in" public option to satisfy constitutional issues.

    2.) Most blue states in country create robust public options (like Sustinet in CT).

    3.) California and NY create robust public options.

    4.) Half of all states start sucking everyone into public option systems (i.e. plans covering state employees, retirees, municipal govt, small biz, individuals, pre-existing...everyone in one pool).

    5.) When all the blue states have started crushing private insurance markets in their big, well-populated states, big-profit insurers like CIGNA and Aetna will realize that it is no longer worth it to sell basic health insurance...especially in the poor, red states where they are left to operate without public option competition.

    6.) States have de facto single-payer systems.

    7.) Eventually, state-based public options are federalized ala Medicaid.

    8.) Good bye you fucking bastards at Aetna.

  •  I worked with Charles Fried years ago (2+ / 0-)
    Recommended by:
    Dirtandiron, Loge

    at Boston Children's Hospital- he advised the human studies committee. He was conservative, but very sane and willing to discuss complex issues. Wages of Merchant Seamen were garnished for health insurance starting in 1798- all merchant seamen were compelled to pay for insurance. There was no question about its constitutionality, but there were complaints that seamen were unfairly picked on.

  •  Thanks to Obama dropping the public option, (0+ / 0-)

    we are left with having to defend the mandate, instead of defending the public option or medicare for all, or making making the case for single payer.

    A Democratic-leaning Rational-Libertarian Liberal.

    by kickass on Wed Feb 02, 2011 at 02:40:54 PM PST

  •  IMPEACH Roberts, Alito, Scalia,& Thomas (2+ / 0-)
    Recommended by:
    Dirtandiron, TofG

    Perjuring bastards lied under oath at senate confirmation hearings!

    Roberts is an asshole and an ultraconservative rethug activist corporatist (fascist NeoNazi) "judge" with no respect for the Constitution.  His rulings are poorly reasoned and just plain idiotic.  He denied under oath at his confirmation hearings that he would be an activist judge, and he should be impeached because of it.

    Alito is a total asshole and an ultraconservative
    rethug activist corporatist (fascist NeoNazi) "judge" with no respect for the Constitution.  His rulings are poorly reasoned and extremely stupid.  We could have found roadkill or mud puddles smarter than him.

    Scalia is a right-wing nutjob who would allow all sorts of discrimination because he's a strict constructionist who would return us to the days when rights for only white Anglo-Saxon protestant males existed (women counted as 3/5 of a person -- you can see the wisdom of a West Point honors graduate with a Yale Law School juris doctorate; our Founding Fathers owned slaves -- ditto for West Point & Yale Law).
    He's clearly UNFIT for the bench, including a public park bench.  He's a threat to this country.
    (Scalia would also be a 5th class citizen according to his asinine "judicial" interpretation of our Constituion since Italians had no rights specifically guaranteed in the Constituion, including immigration to America.  What an insane idiot!)

    Thomas is a sexual predator who harassed and intimidated Anita Hill and every other woman employed at the Equal Employment Opportunity Commission, and then he lied about it under oath at his confirmation hearing.
    Thomas is also a black teabagger rethug corporatist(Not too many of those critters exist for obvious reasons.) and former Monsanto corporate lawyer who breached his ethics by hiding his white teabagging wife's obscene professional teabagging income, routinely ruling on cases requiring his recusal, and violating subordinates' and litigants' Constitutional and civil rights.
    He should be impeached immediately.  

  •  The health care bill is a piece o crap (1+ / 0-)
    Recommended by:
    drewfromct

    they shouldn't have backed down on the public option and they shouldn't be forced to give everyone a waiver. The mandate is unconstitutional. It is the same as mandating everyone to purchase a bible. They should have done it right from the start.

  •  Reagan's Solicitor General? (2+ / 0-)
    Recommended by:
    drewfromct, Loge

    These conservative Repubs and teapartiers today make Reagan and those that were around him seem moderate and reasonable, if not downright liberal.

    Where are all the jobs, Boehner?

    by Dirtandiron on Wed Feb 02, 2011 at 02:53:08 PM PST

  •  Hmmmm..... (2+ / 0-)
    Recommended by:
    drewfromct, melpomene1

    According to Fried's interpretation of the Constitution, the United States government could pass a law mandating the purchase of vegetables too.

    Sen. Durbin: The point raised by Senator Lee – the “buy your vegetables, eat your vegetables” point? I’d like you ask to comment on that because that is the one I’m hearing most often. By people who are saying “Well, if the government can require me to buy health insurance, can it require me to have a membership in a gym, or eat vegetables?” We’ve heard from Professor Dellinger on that point, would you like to comment?

