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page 2 of the Constitution
Article !, Section 8 of the Constitution is the relevant provision. Can you read it?

Today the Supreme Court will hear argument (a very long argument) on the central issue in the challenges to the Affordable Care Act: whether the individual mandate—which requires all covered persons (exemptions are allowed for persons unable to afford to purchase insurance) to obtain health insurance, be it through an employer plan, a public insurance program (Medicare, Medicaid or Veterans coverage), or by purchasing insurance individually (on the open market or through an exchange)—is constitutional.

The Obama administration has consistently argued that the the individual mandate is essential to the effectiveness of ACA and indeed, will argue that if the individual mandate is ruled unconstitutional, then the ban on preexisting conditions, minimum expenditures on health care, and other essential regulatory protections for health insurance consumers must fall with it, as they are inextricably intertwined with the individual mandate.

The issue could also raise fundamental questions regarding our modern federal government. If the Court chooses to issue sweeping doctrinal formulations of the Commerce Clause and the Necessary and Proper Clause, or appeals to liberty of contract interests in striking down the individual mandate, the very foundations of our modern government could be at risk. Such a decision could challenge the basis of our modern federal administrative state. Questions regarding the EPA, Medicare, Social Security, and other federal agencies and regulatory regimes would be reopened. It could lead to a reversal of the 1937 transformation of our national government.

At the very least, an adverse ruling on the individual mandate would gut the achievement of the Obama administration, the Affordable Care Act.

It is not exaggeration to say that this could be the most important case in terms of the constitutional doctrine of our system of government since the New Deal cases.

(Continue reading below the fold)

Now, on to the legal question:

(2) Whether Congress had the power under Article I of the Constitution to enact the minimum coverage provision, the individual mandate.

The Article 1 power the question is referring to springs from just a few words in the Constitution:
The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises [... and] To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes [...]  And To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.
Those are the words everyone is arguing about. Of course, the meaning of those words has been discussed in millions of new words. What is the Commerce power? When is Congress exercising the Spending Power (implied from the taxing power)? What is the "Necessary and Proper" power? The long history of argument and interpretation of these words makes it necessary to emphasize some key decisions without providing a full history.

The question of the Commerce power was first substantially elucidated by the Court in the case Gibbons v. Ogden. There are two passages in Gibbons of particular note. The first:

This instrument contains an enumeration of powers expressly granted by the people to their government. It has been said that these powers ought to be construed strictly. But why ought they to be so construed? Is there one sentence in the Constitution which gives countenance to this rule? In the last of the enumerated powers, that which grants expressly the means for carrying all others into execution, Congress is authorized "to make all laws which shall be necessary and proper" for the purpose. But this limitation on the means which may be used is not extended to the powers which are conferred, nor is there one sentence in [p188] the Constitution which has been pointed out by the gentlemen of the bar or which we have been able to discern that prescribes this rule. We do not, therefore, think ourselves justified in adopting it. What do gentlemen mean by a "strict construction?" If they contend only against that enlarged construction, which would extend words beyond their natural and obvious import, we might question the application of the term, but should not controvert the principle. If they contend for that narrow construction which, in support or some theory not to be found in the Constitution, would deny to the government those powers which the words of the grant, as usually understood, import, and which are consistent with the general views and objects of the instrument; for that narrow construction which would cripple the government and render it unequal to the object for which it is declared to be instituted, and to which the powers given, as fairly understood, render it competent; then we cannot perceive the propriety of this strict construction, nor adopt it as the rule by which the Constitution is to be expounded.
This formulation of constitutional interpretation formulated by the greatest chief justice, John Marshall, now nearly 200 years old, has never been accepted by conservative legal scholars. But it has been central to the Court's interpretation of the Commerce power. In Gibbons, Chief Justice Marshall stated:
What is this [Commerce] power? It is the power to regulate, that is, to prescribe the rule by which commerce is to be governed. This power, like all others vested in Congress, is complete in itself, may be exercised to its utmost extent, and acknowledges no limitations other than are prescribed in the Constitution.
The regulation of the national health insurance market is clearly an exercise within the Commerce power. The states challenging ACA and the individual mandate do not say otherwise. Their arguments are based on viewing the individual mandate and penalty provisions in isolation and in on federalism arguments (the argument is that portions of the law impinge on the rights of states).

The private challengers have a more expansive attack on ACA, arguing that the federal government is not empowered to regulate the national health insurance market. Thus, in their brief (PDF), the private challengers argue:

The Commerce Clause [...] “was intended as a negative and preventive provision against injustice among the States themselves, rather than as a power to be used for the positive purposes of the General Government.” W. Lynn Creamery, Inc. v. Healy, 512 U.S. 186, 193 n.9 (1994). Similarly, the Necessary and Proper Clause was “not itself a grant of power, but a caveat that the Congress possesses all the means necessary to carry out [its] specifically granted … powers.” Kinsella v. United States ex rel. Singleton, 361 U.S. 234, 247 (1960); see also McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, 406, 420-21 (1819) (the clause “remove[s] all doubts respecting … incidental powers”). [Emphasis supplied.]
This is, to put it bluntly, a radical view. If adopted by the Court, it would cause the dismantling of our modern federal government, INCLUDING all federal criminal laws. For it is the Commerce power that underpins the creation of Social Security, Medicare and the EPA. It is the Commerce power that underpins most of federal criminal law.The argument of the private challengers asks for a return to our pre-1937 federal government.

Regarding the Commerce power, the challenging states are not so bold in their brief (PDF):

The Constitution grants Congress the power to regulate commerce, not the power to compel individuals to enter into commerce. That distinction is fundamental. A power to regulate existing commercial intercourse is precisely what the framers sought to confer upon the new federal government. The power to compel individuals to enter commerce, by contrast, smacks of the police power, which the framers reserved to the States.[...] If Congress not only can regulate individuals once they decide to enter into commerce, but can compel them to enter commerce in the first place, then there is nothing left of the principle that Congress’ powers “are defined, and limited,” Marbury v. Madison, 5 U.S. 137, 176 (1803), as Congress could simply force within its regulatory reach all those who would remain outside it.
There are no grand pronouncements regarding the limited nature of the Commerce power. Instead, the states forward a less radical argument: The federal government is not regulating commerce with the individual mandate; rather, it is compelling commerce (the purchase of health insurance). (Side note: It is interesting how the "liberty" concern falls by the wayside when it comes to States mandating the purchase of health insurance.)

This is a necessary concession in practical terms as well as in constitutional terms. Why? Because of the Necessary and Proper Clause, which is, in my view, the critical provision regarding ACA and the individual mandate. In the 1819 case, McCulloch v. Maryland, Chief Justice Marshall explained the Necessary and Proper Clause:

[T]he Constitution of the United States has not left the right of Congress to employ the necessary means for the execution of the powers conferred on the Government to general reasoning. To its enumeration of powers is added that of making 'laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the Government of the United States or in any department thereof.' [...]

[T]he Constitution must allow to the national legislature that discretion with respect to the means by which the powers it confers are to be carried into execution which will enable that body to perform the high duties assigned to it in the manner most beneficial to the people. Let the end be legitimate, let it be within the scope of the Constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consistent with the letter and spirit of the Constitution, are Constitutional.

In a concurring opinion in Gonzales v.Raich, Justice Scalia explained his view of the Necessary and Proper clause:
Congress’s authority to enact laws necessary and proper for the regulation of interstate commerce is not limited to laws directed against economic activities that have a substantial effect on interstate commerce. Though the conduct in Lopez was not economic, the Court nevertheless recognized that it could be regulated as “an essential part of a larger regulation of economic activity, in which the regulatory scheme could be undercut unless the intrastate activity were regulated.” 514 U.S., at 561. This statement referred to those cases permitting the regulation of intrastate activities “which in a substantial way interfere with or obstruct the exercise of the granted power.” Wrightwood Dairy Co., 315 U.S., at 119; see also United States v. Darby, 312 U.S. 100, 118—119 (1941); Shreveport Rate Cases, 234 U.S., at 353. As the Court put it in Wrightwood Dairy, where Congress has the authority to enact a regulation of interstate commerce, “it possesses every power needed to make that regulation effective.” 315 U.S., at 118—119.

Although this power “to make … regulation effective” commonly overlaps with the authority to regulate economic activities that substantially affect interstate commerce,2 and may in some cases have been confused with that authority, the two are distinct. The regulation of an intrastate activity may be essential to a comprehensive regulation of interstate commerce even though the intrastate activity does not itself “substantially affect” interstate commerce. Moreover, as the passage from Lopez quoted above suggests, Congress may regulate even noneconomic local activity if that regulation is a necessary part of a more general regulation of interstate commerce. See Lopez, supra, at 561. The relevant question is simply whether the means chosen are “reasonably adapted” to the attainment of a legitimate end under the commerce power. See Darby, supra, at 121.

Justice Scalia's language is sweeping: there is not a "substantial effects" test for the exercise of the Necessary and Proper clause when the regulation of a conduct is "an essential part of a larger regulation of economic activity, in which the regulatory scheme could be undercut unless the intrastate activity were regulated." Like the individual mandate is to ACA. What to do in the face of this broad pronouncement? What fig leaf can be offered to Justice Scalia? The activity/non-activity distinction.

What is the activity/non-activity distinction, and is it supported by any case law (other than decisions on ACA)? Here is how the state challengers describe it:

The provisions immediately surrounding the Commerce Clause confirm that the power to regulate does not encompass the power to create the thing to be regulated. In the only two other provisions of Article I, section 8 that grant Congress a power to regulate, the Constitution first grants Congress the separate power to bring into existence the object of regulation. [...] While Congress unquestionably has the power to regulate (and perhaps “direct” or “command”) individuals when they choose to participate in commerce, that is a far cry from the power to command individuals to enter into commerce in the first place. Cf. New York v. United States, 505 U.S. 144, 176 (1992) (recognizing distinction between permissible regulation of States’ participation in commerce and impermissible “command[s] to state governments” to regulate commerce).
While the state challengers drone on for 50 pages or more in this vein, that is the argument. But what of the Necessary and Proper clause? What of Justice Scalia's admonition that the Necessary and Proper clause empowers the federal government to regulate when the regulation of a conduct is "an essential part of a larger regulation of economic activity, in which the regulatory scheme could be undercut unless the intrastate activity were regulated"?

The state challengers argue:

The power to compel individuals into commerce is exercised not to effectuate regulation of existing commerce, but rather to create commerce so that Congress may regulate it. That is a “great substantive and independent power”—indeed, as noted, it is a power that would rival if not exceed the power to “raise and support armies” in degree of controversy—that “cannot be implied as incidental to” the power to regulate commerce. Id.

The federal government maintains the mandate is not an end in itself, but merely a means of “mak[ing] effective the Act’s core reforms of the insurance market,” namely, the guaranteed issue and community ratings provisions. Govt.’s Br. 24. That argument distorts the concept of a law that serves “the purpose of effecting something else.” McCulloch, 17 U.S. at 411. The problem with the guaranteed issue and community ratings provisions is not that they would be ineffective without the individual mandate. Quite the contrary, the problem is that those provisions would work far too well—many would “tak[e] advantage of” those guarantees by “‘wait[ing] to purchase health insurance until they needed care.’” Govt.’s Br. 29 (quoting ACA § 1501(a)(2)(I)). Congress deemed the mandate necessary to counteract the effectiveness of those provisions by forcing individuals to purchase a product they may neither want nor need. The Constitution authorizes Congress to “carry[] into Execution” its enumerated powers, not to expand its enumerated powers by creating problems in need of extraconstitutional solutions. See Raich, 545 U.S. at 38 (Scalia, J., concurring) (“the power to enact laws enabling effective regulation of interstate commerce … extends only to those measures necessary to make the interstate regulation effective”).

This is certainly one of the weakest arguments I've seen. In essence, the state challengers are arguing that Congress was wrong to consider the individual mandate as necessary to ACA. But the Supreme Court is not in the business of deciding whether Congress is right or wrong in its policy rationales and decisions. As the Court articulated in the 2010 case United States v. Comstock, the exercise of a Necessary and Proper power is judged on a rational basis test:
We have since made clear that, in determining whether the Necessary and Proper Clause grants Congress the legislative authority to enact a particular federal statute, we look to see whether the statute constitutes a means that is rationally related to the implementation of a constitutionally enumerated power. Sabri v. United States, 541 U. S. 600, 605 (2004) (using term “means-ends rationality” to describe the necessary relationship); ibid. (upholding Congress’ “authority under the Necessary and Proper Clause” to enact a criminal statute in furtherance of the federal power granted by the Spending Clause); see Gonzales v. Raich, 545 U.S. 1, 22 (2005) (holding that because “Congress had a rational basis” for concluding that a statute implements Commerce Clause power, the statute falls within the scope of congressional “authority to ‘make all Laws which shall be necessary and proper’ to ‘regulate Commerce … among the several States’ ” (ellipsis in original)); see also  United States v. Lopez, 514 U. S. 549, 557 (1995); Hodel v. Virginia Surface Mining & Reclamation Assn., Inc., 452 U. S. 264, 276 (1981).
Aware of this problem, the state challengers engage in some hand waving:
A power to compel individuals to enter into commerce would amount to a plenary power to compel individuals to live their day-to-day lives according to Congress’ dictates. That is not a power “narrow in scope,” Comstock, 130 S. Ct. at 1964, but rather could be exercised as least as broadly as (and far more intrusively than) the commerce power itself. Congress could use such a power to control every “class” of decisions that has a substantial effect on interstate commerce, which is to say, nearly every decision. To read such an extraordinary and invasive power into the Constitution “would require [the Court] to conclude that the Constitution’s enumeration of powers does not presuppose something not enumerated,” Lopez, 514 U.S. at 567, which the Necessary and Proper Clause does not license the Court to do.
This is, in essence, the famous "make you eat broccoli argument." Of course the problem with this argument is that the right encompassed in the 14th Amendment would not allow willy nilly compulsion of action, even as part of a proper regulatory scheme. That would include, in my view, a requirement to eat broccoli.

One of the logical problems the state challengers face here is that the individual mandate does not raise any true federalism concerns; the individual mandate imposes no obligations on the "States qua States." The requirement is imposed on individuals. A nice federalism argument would have been right in the wheelhouse of the conservative justices. It just isn't available here.

So what do the state challengers offer to respond to Justice Scalia's concurrence? In my view, nothing but handwaving. The reality is the state challengers' appeal is a "they can't do that" argument. It is not truly a legal argument and has nothing in the case law to support it.

In its reply brief (PDF)—the government of course filed an opening brief (PDF)—the challengers restate all the arguments defending the individual mandate. The federal government responds to these arguments as you would expect:

In attacking the minimum coverage provision, and with it the entire Act, respondents seek to elevate a policy dispute over the means Congress chose to accomplish its concededly valid objectives-a means advocated for decades in national policy debates as a responsible free-market approach to meeting those objectives-into an issue of constitutional dimension. But respondents have identified no principle of constitutional law nor any precedent that would justify the grave step of overturning the judgments of the democratically accountable Branches of government about what means would best address the Nation's health-care crisis. Instead, respondents invite this Court to impose novel limits on Congress's Article I authority based on an intrusive and largely standardless approach to reviewing economic legislation that would mark a sharp departure from the approach this Court has historically followed. The Court should decline that invitation and uphold the Act.
Yes indeed, the challengers are asking for judicial activism of historic proportions. The federal government continues:
A law is "necessary" if it is "convenient, or useful, or essential" to the execution of an enumerated power. McCulloch, 17 U.S. (4 Wheat.) at 413. Once that standard is satisfied, further inquiry "into the degree of its necessity * * * would be to pass the line which circumscribes the judicial department, and to tread on legislative ground." I d. at 423. Private respondents nonetheless spend nearly half their brief demanding the very type of judicial second-guessing the Court has eschewed since McCulloch. NFIB Br. 28-56. They cite no decision from this Court invalidating a law on the ground that Congress erred in the legislation "necessary" to achieve its legitimate ends. Under the long-settled standard of review, McCulloch, 17 U.S. (4 Wheat.) at 413, the minimum coverage provision is plainly constitutional.
The federal government's reply also hammers home that the individual mandate raises no federalism concerns:
Respondents invoke New York v. United States, 505 U.S. 144 (1992), and Printz v. United States, 521 U.S. 898 (1997), but their reliance on those decisions underscores the misconceived nature of their argument.

In both cases, this Court emphasized that Congress may not commandeer States or their officers (and thereby infringe state sovereignty), but that the Constitution provides Congress "ample power" to exercise authority "directly upon the citizens." New York, 505 U.S. at 162 (citation omitted); see Printz, 521 U.S. at 919-921; U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779,838 (1995) (Kennedy, J., concurring). In the Affordable Care Act,
Congress used its "substantial powers to govern the Nation directly," New York, 505 U.S. at 162, by "acting directly on the people," McCulloch, 17 U.S. (4 Wheat.) at 404, in conformity with the constitutional structure.

It is therefore baffling that respondents contend that the Act compromises the constitutional value of accountability recognized in New York and Printz. There is no
doubt that "it will be federal officials that suffer the consequences if the decision turns out to be detrimental or unpopular." New York, 505 U.S. at 168.

In short, there is no true legal argument to defeat the constitutionality of the individual mandate. Federalism does not avail. Arguments that the Commerce power has been exceeded do not avail. Arguments that the Necessary and Proper power are exceeded do not avail. What's left? Liberty? But there is not liberty interest at stake here. The federal government's brief explains:
This would be an especially poor setting in which to invoke such generalized liberty-based notions, given that respondents assert a freedom of contract, NFIB Br. 61-62; cf. United States v. Darby, 312 U.S. 100, 125 (1941), in a context in which the uninsured are already engaged in the economic activity for which the minimum coverage provision governs the manner of payment. [...]  By their logic, a minimum-wage law impermissibly forces employers into "disadvantageous contracts." See Adkins
v. Children's Hosp., 261 U.S. 525, 544-562 (1923) (invaliding minimum-wage law because "[t]o the extent that the [wage] exceeds the fair value of the services rendered, it amounts to a compulsory exaction from the employer for the support of a partially indigent person"), overruled by West Coast Hotel Co. v. Parrish, 300 U.S. 379, 397-398 (1937). As the Court held in Wickard v. Filburn, 317 U.S. 111 (1942), "[t]he conflicts of economic interest between the regulated and those who advantage by [regulation] are wisely left under our system to resolution by the Congress under its more flexible and responsible legislative process." Id. at 129; see United States v. Rock Royal Co-op., Inc., 307 U.S. 533,572 (1939).
Yes, the specter of pre-1937 Supreme Court jurisprudence is invoked. The Court will surely not rely on the challengers' arguments on these points.

What's left? Where we started—the artificial activity/inactivity distinction. Is it supported in the case law and by logic? Certainly not, absent the invocation of a liberty of contract interest. But it will suffice, if the Court wants it to.

As Andrew Koppleman writes:

Now, it has been clear for some time that the most articulate opponents of the mandate (who include such formidable intellects as Richard Epstein, Randy Barnett, and Gary Lawson) have just this in mind. They despise the modern state and want to blow it up. But the Supreme Court has no such revolutionary ambitions. The challenge for the challengers of the law, then, is to come up with a theory that lets them win this case without committing the Court to the end of American civilization as we know it. Clement evidently could not figure out how to do that (other than – here he shows excellent sense – being coy about the implications of his argument). If you accept his brief’s logic, then it is not clear how, say, the Environmental Protection Agency could survive, since there is no enumerated power to keep the country’s air breathable or its water drinkable.

As I’ve noted in a different context, when a lawyer as good as Clement makes arguments this bad, it tells you a lot about how desperate his case is.

Regarding Clement's supposed "desperation," Koppleman concedes a lot of good faith to the Court. I am more sanguine.

The other question to be argued today involves whether the mandate and penalty are lawful exercises of the Taxing power. The federal government argues:

[R]espondents' attempt to artificially subdivide the minimum coverage provision-rather than read this single statutory section as one integrated whole establishing conditions for tax liability-fails. Functionally, Section 5000A is identical to the statute suggested by Judge Kavanaugh that would "definitively" be within Congress's tax power. Gov't Br. 60 (internal citation omitted); see License Tax Cases, 72 U.S. (5 Wall.) 462, 471-472 (1867) (discussed at Gov't Br. 57).

To the extent the constitutionality of Section 5000A depends on whether Subsection (a) creates an independent legal obligation, the Court should construe it not to
do so. Gov't Br. 61-62; see, e.g., License Tax Cases, 72 U.S. (5 Wall.) at 471. New York is directly on point. That case involved a provision that, read in isolation, appeared to establish a mandate ("[e]ach State shall be responsible for" disposing of radioactive waste), with separate provisions establishing "[p Jenalties" for failure to comply with that "[rJequirement[]." Gov't Br. 61-62 (internal citations omitted; first two pairs of brackets in original). To avoid a conclusion that the statute violated the Tenth Amendment, the Court interpreted it as creating financial incentives rather than a freestanding command backed by sanctions. I d. at 62. Section 5000A is structurally and functionally identical. It is implausible to suggest that it would be "plainly contrary to the intent of Congress," New York, 505 U.S. at 170 (citation omitted), to interpret the provision as establishing tax incentives to purchase health insurance rather than a separate statutory command to maintain insurance- especially given that the only consequence of failing to maintain insurance is the shared responsibility payment and that construing the provision in this way would not defeat any statutory objective. [...]

Respondents insist that Congress must expressly invoke its tax power in order to exercise it, so that it cannot "use the courts to impose taxes that it lacks the
political support to enact." States Br. 56. That remarkable suggestion is contrary to both the settled rule that "the fact that an exaction is not labeled a tax does not vitiate Congress's power under the Taxing Clause," and the equally settled principle that "[t]he question of the constitutionality of action taken by Congress does not depend on recitals of the power which it undertakes to exercise." Seven-Sky, 661 F.3d at 48 n.37 (Kavanaugh, J., dissenting) (citations omitted). Nothing in the Constitution justifies such judicial superintendence of the political dynamics of enacting legislation, whether in
Congress's exercise of its Article I powers in general or its tax power in particular. Compare Skinner v. MidAmerica Pipeline, 490 U.S. 212, 219-223 (1989) (no special
non-delegation limitation on Congress's exercise of tax power).

I have no opinion on the merits of this argument. Jack Balkin says it is a tax:
it is not actually a mandate. It is a tax, which people would not have to pay if they purchased health insurance. The House bill imposes a tax of 2.5% on adjusted gross income if a taxpayer is not part of a qualified health insurance program. The Senate bill imposes what is called an “excise tax” — a tax on transactions or events — or a “penalty tax” — a tax for failing to do something (e.g., filing your tax return promptly). The tax is levied for each month that an individual fails to pay premiums into a qualified health plan.

Congress has the power to pass legislation that falls within any of its powers enumerated in the Constitution. There are two obvious sources of congressional power. The first, described in the General Welfare Clause, is the 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.” The second, laid out in the Commerce Clause, is the power “to regulate commerce . . . among the several states.”