    Prof. Fried: "Yes. We hear that quite a lot.  It was put by Judge Vinson, and I think it was put by Professor Barnett in terms of eating your vegetables, and for reasons I set out in my testimony, that would be a violation of the 5th and the 14th Amendment, to force you to eat something. But to force you to pay for something? I don’t see why not.  It may not be a good idea, but I don’t see why it’s unconstitutional."

    •  I don't think you're reading him correctly... (1+ / 0-)
      Recommended by:
      Loge

      He says that mandating citizens to eat vegetables violates the 5th and 14th amendments. Mandating citizens to buy something, based on the commerce clause, is constitutional....may not be advisable, but it is constitutional.

      You really need to watch the entire hearing that was televised on CSPAN today.

      •  What I Typed..... (1+ / 0-)
        Recommended by:
        drewfromct

        "According to Fried's interpretation of the Constitution, the United States government could pass a law mandating the purchase of vegetables too."

        If you can argue the United States government can mandate (and tax in a way to control) the kind of food individuals buy & consume, or choose not to buy & consume, under the Commerce Clause, then what you're basically saying is there are no limitations to the Commerce Clause.

  •  If, after all this, (1+ / 0-)
    Recommended by:
    TofG

    the mandate gets replaced with the public option, I will reimburse the WH for the cost of one 11-dimension chess board.

    The only newscaster on Fox that you can trust is Kent Brockman.

    by Van Buren on Wed Feb 02, 2011 at 03:05:55 PM PST

  •  Sen. Franken in hearing today on ACA (1+ / 0-)
    Recommended by:
    TofG

    To paraphrase, if A=B and B=C and C=D, then A=D.

    He was commenting on the fact that when this goes before the Supreme Court, and the Supreme Court ultimately judges on constitutionality and on the subsequent rulings of previous Supreme Courts which based their rulings on constitutionality, then the very last ruling by the Supreme Court on the commerce clause is based on the original commerce clause in the original document.

    It was brilliant and simple all at the same time. It throws cold water on the claim of the strict constitutionalists that this interpretation of the commerce clause defies the founders intent in the original document.

    •  Franken also stated several times (1+ / 0-)
      Recommended by:
      TofG

      in a very astute tone that he didn't go to law school and wasn't a lawyer boldly placing himself apart from the panel and firmly in the average joe camp like many of the would-be appealers of the law. He implied he was not scholarly....just smarter than the average teabagger. That play, too, was brilliant!!!!

    •  Franken put in place (0+ / 0-)

      a framework for the Supremes that, if they care about the credibility of the body, they should tread lightly over Supreme Court precedent.

      Excellent set-up, Senator. I'll be watching Scalia, et al. I'm sure I'll be disappointed, but for now, in this moment, I'm reveling in your gamesmanship.

      Franken may not be a lawyer, but he is extrordinarily intelligent...but we all knew that already.

  •  So Reagan was a socialist for picking a socialist (0+ / 0-)

    Solicitor General who is sure that a "socialist HCR bill" is constitutional

    Republicans secret dream = the impeachment of Bo the Dog LOL

    by LaurenMonica on Wed Feb 02, 2011 at 04:49:38 PM PST

  •  question (0+ / 0-)

    if i refuse to buy health insurance, i can be fined. if i refuse to pay the fine, can a lien be put on my house or could i be subject to imprisonment?

    do you really think the govt would resort to either? and not to expect an uprising?

    in my case, i have insurance thru my employer. and yes, i would like to see all buy it like i have to. but i just trying to understand the ultimate enforcement mechanism.

    "Whenever you find yourself on the side of the majority, it is time to pause and reflect." ~ Mark Twain

    by VoiceFromIowa on Wed Feb 02, 2011 at 05:10:27 PM PST

  •  Can I cancel my car insurance?? (0+ / 0-)

    If it's unconstitutional for the government to require us to buy insurance, how can my state charge a fine of $250 per day for driving without car insurance?

  •  he's still wrong. (2+ / 0-)
    Recommended by:
    Roger Fox, nslander

    He's asserting that the Commerce Clause gives the federal government an affirmative right to compel individuals to engage in interstate commerce against their will, and to compel individuals to purchase products from private companies.  

    Think about that for a moment.  

    If that stands up, then every time government finds a rational basis, it can compel you to buy something specific from a specific set of private companies.  

    Anyone who doesn't think there'll be an awful lot of snouts lined up at that trough, ready to compel your labor to buy their products, is smoking the green stuff without a prescription.  

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