The individual mandate is a tax. Does it serve the general welfare? The constitutional test is whether Congress could reasonably conclude that its taxing and spending programs promote the general welfare of the country.1 This test is easily satisfied. The new health care reform bill insures more people and prevents them from being denied insurance coverage because of preexisting conditions. Successful reform requires that uninsured persons — most of whom are younger and healthier than average — join the national risk pool; this will help to lower the costs of health insurance premiums nationally. [...]

If the individual mandate falls within Congress's power to tax and spend, no other constitutional authority is necessary.

The argument is sure to be interesting. This is the one to watch.
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Comment Preferences

  •  I support an amendment (2+ / 0-)
    Recommended by:
    TofG, ChadmanFL

    that would clarify these issues.  It would have three basic points:

    1) The US government can regulate any part of the economy.

    2) The states can regulate any part of the economy within their borders, so long as their regulations entail the federal ones.  

    3) No regulation or program of the US or any state shall violate any treaty the US is party to.

    This is basically the way things are now, with the vast precedent set by the Supreme Court.  But it would make things clear, wouldn't it?  It makes the existing implicit powers explicit.  Once the crazy dies down on the right, it might well pass.

    You're not stuck in traffic, you are traffic

    by nominalize on Tue Mar 27, 2012 at 06:07:42 AM PDT

    •  If PPACA prevails in court... (0+ / 0-)
      1) The US government can regulate any part of the economy.
      ...this will be, in all meaningful manners, the law of the land.

      This is the last stand of Interstate Commerce restriction/justification.  If the mandate flies, anything flies.

      •  You mean, "anything flies" like the Patriot Act... (2+ / 0-)
        Recommended by:
        maryabein, Clem Yeobright

        ... to move over to another area where Congress exercised its formidable powers to rip some huge holes in the Bill of Rights?

        Obama and strong Democratic majorities in 2012!

        by TRPChicago on Tue Mar 27, 2012 at 06:58:07 AM PDT

        [ Parent ]

      •  Eh, wrong. (7+ / 0-)

        Sorry, but that's just a ridiculous argument.

        If the Act is upheld, the reason will be because it falls within the powers of Congress under current precedent.

        This is no last stand. This is not a question of expanding federal power. This is not unprecedented.

        Lopez, Morrison, etc. still offer restrictions on Congress's power under the CC.

        If you want to lament the end of all restrictions on the Commerce Clause, you should have done so for Raich. This is a much easier case.

        •  There's no precedent forcing a person to (0+ / 0-)

          buy something. George Washington telling his soldiers to buy guns notwithstanding.

          "I'm sculpting now. Landscapes mostly." ~ Yogi Bear

          by eXtina on Tue Mar 27, 2012 at 07:08:50 AM PDT

          [ Parent ]

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

            Commerce Clause does not make the buying/not buying destinction.

            and btw, the most famous Commerce Clause precedent in history IS basically precedent about forcing somebody to do something (Wickard)

            They forced a farmer to destroy his own crops that he was not selling but only using himself, because then he wasn't buying it.

            "The Court decided that Filburn's wheat growing activities reduced the amount of wheat he would buy for chicken feed on the open market, and because wheat was traded nationally, Filburn's production of more wheat than he was allotted was affecting interstate commerce. Thus, Filburn's production could be regulated by the federal government."
            •  ? (0+ / 0-)

              Was Congress regulating the farming business, or the individual? That's where I see the distinction.

              The power of Congress to require health insurance companies to accept individuals with pre-existing conditions is one thing. Requiring individuals to purchase a product is a horse of a different color.

              What law has Congress passed, at any time in history, that mandated an individial purchase a product?

              A state requiring the owner of a vehicle purchase car insurance os a lame comparision, please don't try that on me... I am not Buying it

          •  That's not how precedent works (3+ / 0-)
            Recommended by:
            Jonathan, FogCityJohn, Clem Yeobright

            but you're wrong anyway.

            First of all, the commerce clause permits "regulation" of interstate commerce. You're argument necessarily suggests that a "regulation" cannot be a mandate to "buy something."
            Why not? If forcing someone not to buy something (a ban) is a regulation, what logic is there that the opposite requirement is not a "regulation"?

            Then there's the false notion that you are "forced" to "buy something" anyway. If you don't buy it (or are not exempt) you must pay a penalty. Even if you think that's basically the same thing as forcing you, good for you, but thats what is actually going on.

            Furthermore, you are also dead wrong anyway. There IS precedent for forcing a person to buy something, and your Washington comment hinted at it.

            He wasn't the only one to "force" the purchase of guns- Congress, yes Congress!, did it to. Among the provisions of the Second Militia Act of 1792, was this mandate:

            That every citizen, so enrolled and notified, shall, within six months thereafter, provide himself with a good musket or firelock, a sufficient bayonet and belt, two spare flints, and a knapsack, a pouch, with a box therein, to contain not less than twenty four cartridges, suited to the bore of his musket or firelock, each cartridge to contain a proper quantity of power and ball; or with a good rifle, knapsack, shot-pouch, and powder-horn, twenty balls suited to the bore of his rifle, and a quarter of a pound of powder; and shall appear so armed, accoutred and provided, when called out to exercise or into service, except, that when called out on company days to exercise only, he may appear without a knapsack
            •  'so enrolled' (0+ / 0-)

              presumably there are people not 'so enrolled'

              Again, there are people to whom it doesn't apply, unlike the mandate

              And 'good for you' doesn't seem like much of an argument. Yes, either way you are 'forced' to spend money on something you don't want or don't agree with

              "I'm sculpting now. Landscapes mostly." ~ Yogi Bear

              by eXtina on Tue Mar 27, 2012 at 07:43:48 AM PDT

              [ Parent ]

              •  Militia service was also mandated (3+ / 0-)
                Recommended by:
                FogCityJohn, Clem Yeobright, ogre

                You were required to be enrolled as well:

                That each and every free able-bodied white male citizen of the respective States, resident therein, who is or shall be of age of eighteen years, and under the age of forty-five years (except as is herein after excepted) shall severally and respectively be enrolled in the militia, by the Captain or Commanding Officer of the company, within whose bounds such citizen shall reside, and that within twelve months after the passing of this Act.
                There are, in fact, people to whom the mandate does not apply as well.

                No- "good for you" was me dismissing your argument as your own personal opinion and not relevant to the question of constitutionality. If you are going to argue that it is constitutionally impermissible to "force" someone to "buy something," (which I don't think is true anyway), that argument does not become relevant until you show that this is such a situation.

                There is no "forcing." There is an obligation to either do the act or pay a penalty.

                Your personal belief that these are functionally equivalent notwithstanding, as a matter of law they are clearly distinguishable.

                If an officer come to your door and tells you to either pay him $50 or allow him to enter your home, it is not the same thing as if he forced his way in. Both may be constitutionally prohibited, but they are not the same thing.

            •  Provide, how? (0+ / 0-)

              I can't see anything that suggests that a purchase was mandated. What if the enrolled already the required items, was he expected to purchase the items anyway?

          •  well (3+ / 0-)
            Recommended by:
            Jonathan, Clem Yeobright, ogre

            the first time the federal government forced people to buy insurance via a legal mandate was in 1798.

            anyone born after the McDLT has no business stomping around acting punk rock

            by chopper on Tue Mar 27, 2012 at 07:26:18 AM PDT

            [ Parent ]

          •  oh? (0+ / 0-)

            Do you have a car? Do you have car insurance?

      •  Not even radical conservatives (5+ / 0-)

        deny "the US government can regulate any part of the economy."

        Of course "regulate" mean something different to them.

        In any event, you are not a progressive I assume.

      •  I don't see the point in restricting the fed. govt (0+ / 0-)

        to interstate commerce, especially in the 21st century, when we have a much better understanding of how commerce is practically never truly local anymore.  

        It is currently the case that the US gov't can regulate any commerce, by claiming it is interstate, somehow.  This amendment removes the need to jump through those hoops.  If the principle is made clear by constitutional amendment, there will be no need for courts to decide the matter for us.

        You're not stuck in traffic, you are traffic

        by nominalize on Tue Mar 27, 2012 at 07:55:02 AM PDT

        [ Parent ]

    •  Clarity in an amendment, or more mischief? (3+ / 0-)

      With respect, I don't agree that your formulation "is basically the way things are now." Also, you have to be sure your amendment would pass because failure would set us back several decades. And failure of this is a real possibility. Look at our current map of the US with an awful lot of red territories and the well-funded Far Right noise machine.

      I think ACA is firmly within Congress's constitutional powers, and arguments about governmental power not reaching inactivity and "liberty of contract" are specious. As one law prof was quoted in this morning's NYT, these concepts are a few years old and made out of whole cloth. The biggest danger is that some members of the Court will start deriving theories that can accept ACA but will undermine Congress's commerce power down the road.

      Obama and strong Democratic majorities in 2012!

      by TRPChicago on Tue Mar 27, 2012 at 06:54:13 AM PDT

      [ Parent ]

      •  Whole cloth (0+ / 0-)

        " these concepts are a few years old and made out of whole cloth."

        Like the right of privacy?

      •  The US govt can currently regulate anything, (0+ / 0-)

        and then make a claim in court when challenged that the commerce is somehow interstate.  Other commenters have cited the cases.  

        That is what I mean by "basically the way things are now".  I find it to be a good thing. The US government should be able to regulate commerce within its borders.  Given what we know about modern economics, there is little to no truly local commerce--- we are not in a closed system, so each of our decisions has knock-on effects that cross state lines, so the question ought to be moot.  From a judicial standpoint it is, but I would like to see a political decision as well, in the form of a constitutional amendment.

        As for potential failure, I refer you to my final sentence: "Once the crazy dies down on the right, it might well pass."  

        You're not stuck in traffic, you are traffic

        by nominalize on Tue Mar 27, 2012 at 07:59:20 AM PDT

        [ Parent ]

  •  I cannot argue with you about the importance, (9+ / 0-)

    but cannot see the value of anything in the Constitution if the federal government's power is so unrestricted that it can order you to buy products from private companies for their profit.

    I cannot imagine a limiting principle if the federal government has that much power.

    I cannot imagine that being the kind of country that my father gave his life to protect.

    LG: You know what? You got spunk. MR: Well, Yes... LG: I hate spunk!

    by dinotrac on Tue Mar 27, 2012 at 06:08:34 AM PDT

    •  If there were a 'public option" or "medicare " (21+ / 0-)

      for all, the mandate would be a moot question. The problem is forcing folks to buy private insurance with no cost controls and for-profit costs passed onto the consumer. That's why the insurance companies really love the mandate, thought up my the neo-cons. Pathetic.

    •  The limiting principle is the due process clause (4+ / 0-)

      Or is it your view that Texas can make you eat Broccoli?

      Ok, so I read the polls.

      by andgarden on Tue Mar 27, 2012 at 06:22:01 AM PDT

      [ Parent ]

      •  Do you even know what due process is? (1+ / 0-)
        Recommended by:
        hmi

        What comfort should I take in the knowledge that the government has followed the proper procedure and forced me to buy a product against my will?

        LG: You know what? You got spunk. MR: Well, Yes... LG: I hate spunk!

        by dinotrac on Tue Mar 27, 2012 at 06:26:02 AM PDT

        [ Parent ]

        •  Based on your question, it is apparent to me (3+ / 0-)

          that you do not "know what due process is."

          Let me try it this way: why can't Texas ban abortion?

          Ok, so I read the polls.

          by andgarden on Tue Mar 27, 2012 at 06:29:41 AM PDT

          [ Parent ]

          •  Sigh. (0+ / 0-)

            LG: You know what? You got spunk. MR: Well, Yes... LG: I hate spunk!

            by dinotrac on Tue Mar 27, 2012 at 06:34:25 AM PDT

            [ Parent ]

          •  Hey, y'all (0+ / 0-)

            I don't know what due process is so why don't you both explain it to me?

            Causation was, is, and ever shall be a slippery bitch, so we're best sticking with noting the facts

            by jam on Tue Mar 27, 2012 at 07:12:25 AM PDT

            [ Parent ]

            •  it pretty much is what it purports to be (0+ / 0-)

              generally, but the details are a little more complicated.

              Particularly when you define "due" and you define "process."

              It means in general terms that before something is taken from you (or in some cases imposed on you) like say your freedom, that you have a right to due process first.

              What's "due" and what kind of "process" you get, depends upon the deprivation (or in some cases obligation) that is to be forced upon you.

              So, for example in criminal law, death penalty cases received the highest level of due process, followed by cases involving confinement, followed by cases where confinement isn't possible.

        •  something people keep missing (3+ / 0-)
          Recommended by:
          dinotrac, wishingwell, Sinan
          "What comfort should I take in the knowledge that the government has followed the proper procedure and forced me to buy a product against my will?"
          it's not about what comforts you, it's about what power the gov. has.

          sorry, but sometimes those can be two different things.

          Basically, the Founders believed that there's a fairly easy and direct way to fix bad law - by voting our your representatives.

          Especially in the House, where the members represent relatively small area and are up for reelection every two years, the people have more say in these things than they do with the other branches of government, and thus, the power of the people to overturn bad laws is more potent and therefore there is less risk of giving Congress expansive regulatory power.

          in theory, at least.

          •  But you seem to be missing something, too... (1+ / 0-)
            Recommended by:
            hmi

            that the Consitution is written in a form of specific grants of power, and, to be sure, the first 9 amendments of the Constitution were crafted to protect individuals from the power of the state.

            Our founders were very concerned with a concept know as "The Tyranny of the Majority", ie, democracy may be the best principle for governing a population, but not at the expense of individual rights.

            LG: You know what? You got spunk. MR: Well, Yes... LG: I hate spunk!

            by dinotrac on Tue Mar 27, 2012 at 06:47:47 AM PDT

            [ Parent ]

            •  yes (2+ / 0-)
              Recommended by:
              Armando, dinotrac

              and Congress's power is limited by the Bill of Rights, as well as the natural limits on the Commerce Clause (i.e. rationally-related; must have an effect on Congress).

              that still gives pretty braid leeway, but that's why you can vote congresspeople out of office and put in new ones.

              basically, there's a bit less danger in giving Congress expansive power because of the whole voting thing, or so the Founders thought.

              in effect, people are confusing Congress's power under the commerce clause and violations of other parts of the Constitution (due process, maybe?)

              •  edit (1+ / 0-)
                Recommended by:
                dinotrac

                should have said: "must have an effect on commerce", not "must have an effect on congress", lol.

              •  Bill of Rights (0+ / 0-)

                Was not part of original Constitution. Any understanding of Congressional limits has to apply pre-amendment.

                •  yes (0+ / 0-)

                  but that does not change anything regarding the analysis.

                  they are still a limit on Congress's power, and the Founders still believed that Congress was the branch of government most directly controlled by the people, which would give Congress a powerful incentive to not trample people's rights and also a way for the people to fix bad laws by voting for/against representatives.

                  maybe the Founders' screwed up. I don't necessarily think that's the case. But even if you do, that doesn't make the ACA unconstitutional.

                •  No. (2+ / 0-)
                  Recommended by:
                  jeopardydd, Armando

                  Amendments to the Constitution are exactly that -- changes to the Constitution.

                  It's why slavery is illegal -- the Constitution originally allowed for it -- and why women can vote, even though the Constitution did not originally allow for that.

                  And...let's not forget when the Bill of Rights was written and by whom:

                  A number of delegates to the Consitutional convention had pushed for a bill of rights as part of the original Constitution and James Madison introduced the amendments that would become the bill of rights in the first Congress. They were ratified by 3/4 of the states in 1791.

                  LG: You know what? You got spunk. MR: Well, Yes... LG: I hate spunk!

                  by dinotrac on Tue Mar 27, 2012 at 07:15:40 AM PDT

                  [ Parent ]

                •  That's ridiculous (2+ / 0-)
                  Recommended by:
                  kareylou, jeopardydd

                  The Bill of Rights was part of the compromise for the ratification of the original Constitution.

                  •  And yet (0+ / 0-)

                    those amendments were not there at ratification, and not a soul could guarantee that all the states would vote for any precise group of amendments.

                    Even a glance at Vol. 5 of Kurland and Lerner's Founders' Constitution would show you 200 pages of proposals, debates, discussions, revisions. etc. for just what eventually became the 1st amendment. In short, there was no "Bill of Rights" to be agreed upon as part of ratification—not in any meaningful sense.

              •  People are simply confusing ;0) (0+ / 0-)

                You make a good point, though.
                There are many parts to the Constitution, and some of them overlap.

                So...

                If I steadfastly refuse to buy insurance to protest the unjustness of being forced to support a corrupt capitalist insurance scheme, do my First Amendment rights protect me from government retribution or not?

                If not, how much of the Constitution goes down the toilet if the mandate stands?

                LG: You know what? You got spunk. MR: Well, Yes... LG: I hate spunk!

                by dinotrac on Tue Mar 27, 2012 at 07:07:12 AM PDT

                [ Parent ]

            •  What individual right (4+ / 0-)

              is being invoked to challenge the individual mandate?

              No offense, but you are a font of misinformation.

            •  And you seem to be asserting (0+ / 0-)

              that the Constitution is clear where it isn't.

              There is a specific grant of power in the Commerce Clause, but folks have been arguing over what exactly that grant is, and how broad it is, pretty much from the moment the ink dried.

              Over 200+ years we've developed case law, and precedent (both judicial and legislative) that has interpreted the Clause rather broadly. Is that what the "Founders" intended? No one knows. Some of them probably did, such as Madison who wrote the darn thing and was a big fan of a strong central government, some of the anti-federalist "Founders" probably did not.

              Thus the power, and the price, of a political compromise document. It can be interpreted multiple ways.

      •  There has to be a rational basis (0+ / 0-)

        for all laws.  Unless a state or the federal government can articulate one, the law is unconstitutional.

        The bitter truth of deep inequality has been disguised by an era of cheap imported goods and the anyone-can-make-it celebrity myth - Polly Toynbee

        by fladem on Tue Mar 27, 2012 at 06:33:59 AM PDT

        [ Parent ]

    •  I agree (4+ / 0-)
      Recommended by:
      dinotrac, pjb927, eXtina, Kickemout

      Unless some limiting principle can be articulated, the constitution becomes pretty much an unlimited charter and the enumerated powers just a sample list. Among the many good questions I've seen raised has been whether, under the broad construction proposed, there had been any necessity whatsoever for a constitutional amendment in order to establish Prohibition.

      If federal powers are really this wide-ranging and declared to be so by the SCOTUS, I think many will be extremely unhappy to see what else floats down the pike in years to come—possibly enacted by a Santorum administration of 2016. Jefferson, on his principles, shouldn't have made the Louisiana Purchase, and Obama, on his principles, shouldn't be issuing signing statements. But there has never been a politician who could resist the use of any existing authority.

      •  Yup. Sauce for the goose, sauce for the gander. (2+ / 0-)
        Recommended by:
        pjb927, hmi

        Ends justify the means thinking falls apart when people you like get their hands on the levers of power.

        At some point, the Constitution means something or it doesn't.

        If it means nothing, then what are we as a nation?

        LG: You know what? You got spunk. MR: Well, Yes... LG: I hate spunk!

        by dinotrac on Tue Mar 27, 2012 at 06:27:56 AM PDT

        [ Parent ]

        •  The reading of the Commerce Clause... (11+ / 0-)

          ...necessary to find the ACA unconstitutional is the radical departure from the status quo, not the other way around.

          One cannot claim a slippery slope from where one already stands.

          Do you think our Constitution has been a meaningless dead letter for the better part of the last century?

          Unless you do, you don't actually believe that finding the ACA constitutional will have the effects that you claim it will.

          Tunis...Cairo...Tripoli...Wall Street

          by GreenSooner on Tue Mar 27, 2012 at 06:44:27 AM PDT

          [ Parent ]

          •  Ever taken a drink of alcohol? (0+ / 0-)

            Is there a difference between a glass of wine with dinner and chugging a half a dozen shots of whiskey?

            At some point, things change, even when the actions seem similar.

            LG: You know what? You got spunk. MR: Well, Yes... LG: I hate spunk!

            by dinotrac on Tue Mar 27, 2012 at 06:51:42 AM PDT

            [ Parent ]

            •  That's not an argument. (7+ / 0-)

              Unless it's "Yes, I can claim a slippery slope because I just thought of a metaphor for a slippery slope."

              What did you do in the class war, Daddy?

              by Yastreblyansky on Tue Mar 27, 2012 at 06:59:48 AM PDT

              [ Parent ]

            •  Translate that into con law, please! (5+ / 0-)

              The Commerce Clause does not read:

              To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes, but not too much.
              or
              To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes, but only in ways to which no individual citizen might object.
              Again, the issue isn't whether or not the ACA is a good idea, but whether or not it's constitutional.

              To return to your drinking analogy: whether or not they're both good ideas, both a glass of wine with dinner and chugging half a dozen shots of whiskey are, in and of themselves, completely legal activities when done by people over the age of 21.

              Tunis...Cairo...Tripoli...Wall Street

              by GreenSooner on Tue Mar 27, 2012 at 07:01:14 AM PDT

              [ Parent ]

              •  How about this: (0+ / 0-)

                When did "regulate" come to mean "forced to participate"?

                The mandate is not about regulating interstate commerce.
                It's about forcing people to participate.

                LG: You know what? You got spunk. MR: Well, Yes... LG: I hate spunk!

                by dinotrac on Tue Mar 27, 2012 at 07:02:59 AM PDT

                [ Parent ]

                •  Finally (4+ / 0-)

                  the inactivty/activity argument.

                  It took you numerous comment to finally get where you should have started.

                  What of the Necessary and Proper Clause?

                  •  Yup: "necessary and proper" is the implementation (1+ / 0-)
                    Recommended by:
                    Clem Yeobright

                    ... of the Congressional powers described immediately before that phrase. It is a huge - and understandable - grant of authority: "... To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers ..."

                    Obama and strong Democratic majorities in 2012!

                    by TRPChicago on Tue Mar 27, 2012 at 07:12:30 AM PDT

                    [ Parent ]

                •  There's nothing new in "forced to participate." (1+ / 0-)
                  Recommended by:
                  Clem Yeobright

                  We'll agree some legislation that does that is a lousy idea, but not all legislation.

                  Obama and strong Democratic majorities in 2012!

                  by TRPChicago on Tue Mar 27, 2012 at 07:07:08 AM PDT

                  [ Parent ]

                •  1942. (1+ / 0-)
                  Recommended by:
                  Clem Yeobright

                  Yup, 70 years ago.  If you doubt it, I suggest you read up on Wickard v. Fillburn.

                  Has the past 70 years seen a "parade of horribles" due to this expansive view of the Commerce Clause?  I think not.

                  Ultimately, the only thing that matters with respect to preserving choice is who will be nominating the next Supreme Court Justices.

                  by Its the Supreme Court Stupid on Tue Mar 27, 2012 at 07:11:52 AM PDT

                  [ Parent ]

                •  You're already participating. (3+ / 0-)
                  Recommended by:
                  kareylou, uffdalib, Clem Yeobright

                  The ACA just makes sure that you don't try to game the system.

                  Unless of course, you will never need healthcare - and since I can all but promise you that you will, I'm unsympathetic to your argument.

                  You can skip the requirement to carry collision by not driving - but you absolutely cannot skip participating in the health care system.  If the government can require banks to maintain a certain level of capitalization, they can require that you maintain a liquidity hedge against catastrophic illness.

                  Your "promise" that you won't get sick, or that you'll just die quietly if you do is not enforceable, so the rest of us (who will end up paying for your inevitable failure) have decided that you WILL carry the hedge.  So suck it up - I'm tired of this fantasy that you're just going to drop out of modern medical care.

                  •  My question to those folks (1+ / 0-)
                    Recommended by:
                    uffdalib

                    Were you born in a hospital? Well then too late.
                    Besides which, don't I have a right not to live in a society where we step over those writhing on the sidewalks after a heart attack, or driving over bodies of those run down in the streets because they have the special bracelet, or whatever would indicate that they opted out of modern medicine?
                    This is not hyperbole. Either these people will be treated, and someone will pay for it, or we are going to let them lie around and perhaps die untreated.
                    Time and chance happen to us all. Some people just do not want to accept that.  

                    To keep our faces turned toward change, and behave as free spirits in the presence of fate--that is strength undefeatable. (Helen Keller)

                    by kareylou on Tue Mar 27, 2012 at 07:52:04 AM PDT

                    [ Parent ]

                •  isnt regulation (1+ / 0-)
                  Recommended by:
                  jam

                  pretty much the definition of force?

                  OSHA "forces" people to follow certain practices.

                  Social Security "forces" people to pay a tax that the government then invests/pools to provide for your retirement.

                  Can you name me a regulation that doesn't "force" someone to do something?

            •  I susoect u have had a drink of alcohol (0+ / 0-)
      •  But for the 21st Amendment, (4+ / 0-)

        it is readily obvious to me that Congress could have enacted Prohibition.

        Is it seriously your view that Congress does not have the authority to ban products it deems dangerous or undesirable from the market?

        Ok, so I read the polls.

        by andgarden on Tue Mar 27, 2012 at 06:32:03 AM PDT

        [ Parent ]

        •  If they're being sold across state lines (0+ / 0-)

          obviously.  If doing so is both necessary and proper for maintaining Congress' other powers, yes.  Otherwise, there's certainly precedent in both directions, but the Constitution itself says no, doesn't it?

        •  Absolutely (0+ / 0-)

          And Congress could enact law based on a legislative determination that abortion is too dangerous a procedure to be left in the hands of ordinary physicians—only federally licensed abortionists will be permitted to engage in the procedure. The application fee will be $10,000 and you will have to pass a special exam and supervised internship. Unfortunately, it will take all of the 8 years of the Santorum administration to get the licensing standards ironed out and these internships set up. Oh well—it's constitutional.

          But thanks for being honest about Prohibition under your view.

          •  You and your fellow travelers (3+ / 0-)

            seem to be unaware of the due process clause.

            Ok, so I read the polls.

            by andgarden on Tue Mar 27, 2012 at 06:45:37 AM PDT

            [ Parent ]

          •  The liberty interest (6+ / 0-)

            enunciate din the 14th Amendment would place a strict scrutiny review on such a legislative finding, beyond the fact that there is no medical expert who would say that.

            You simpyl do not understand Constitutional law. That's harsh.but there is no other way to describe your reasoning.

            •  Thanks (0+ / 0-)

              But my Con Law professor at the U. of Chicago disagreed with you. Possibly so do the students in my Legal Philosophy classes, but that's not so certain.

              In my example, the court could well decline to rule on what it took to be a legislative determination (you did read that part, didn't you?) and then decline to intervene in a regulatory matter that is in course of being worked out. Due process wouldn't enter into it, nor does the 14th amendment. Of course, it also helps that Santorum had by then appointed 2 new SC justices.

              I'm afraid you just don't understand the political process. That's harsh, but there is no other way to describe your reasoning. And not so good, IMO, on the constitution.

              •  Oh well (4+ / 0-)

                "con law profrssor" disagree with me. About what exactly?

                You know who else disagrees with me? Clarence Thomas.

                You know who agrees with me? John Marshall.

                •  In your own mind (0+ / 0-)

                  you are your own hero. And you mistake your view of John Marshall for John Marshall agreeing with you. I didn't bother raising the issue earlier, but since you do—you selectively grab onto one side of Marshall's opinion, ignoring his own caveat concerning "that enlarged construction, which would extend words beyond their natural and obvious import." Since we are precisely discussing whether Congress is going beyond the bounds of the meaning of "regulating Commerce," I'd say Marshall hasn't quite lined up to march along with you.

                  Even more to the point, Marshall himself (albeit under a pseudonym) took up these question further in 9 essays centered around the McCullough decision, edited and published by Gerald Gunther in John Marshall's Defense of McCullough v. Maryland. In the essays called "A Friend of the Constitution" (p. 179 ff.) Marshall takes up the question of implied powers both generally and in relation to his own earlier decision. He insists here, even more clearly that in his original decision, that there is a difference between an "enlarged construction" of the "necessary & proper clause" and "enlarging the powers of congress," denying the propriety of the latter. I remain extremely dubious that you or anyone could show that Marshall would approve uniting two non-specific grants into the all-encompassing power to "promote the [undefined] general welfare by making any and all laws Congress thinks necessary and proper to its promotion."

                   Yet that is what the promoters of the mandate contend. It is, IMO, a foolish position on multiple grounds and one which will lead to grief in future. And John Marshall would roll over in his grave at the use you try to make of him in this argument.

      •  here (1+ / 0-)

        1) there are limiting principles (i.e. rationally related; affects commerce

        2) Basically, the Founders believed that there's a fairly easy and direct way to fix bad law - by voting our your representatives.

        Especially in the House, where the members represent relatively small area and are up for reelection every two years, the people have more say in these things than they do with the other branches of government, and thus, the power of the people to overturn bad laws is more potent and therefore there is less risk of giving Congress expansive regulatory power.

        in theory, at least.

        •  Yeah, what are thos limiting principles? (0+ / 0-)

          Rational related is an extremely low barrier that is nearly impossible not to cross in any law.

          The "affects commerce" is not quite applicable as people are not engaged in interstate commerce if they do not buy insurance at all.

          The thinnest application of the commerce clause that I can remember involves the government's ability to regulate crop selection.  There was a case where farmers were growing crops solely for sale within their own states, but the court ruled that, because the crops would compete with those from other states in the market, because they would substituted for crops from out-of-state, and because they would affect prices and availability of crops in surrounding states, that the farmers did indeed take part in interstate commerce.  I don't believe, however, that the ruling applied if the farmers simply stopped growing  crops,ie, quit farming.

          LG: You know what? You got spunk. MR: Well, Yes... LG: I hate spunk!

          by dinotrac on Tue Mar 27, 2012 at 06:59:22 AM PDT

          [ Parent ]

          •  more confusing (1+ / 0-)

            1) yes, the limits on the commerce clause are not very robust - because there's a more powerful limit and that's voting out your representatives, at least so the Founders thought.

            2) the mandate is part of the larger ACA, and nobody in their right mind can argue that the ACA doesn't affect commerce. Not every individual part has to completely stand on it's own in terms of affecting commerce (see the diarist's discussion of the Necessary and Proper Clause).

            3) the Court has already ruled that not engaging in interstate commerce can affect interstate commerce (see Wickard v. Filburn, where a farmer NOT selling his crops affected interstate commerce and therefore he could be forced to sell them).

            •  sorry, correction (0+ / 0-)

              early morning head-fog here.

              The farmer was forced to destroy his crops so that he would have to buy it on the market.

              the point stands though. he was not engaging in commerce, and Congress could basically force him to.

            •  Did you read the facts carefully? (0+ / 0-)

              He was not forced to grow anything.
              He was forced to destroy what he had grown.

              LG: You know what? You got spunk. MR: Well, Yes... LG: I hate spunk!

              by dinotrac on Tue Mar 27, 2012 at 07:23:55 AM PDT

              [ Parent ]

              •  umm (1+ / 0-)
                Recommended by:
                Cheez Whiz

                did you read my correction, that I posted 5 minutes before your comment?

                •  I did, and probably should have used a different (0+ / 0-)

                  subject line.

                  Two things:

                  1. The ruling was that he actually WAS engaging in interstate commerce by growing the wheat because it affected prices and supply at the local market and on surrounding markets, including those out-of-state.

                  2.  He was forced to disengage from commerce, not to engage in it. That's the opposite of the ACA's individual mandate.

                  I hate that case, btw.  I think it fully justifies the "parade of horribles" predictions made by those decrying expansion of the commerce clause.

                  LG: You know what? You got spunk. MR: Well, Yes... LG: I hate spunk!

                  by dinotrac on Tue Mar 27, 2012 at 08:02:20 AM PDT

                  [ Parent ]

                  •  however (0+ / 0-)

                    1) he WAS engaging in interstate commerce by NOT engaging in interstate commerce (they said he wasn't buying wheat for chicken-scratch because he was growing it himself).

                    2) he wasn't forced to disengage from commerce. He was forced to destroy his own crops, which he was using INSTEAD of engaging in commerce. His being self-sufficient affected interstate commerce because he wasn't buying wheat.

                    That case is why we can have things like clean air regulations (mostly because it represented the shift in the Court to more expansive regulatory power). So I love that case.

          •  Did you read Armando's comments above on this (0+ / 0-)

            issue?

            Follow PA Keystone Liberals on Twitter: @KeystoneLibs

            by wishingwell on Tue Mar 27, 2012 at 07:21:50 AM PDT

            [ Parent ]

    •  So you'll be against Republican plans (0+ / 0-)

      for private social security and Medicare accounts? It's not constitutional unless it's socialism? Interesting view!

      What did you do in the class war, Daddy?

      by Yastreblyansky on Tue Mar 27, 2012 at 06:31:46 AM PDT

      [ Parent ]

    •  NOTHING of value (0+ / 0-)

      Really?  I guess the first, fourth and fifth Amendment's don't matter much...

      The bitter truth of deep inequality has been disguised by an era of cheap imported goods and the anyone-can-make-it celebrity myth - Polly Toynbee

      by fladem on Tue Mar 27, 2012 at 06:31:48 AM PDT

      [ Parent ]

    •  This is Just Handwaving (8+ / 0-)
      I cannot imagine a limiting principle if the federal government has that much power.
      How does reading the Commerce Clause the way it's been read for the better part of a century invalidate the Bill of Rights?

      (Just to repeat what I said to you in an earlier thread: I think there are all kinds of reasons why one might conclude that the individual mandate is bad policy, one of them being the relationship it establishes between the federal government and a particular private interest...but just because something is bad  policy doesn't make it unconstitutional.)

      Tunis...Cairo...Tripoli...Wall Street

      by GreenSooner on Tue Mar 27, 2012 at 06:42:17 AM PDT

      [ Parent ]

    •  Would you agree that if you don't have coverage (1+ / 0-)
      Recommended by:
      wishingwell

      hospitals don't have to treat you? If you don't have insurance than you die in the street - that you don't get to get hospital care and then file for bankruptcy and stick everybody else with your bill?

    •  except it doesnt do that (7+ / 0-)

      it taxes you, but removes that tax if you get health insurance.

      You don't HAVE to get health insurance, if you would rather just pay the tax.

      Heck SS and Medicare are more restrictive. You don't have an option or choice at all there. You have to pay those taxes, and you can't invest that money yourself.

      Are you against those two programs?

    •  But that's not this case. The "non-buyers" impose (1+ / 0-)
      Recommended by:
      Clem Yeobright

      ... huge costs on the rest of us.

      Obama and strong Democratic majorities in 2012!

      by TRPChicago on Tue Mar 27, 2012 at 06:59:26 AM PDT

      [ Parent ]

    •  Stuff. (8+ / 0-)

      Federal taxes are collected and spent on private contractors for stuff every day, so that citizens can have X service and private companies can profit by building roads, power plants, and jet fighters. These forcibly collected taxes are also spent on regulatory bodies to manage and enforce regulations. Mortgage-providing companies profit via tax breaks for homeowners. Etc.

      The government lawfully forces us to do many things which have the effect, directly or indirectly, of making some private entity richer. This is not new by any means, and so the heat of that principle does not enough light to create an argument against the ACA.

      The understanding of the Commerce Clause that enables the ACA to pass constitutional muster has been around for around 70 years now. Given that reality, if you can't see the value of "anything in the Constitution" I guess it must have always seemed like an empty document to you.

      it fitfully blows, half conceals, half discloses

      by Addison on Tue Mar 27, 2012 at 07:06:21 AM PDT

      [ Parent ]

  •  I refuse to cheer for corporate health care (9+ / 0-)

    The mandate just entrenches those bloodsuckers.  While the Romneycare does do some good, it keeps the systemic problem in place.

    NOW SHOWING
    Progressive Candidate Obama (now - Nov 6, 2012)
    Bipartisan Obama returns (Nov 7, 2012)

    by The Dead Man on Tue Mar 27, 2012 at 06:09:55 AM PDT

    •  entrenches them? (4+ / 0-)
      Recommended by:
      TooFolkGR, jsfox, Clem Yeobright, MGross

      you have a very different definition of that word than aetna's CEO, who said the insurance business model is dead, thanks to ACA.

      back to the diary:

      the government will argue that if the individual mandate is ruled unconstitutional, then the ban on preexisting conditions, minimum expenditures on health care, and other essential regulatory protections for health insurance consumers must fall with it, as they are inextricably intertwined with the individual mandate.
      why wouldn't they push for severability?  that makes zero sense.

      Never forget that the Republican War on Women originated with religion; the GOP is but theocracy's handmaiden.

      by Cedwyn on Tue Mar 27, 2012 at 06:13:12 AM PDT

      [ Parent ]

    •  Finding Constitutional ≠ "Cheering For" (2+ / 0-)
      Recommended by:
      Armando, Paleo

      Though we perhaps disagree about whether the ACA is better than the status quo ante, I agree 100% with The Dead Man that it doesn't address the core problems with the current system and, in fact, entrenches corporate healthcare.

      None of that has anything remotely to do with its constitutionality, however.

      Tunis...Cairo...Tripoli...Wall Street

      by GreenSooner on Tue Mar 27, 2012 at 06:49:11 AM PDT

      [ Parent ]

    •  ACA creates superior conditions for singlepayer... (2+ / 0-)
      Recommended by:
      judyms9, 57andFemale

      ...state by state.

      it fitfully blows, half conceals, half discloses

      by Addison on Tue Mar 27, 2012 at 06:54:14 AM PDT

      [ Parent ]

    •  Agree on policy, but this is constitutional law (1+ / 0-)
      Recommended by:
      Jonathan

      A decision that congress doesn't have the power under the commerce clause to require the purchase of health care would be devastating to future national economic and health care policy.

      "We calmly accept our uncertain position." Joey Rathburn. But HBO can kiss my ass for cancelling Luck.

      by Paleo on Tue Mar 27, 2012 at 07:15:18 AM PDT

      [ Parent ]

  •  While I expect the mandate to be upheld (4+ / 0-)
    Recommended by:
    pjb927, pollwatcher, TofG, apip0115

    if it were not, the consequences would not be as apocalyptic as you are describing.  Ultimately, the court in striking down the mandate would likely do so quite narrowly, prohibiting future mandates of universal applicability.  I am not aware of any other statute or program that would be affected.  

    While some advocates would seek to dismantle the post New Deal understanding of the scope of Federal power, this view has one vote on the Supreme Court and is radical even among Republican lawyers and judges.

    Similarly, if the mandate is upheld, individual freedom will not have ended and  the government will not be able to force you to eat broccoli.

    •  It's Bush V Gore II (5+ / 0-)
      Recommended by:
      Sychotic1, sonorelli, kamarvt, a2nite, Tuffie

      The Conservatives on the court who constantly proclaim they are interpreting the constitution the way the founding fathers intended, have a very good record of putting their politics above the constitution.

      Bush V Gore, Citizens United, and many other pro-Oligarch decisions lead me to believe they will reject the mandate on pure BS grounds.  The constitution is like the Bible, I can interpret it to fit any need I might come up with.

      The talk about some of the conservative judges might vote to uphold the mandate because they've done something similar in the past is nonsense.  This court will vote what is in the best interest of the Oligarchs, no matter what they've done in the past.

      This should send a huge red flag to the people who are planning on sitting home  this Nov.!  The Supreme Court is reason enough to get off your ass and get out and work for someone who may be appointing new justices in the next 4 years!

      •  yup. the legal debate in this thread (1+ / 0-)
        Recommended by:
        pollwatcher

        is in all likelihood far deeper and more honest than the legal debate going on in the heads of the RATS.
        Sorry, but I just cannot believe these operatives on the Supreme Court are going to act entirely out of character and hear this case only on the merits. CU is proof positive that precedent and "the way the law has consistently been read for over a century" don't mean shit to these guys.
        They have an agenda to move, and they will move it. Sure, they'll try to hide this behind bizarre, tortured opinions, but failing that they will issue a convenient ruling and then say "just this once" like they did in Bush v Gore.

        Class war has consequences, and we are living them.

        by kamarvt on Tue Mar 27, 2012 at 07:06:41 AM PDT

        [ Parent ]

    •  What the court (2+ / 0-)
      Recommended by:
      GreenSooner, sonorelli

      HAS been doing over the last 5 years is the slow and steady march that the radical members hope will lead to banning much of the new deal.

      The way you do this is one piece at a time, and at each step you deny your ultimate aim.  Any lawyer of a certain age well remembers those idiotic Federalist Society meetings in Law School.  We made fun of them.

      I am not laughing now.  The lont term goal here is to re-instate Lochner.  They have been talking about this for 30 years.

      The bitter truth of deep inequality has been disguised by an era of cheap imported goods and the anyone-can-make-it celebrity myth - Polly Toynbee

      by fladem on Tue Mar 27, 2012 at 06:30:56 AM PDT

      [ Parent ]

    •  jWhy not? (0+ / 0-)

      why can't the same arguments be used to force you to buy broccoli, or an electric car?

      "I'm sculpting now. Landscapes mostly." ~ Yogi Bear

      by eXtina on Tue Mar 27, 2012 at 07:27:20 AM PDT

      [ Parent ]

      •  Because of the liberty right (1+ / 0-)
        Recommended by:
        Vicky

        found in the 14th Amendment.

        •  Being forced to eat broccoli would be prevented (0+ / 0-)

          but it is rather clear that you could be forced to buy broccoli or an electric car if the mandate were upheld.

          Alternatively, you could be forced to pay money to the federal government which could give it to broccoli or other farmers or electric car makers.

          •  Yes! in other words... (0+ / 0-)

            you could be taxed, and provided a tax benefit if you purchase an electric car? Like the tax rebates we already head on hybrids a few years ago? Yet civilization and libery did not end!

            The darkest places in hell are reserved for those who maintain their neutrality in times of moral crisis. --Dante Alighieri

            by uffdalib on Tue Mar 27, 2012 at 09:23:58 AM PDT

            [ Parent ]

  •  If private people can be forced to buy insurance (2+ / 0-)
    Recommended by:
    drewfromct, MGross

    from a private company or face a tax / penalty, can they be forced to buy guns, chewing tobacco, and confederate flags or face the same?

    •  More to the point (4+ / 0-)

      if the gov't. has the power to compel us to purchase private for profit health insurance in lieu of "socialized" medicine, then the door is not just swung wide open, but blown off the hinges to seeing Social Security scrapped and replaced by a mandate to buy into 401ks run by the likes of Skilling, Lay, and Madoff. From there it's a quick step to replacing public schools with corporate for profit charter schools. Next we're on to a mandate to buy into for profit police and fire depts.

      The Rethug goal is to shrink gov't, down to an entity whose only power is to compel citizens to purchase every essential service from private entities whose first and only concern is squeezing the highest possible profit while providing the very minimum of service.

      The mandate is a Rethug wet dream come true.

      Al Qeada is a faith-based initiative.

      by drewfromct on Tue Mar 27, 2012 at 06:23:12 AM PDT

      [ Parent ]

      •  Can't we at least pause at the fact (0+ / 0-)

        that the insurance companies were all about this?

        •  No. (2+ / 0-)

          Because it does not stop at health ins. That's just the beginning. If the mandate is allowed to stand, it will become precedent for all of the above and even more that we can't even begin to imagine right now.

          Always remember that the Rethug agenda basically boils down to two things: Exempting the rich from having to pay any taxes, and eliminating all public services and replacing them with manadatory use of private service providers which are free to charge as much as the traffic may bear in order to deliver the highest possible profit to owners.

          The Rethugs are out to destroy gov't. as we know it and transform society into some sort of high-tech corporate based neo-feudalism. Voting for a Rethug is the equivalent of hiring a radical vegan to operate a steakhouse. Their first order of business is to wreck it from the inside out.

          Al Qeada is a faith-based initiative.

          by drewfromct on Tue Mar 27, 2012 at 06:58:33 AM PDT

          [ Parent ]

      •  It doesn't compel you to by for profit insurance (3+ / 0-)
        Recommended by:
        sonorelli, Jacoby Jonze, xanthippe2

        If people want to form an insurance cooperative that runs as a non-profit they are permitted to do so.  The ACA has a section that promotes health insurance coops.  Their central aim is to force the industry to be answerable to consumers, to operate more efficiently and fairly. Unlike for-profit insurers, which must earn money for shareholders, co-ops are supposed to use their surplus to lower premiums or bolster benefits. Think of health coops as the credit unions of the health care industry.  To get them going, the ACA set aside $3.8 billion in start-up loans.

        •  Well, that's just peachy. (1+ / 0-)
          Recommended by:
          eXtina

          And who do you expect to form enough of these co-ops to give every consumer a real viable choice? You? Me? Credit unions are a great example, thank you. What is the present number of credit union customers vs. for-profit banks? What is the participation in local food co-ops vs the customer base of big grocerie chains?

          Don't forget that we can expect the same co-op "choice" to apply to schools, pension funds, first respomders, and etc. and so on.

          Al Qeada is a faith-based initiative.

          by drewfromct on Tue Mar 27, 2012 at 07:17:58 AM PDT

          [ Parent ]

          •  Credit unions are a great example (0+ / 0-)

            Credit unions added 1.3 million new customers in 2011, bringing total membership to a record 91.8 million by the end of the year, according to data collected by the National Credit Union Administration from the nation’s 7,094 federally-insured credit unions.  That means about a third of all adults belong to credit unions.  Who formed all those credit unions? Citibank? BoA? I'll tell you who, community members and employees of companies.  I don't see why the same can't happen with health insurance coops.

            •  Examples of how a credit unions formed and grew (0+ / 0-)

              Alternatives Federal Credit Union was formed in 1979 in the small city of Ithaca, NY. Membership was limited to members of area coops and employees of worker managed businesses.  At the end of 1979 it had $137,552 in deposits. Through the years it expanded who was allowed to join and the services it offered. Today it has 9,381 members and $72,984,518 in assets.

              The IBM Employee Credit Union came into existence on March 3, 1966 when eight IBM employees each contributed $5.00 of their own funds as seed money. Today that credit union has become the Visions Federal Credit Union, with membership open to all in the community.  Growing from it's initial 8 members to over 115,000 and bringing its net worth from its original $40 to an estimated $1.7 billion. This credit union has a huge presence in the area that it serves.

            •  Credit unions added more members (0+ / 0-)

              in large part because of the "move your money" campaign and heightened awareness of the toxic effects of TBTF banks on our economy. That's a great thing, but is it really enough? Will credit unions ever fully replace for profit banks, and even if they can, will it be soon enough to make the difference we need?

              We must also take into account that the Rethugs never stop, never give up, and always keep pushing for more. You can bet that the staunch foes of all regulation will be all in favor of harshly restrictive regulations to hamper and hamstring co-ops and other non-profits. Look to what they're doing to planned parenthood for example.

              Al Qeada is a faith-based initiative.

              by drewfromct on Tue Mar 27, 2012 at 08:36:54 AM PDT

              [ Parent ]

              •  The move your money campign (0+ / 0-)

                only accounts for a tiny fraction of the 91.8 million members in credit unions. And no, credit unions will never fully replace for profit financial organizations. The point is, that if you want to join a full service non-profit financial organization you can.  Health insurance coops don't need to fully replace for profit health insurance in order to have a big impact.  Once coops get established they don't need government funding, so I'm unclear why you think republicans will restrain health insurance coops once they get established.  Federal credit unions are large enough and have enough members that they are able to beat back legislative attempts to rein them in. The same thing will eventually be the case with healthcare coops. I anticipate that if a competitive health insurance coop can be established in my area that my company will offer it as one of the insurance plans we are allow to select. Yes, we have to be ever vigilant, but I don't think the battle for universal healthcare has to be an all or nothing fight between single payer now and some other mix until we can get to a more rational system.

                •  Let's be perfectly clear (0+ / 0-)
                  I'm unclear why you think republicans will restrain health insurance coops once they get established.
                  that Republicans, along with a significant number of Dems, are both ideologically as well as financially allied with  business interests which would love to wipe out the threat of non-profit competitors. I can't make it any clearer than that.
                  Yes, we have to be ever vigilant, but I don't think the battle for universal healthcare has to be an all or nothing fight between single payer now and some other mix until we can get to a more rational system.
                  I agree with this entirely, but the mandate to buy into for-profit insurance is harmful, counterproductive, a huge step backwards, and an ominous precedent for the future. If there is to be a mandate to buy into health insurance, it should be a mandate to join a co-op or buy into an expanded Medicare program, with consumers left with the option to purchase for-profit insurance should they so desire. I'm sure that the Republicans would just love to see a for-profit mandate with co-ops eliminated or so severely restricted as to be functionally untenable. Accepting a for-profit mandate is a huge win for them, and an even bigger loss for consumers who are already too tightly squeezed.

                  Al Qeada is a faith-based initiative.

                  by drewfromct on Tue Mar 27, 2012 at 09:25:15 AM PDT

                  [ Parent ]

          •  Health insurance coops that are forming (0+ / 0-)

            http://www.kaiserhealthnews.org/...

            http://www.beckershospitalreview.com/...

            It's not hard to find more if you care to look.

    •  Yes (6+ / 0-)

      Also Ford Trucks, Antelope Hearts, Dice, Peanut Butter, C*** Rings, DVDs of TimeCop...

      Also: The government can take your money and use it to kill people you've never even heard of.

      Not sure where you're going with this.

    •  Oh, please. (17+ / 0-)

      This is not a 'product' like tobacco.  EVERYONE uses health care, from before they are born.  The burden on society is weighed against the personal responsibility of the individual.  When did that get taken out of the equation and replaced by 'freedom'?  Freedom for everyone else to pay for your punctured lung in a car accident?  

      It would be one thing if an average person could afford to pay for his/her health care out of pocket.  It's a burden even for normal check-ups and some simple alllergy medication.  When my husband went  to the ER with excruciating pain in his neck, an x-ray was taken and he was prescribed valium and a pain pill.  The bill -- $3,500.  After paying BCBS for individual coverage for over 30 years and never filing a claim, the claim was denied because it wasn't life-threatening.  His 210/110 blood pressure from the pain wasn't life-threatening enough to give him the care for which he had been paying for 30 years.  

      So if you break your arm playing soccer with your friends in the park, the bill will be multi-thousands.  Even a young, healthy person can see that that would be a burden, much less a serious car accident or a cancer diagnosis, which is completely outside the affordability of normal people.  Or a preemie - how 'pro-life' are the Republicans if they would deny these children health care?

      I was not originally for the mandate unless there were significant regulations on the health insurance industry to make it affordable and accountable to health care needs. The bill does some of that, but of course not enough.  I'm not happy with this bill but it was the most significant step toward health care ever made by this country and we must keep the bill and make it better.  And it appears that it may end up being better than I originally thought.  

      A modest requirement to contribute to the health care system is reasonable, as long as the insurance companies have to provide affordable and decent health care.  This bill is an important step in that direction.

      •  Some of the outrage is phony. (1+ / 0-)
        Recommended by:
        Vicky

        They don't really care about being mandated to do anything, because of course you'll be mandated to contribute to a single-payor system too...and unlike a system where insurance companies are non-profit and premiums are subsidized, having an NHS is it...you don't like the care you're getting or think the attention isn't fast enough for you, you're SOL.

        They dislike the fact that a profit is being made, which I can understand, but like many arguments, wanting to win has made them throw in all other sorts of things that they don't really oppose.

        Today, strive to be the person you want to be.

        by GoGoGoEverton on Tue Mar 27, 2012 at 07:03:39 AM PDT

        [ Parent ]

      •  If that's true (0+ / 0-)

        'everyone uses health care' it's because that's the system in place and you are penalized for not using it or trying to work around it, due to gatekeepers and issues of litigation

        "I'm sculpting now. Landscapes mostly." ~ Yogi Bear

        by eXtina on Tue Mar 27, 2012 at 07:23:24 AM PDT

        [ Parent ]

        •  no, it's because (0+ / 0-)

          if the EMT's find you unconscious in your crashed car, or collapsed and unresponsive on the sidewalk, you get taken to the ER and stablized before you can talk. You do participate.

          The darkest places in hell are reserved for those who maintain their neutrality in times of moral crisis. --Dante Alighieri

          by uffdalib on Tue Mar 27, 2012 at 09:28:51 AM PDT

          [ Parent ]

      •  if they do, it's because it's a monopoly (0+ / 0-)
        EVERYONE uses health care
        and this further entrenches the current system as a monopoly

        "I'm sculpting now. Landscapes mostly." ~ Yogi Bear

        by eXtina on Tue Mar 27, 2012 at 07:55:50 AM PDT

        [ Parent ]

    •  Car insurance, unleaded gas, pasteurized milk... (9+ / 0-)

      There are all kinds of things the government forces you to buy NOW.  This is no different.  We have our choices limited by the government all the time, and almost always, it's to protect other people around us, or the society as a whole.

      That's what government is all about.  The idea that everyone should be able to do anything they want, is a formula for societal breakdown.

      •  You aren't forced to buy any of those. (2+ / 0-)
        Recommended by:
        eXtina, pjb927

        You are only required to have car insurance to drive on the public roads (and many states allow you to post a bond instead), and you aren't obligated to buy either unleaded gas or pasteurized milk.

      •  but there's a CHOICE (0+ / 0-)

        that's the key difference

        you don't have to buy any car or gas or milk

        "I'm sculpting now. Landscapes mostly." ~ Yogi Bear

        by eXtina on Tue Mar 27, 2012 at 07:21:42 AM PDT

        [ Parent ]

        •  What Choice? I don't need health services? (2+ / 0-)
          Recommended by:
          kareylou, a2nite

          The difference between my analogies and health insurance is that my analogies would harm me and no one else, while not getting health insurance means EVERYONE has to pay.

          I could go without driving or drinking milk and I would be the only one harmed.  But everyone will use health services, and if you don't have insurance, we ALL pay for your services.

          So if the Supreme Court rules you can't force people to buy health insurance, how in the world can they force me to use unleaded gas, or buy car insurance, or drink pasteurized milk, or do hundreds of other things that labor, environmental, safety, commerce ... laws force people to do now?

          You have but 3 choices, force people to buy health insurance, have the rest of us pay for their health costs, or deny them health services and let them die (hear the cheers from the Tea Baggers in the background).  Which is the better choice for the rest of us in America?

          •  I would add (1+ / 0-)
            Recommended by:
            pollwatcher

            let them die of perhaps communicable diseases. Out in public. Handing you your change at the store.

            To keep our faces turned toward change, and behave as free spirits in the presence of fate--that is strength undefeatable. (Helen Keller)

            by kareylou on Tue Mar 27, 2012 at 07:55:19 AM PDT

            [ Parent ]

          •  not true (0+ / 0-)

            I don't have health insurance and believe me, nobody (but me)  is paying for my services

            "I'm sculpting now. Landscapes mostly." ~ Yogi Bear

            by eXtina on Tue Mar 27, 2012 at 07:58:21 AM PDT

            [ Parent ]

            •  I hope you remain fortunate (1+ / 0-)
              Recommended by:
              pollwatcher

              enough to avoid emergency health care services. But time and chance take their toll on thousands of people every day. It's part of the health care problem.

              The darkest places in hell are reserved for those who maintain their neutrality in times of moral crisis. --Dante Alighieri

              by uffdalib on Tue Mar 27, 2012 at 09:35:12 AM PDT

              [ Parent ]

              •  I've been to the ER - because I was forced to (0+ / 0-)

                follow the monopoly of the system in place (to avoid litigation) and I paid those costs myself. I don't know why people think it's 'fortunate' when you proactively maintain your health. and why people assume if you don't have insurance you're automatically getting someone else to pay your healthcare bills. Sure accidents happen. This is the smallest percentage of the medical systems health care costs that can be covered by a really small low cost catastrophic insurance policy and even if it's not, this is hardly, HARDLY what is driving the out of control health care costs. It is the TINY MINISCULE exception to the rule

                "I'm sculpting now. Landscapes mostly." ~ Yogi Bear

                by eXtina on Tue Mar 27, 2012 at 02:24:11 PM PDT

                [ Parent ]

              •  Chronic diseases, mostly lifestyle driven, are (0+ / 0-)

                what is driving out of control healthcare costs. Avoiding them is not a matter of 'fortune' but taking matters into your own hands and making some tough decisions, some unpleasant, like not indulging in every little thing one might want to. Accidents are statistically negligible in the healthcare cost debacle.

                "I'm sculpting now. Landscapes mostly." ~ Yogi Bear

                by eXtina on Tue Mar 27, 2012 at 02:27:38 PM PDT

                [ Parent ]

                •  OK, here's the deal. (0+ / 0-)

                  It's not just about where the costs are. They come from a whole bunch of places. But one of the significant cost drivers is the risk profile of the insurance pool. Lots of younger, healthy folks don't want insurance.

                  I don't think we can (politically) cover the involuntary uninsured without forcing the voluntary uninsured into the pool. Sounds like that includes you.

                  The darkest places in hell are reserved for those who maintain their neutrality in times of moral crisis. --Dante Alighieri

                  by uffdalib on Wed Mar 28, 2012 at 02:37:47 PM PDT

                  [ Parent ]

          •  don't buy a car, don't drink milk (0+ / 0-)

            every example you could come up has an out. Except health insurance. If you want to be alive, you have to buy it.

            "I'm sculpting now. Landscapes mostly." ~ Yogi Bear

            by eXtina on Tue Mar 27, 2012 at 07:59:38 AM PDT

            [ Parent ]

          •  that's a policy argument (0+ / 0-)

            not a constitutional one

            You have but 3 choices, force people to buy health insurance, have the rest of us pay for their health costs, or deny them health services and let them die (hear the cheers from the Tea Baggers in the background).  Which is the better choice for the rest of us in America?

            "I'm sculpting now. Landscapes mostly." ~ Yogi Bear

            by eXtina on Tue Mar 27, 2012 at 08:01:00 AM PDT

            [ Parent ]

    •  NO!! (1+ / 0-)
      Recommended by:
      GreenSooner

      All laws have to have a rational purpose under the Constitution.

      The bitter truth of deep inequality has been disguised by an era of cheap imported goods and the anyone-can-make-it celebrity myth - Polly Toynbee

      by fladem on Tue Mar 27, 2012 at 06:34:48 AM PDT

      [ Parent ]

      •  Does DOMA? or the redundant (0+ / 0-)

        "No taxpayer funding for abortion act" that doesn't do anything at all? Or sodomy laws? or a whole host of placebo laws written and enacted purely on symbolic foundations? Is it a rational purpose to assuage the fears of paranoiacs?
        I guess what the constitution says and what congress actually passes aren't always in alignment.

        Class war has consequences, and we are living them.

        by kamarvt on Tue Mar 27, 2012 at 07:12:57 AM PDT

        [ Parent ]

        •  This (0+ / 0-)

          was  the basis for the Ninth Circuit's overturning of the anti-homosexual referendum in California.

          The bitter truth of deep inequality has been disguised by an era of cheap imported goods and the anyone-can-make-it celebrity myth - Polly Toynbee

          by fladem on Tue Mar 27, 2012 at 08:13:17 AM PDT

          [ Parent ]

    •  It already compells you to have a mortgage (5+ / 0-)

      or pay a penalty.  Is the federal government compelling people to finance houses?  Why do non-mortgage holders, people not subsidizing banks and other lenders, have to pay a penalty for not having a mortgage? Why is it constitutional to require that you have to hold a mortgage to get a tax break but not constitutional to require you to pay a penalty if you don't have health insurance? If the ACA is struck down then the mortgage interest deduction should be struck down.

    •  asdf (0+ / 0-)

      All American taxpayers are already "forced" to "buy" guns, and not even for themselves if they're not a member of the active duty military!

      More to the point, though, this has far more in common with transportation and environmental regulations than products on the private market.

      A comparison of health care to discrete consumer goods is as inapt as comparing a sovereign budget to a household one. It only works in the form of a bad analogy.

      it fitfully blows, half conceals, half discloses

      by Addison on Tue Mar 27, 2012 at 06:52:55 AM PDT

      [ Parent ]

    •  You mean like when the early government (0+ / 0-)

      forced sailors to buy insurance and forced all (white) men under 40 to buy and maintain a gun as part of their militia duties?

      Occupy the voting Booth!

      by anonevent on Tue Mar 27, 2012 at 07:11:52 AM PDT

      [ Parent ]

    •  If there is a compelling public interest (0+ / 0-)

      Then I would say yes.  I would leave it to Justice Breyer to come up with a balancing test describe just what degree of public interest would allow for such a mandate.

  •  to put it bluntly, a radical view (4+ / 0-)
    If adopted by the Court, it would cause the dismantling of our modern federal government, INCLUDING all federal criminal laws. For it is the Commerce power that underpins the creation of Social Security, Medicare and the EPA.
    isn't that the Republican's end game? Don't they want this all to be dismantled?

    What was the 'non-binding for future precedence BS they tacked onto the  Gore Vs Florida ruling?'  If they want to limit the potential 1937 full back-swing could the court try to  tack a similar such thing onto their ruling for this?

    •  I've thought about that. I've thought about (2+ / 0-)
      Recommended by:
      Hey BB, UtopianPablo

      the Roberts Court saying "this only applies to this particular law and to no other entity"

      "Nothing in all the world is more dangerous than sincere ignorance and conscientious stupidity." --M. L. King "You can't fix stupid" --Ron White -6.00, -5.18

      by zenbassoon on Tue Mar 27, 2012 at 06:23:57 AM PDT

      [ Parent ]

  •  thank you for a full description (8+ / 0-)

    and a thoughtful excerpting of hundreds of pages of arguments.  I am much clearer on the arguments which wil be presented.

    As my father used to say,"We have the best government money can buy."

    by BPARTR on Tue Mar 27, 2012 at 06:13:07 AM PDT

  •  Thanks for this background (6+ / 0-)

    and the reminder that the Court is not ruling on whether the ACA is good policy, and certainly not on whether it is popular. The Court can only properly rule on whether the act is constitutional.
    It seems clear to me that it is. Health care is clearly a part of interstate commerce, unless all Americans pledge never to cross state lines. If someone is visiting relatives in another state and they become ill or get in an accident, they will be treated, right? What about students who go to school out of state? What about people who would like to take a job in another state, but they have a pre-existing condition that prevents them from leaving the job they are in?
    I don't see how this can be ruled unconstitutional.
    When the law is ruled constitutional, that leaves only one remedy for those who would like to repeal it--the electoral one. People will be fired up to vote for Anyone But Obama and we will need to really get out the vote in November to protect this meager progress toward universal health care.

    To keep our faces turned toward change, and behave as free spirits in the presence of fate--that is strength undefeatable. (Helen Keller)

    by kareylou on Tue Mar 27, 2012 at 06:15:50 AM PDT

  •  On Charlie Rose there was a surprisingly unanimity (11+ / 0-)

    of the court deciding for the health care act by 6-3 or 7-2, including the conservative guy, who had close to contempt for the whole act.

    DailyKos comments seem considerably more pessimistic. Interesting.

    •  It will come down to Kennedy, barring a surprise (3+ / 0-)
      Recommended by:
      kareylou, pollwatcher, a2nite

      Alito, Scalia, and Thomas will rule to strike it.  Kagan, Ginsberg, and Breyer will rule to uphold it.  Take that to the bank.

      Roberts and Sotomayor will probably rule to strike and uphold, respectively, but both have a bit of an unpredictable, independent streak, and will sometimes rule opposite of what they're expected to just to demonstrate that they're not partisan.  I doubt that plays a part in something this big, but it could.

      Kennedy is a total wild card.

      •  Kennedy who voted for CU and Bush V Gore? (1+ / 0-)
        Recommended by:
        a2nite

        These were 2 cases where he clearly put his politics above the constitution, and I see no reason why he won't do it here in this critical case.

      •  Why? (0+ / 0-)

        Sure, this is possible, but to me this is just the conventional-wisdom thinking about the court in general on controversial issues.

        Sure, this is a political issue, but unlike Citizens United and Bush v. Gore, this decision has much more at stake as far as precedent goes. The Commerce Clause is an extremely important part of the Court's jurisprudence, and this is not the sort of issue the Justices will take lightly.

        Sotomayor will vote to uphold, regardless of some independent streak. The precedent is clear in in this case.

        Robert's decision hinges much more on Lopez then it does on some independent streak. He's not sitting there's thinking about whether he wants to be the maverick or not.

        Alito, I think, is the most difficult to pin down.

        Kennedy will vote to uphold, barring some unforeseen argument that somehow convinces him otherwise.

        Scalia, I think, will be looking for a reason to strike, but I think there's a good chance that if he can't win, he'll sign on with a concurrence.

        Thomas is the only one who will probably dissent no matter what.

      •  no you cant take it to the bank (0+ / 0-)

        Scalia could rule to uphold based on his prior rulings/writings.

        I concur Thomas will vote to strike it, and Alito is probable.

        This could very easily be a 7-2 or 6-3 decision, in fact, I'd guess a 5-4 decision either way is slightly less likely than those.

    •  It comes down to Kennedy... (1+ / 0-)
      Recommended by:
      kareylou

      But if Roberts sees it 5-4, he'd make it 6-3 so he can write the majority opinion.  Scalia would be the 7th vote.  Alito and Thomas are locks not to vote for it.

      If Kennedy votes against constitutionality than Roberts (and Scalia) would side with the Cons to find unconstitutionality.

       

    •  Wouldn't surprise me if it were 8-1 (0+ / 0-)

      With Roberts writing the decision.

      Of course, it wouldn't shock me if it was 5-4 striking down the mandate.

      "We calmly accept our uncertain position." Joey Rathburn. But HBO can kiss my ass for cancelling Luck.

      by Paleo on Tue Mar 27, 2012 at 07:17:28 AM PDT

      [ Parent ]

  •  It would be awesome (3+ / 0-)
    Recommended by:
    chipoliwog, Sychotic1, eXtina

    If court rules that government cannot force citizens to purchase health insurance, unless it provides the service itself as well. Then citizen can be asked to purchase it and get tax deducted, or not purchase it, and pay tax to be covered by government.

  •  A lot to digest. (4+ / 0-)
    Recommended by:
    kareylou, TofG, Sychotic1, UtopianPablo

    If Scalia is consistent (a big if), he will rule to uphold the ACA.  I will listen attentively today.

    If a carpenter built a cabin for poets, I think the least the poets owe the carpenter is just three or four one-liners on the wall. Mike Lefevre - steelworker

    by Bob Friend on Tue Mar 27, 2012 at 06:18:36 AM PDT

  •  Thanks, man. (5+ / 0-)
    Recommended by:
    kareylou, Bob Friend, TofG, PinHole, eXtina

    I was waiting for this.  I don't know law all that well, and need some assistance from someone who does.

    This is really good stuff.

    Now, I'm back to finishing it....

    Thanks again.

    --

    Republicans chap my ass

    Me

    by Marc in KS on Tue Mar 27, 2012 at 06:18:54 AM PDT

  •  What is the likely timetable (0+ / 0-)

    for a decision to be announced?  

  •  Ezra Klein - The Founders' health-care mandate (8+ / 0-)

    Act for the Relief of Sick & Disabled Seamen, July 1798

    ... It was a payroll tax that all sailors on private merchant ships had to pay, and in return, they were basically given access to a small public health-care system. But it was, in essence, a regulation against a form of inactivity: You were not allowed to not do something, in this case, pay for sailor's health insurance.  
    http://voices.washingtonpost.com/...
  •  Excellent preview. Thank you (0+ / 0-)

    Can't help thinking: Let them eat cake. Followed  by revolution.  

  •  Whackdoodles like Epstein hate the New Deal (0+ / 0-)

    what the New Deal did to them, I don't know, but they hate it, and the number one case that really gets their goat is Wickard v. Filburn.  All you have to do is just say "Wickard", or "Filburn" and these folks will go into orbit.

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

    by Cartoon Peril on Tue Mar 27, 2012 at 06:32:23 AM PDT

  •  7-2 vote upholding law or my name is Gingrich! (1+ / 0-)
    Recommended by:
    kareylou

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

    by Cartoon Peril on Tue Mar 27, 2012 at 06:38:03 AM PDT

    •  What justices? Why? (1+ / 0-)
      Recommended by:
      Cartoon Peril

      My only thought would be them continuing the trend of expanding Executive/Legislative powers, and saying the Lower Courts lacked Jurisdiction? I really cannot see the conservative judges being smart enough to realize what they would do to the Commerce Clause. If you say there is an issue with the individual mandate it is basically a reversal of the most important Commerce Clause decision-Wickard v. Filburn**

      Test: The activity can be reached if there’s a substantial economic effect on commerce

      I cannot see how you could say that (as Wickard allows and Civil Rights Cases) in the aggregate the Heath Care Decisions of the Citizens of the United States does not affect commerce. I would think it simple. Which is why it worries me. The Commerce Clause as is was very and is very important.

      I have no idea, I hope you are right.

      •  2 dissents will be from Thomas and Alito. (0+ / 0-)

        Roberts will want to write the opinion, and he won't want to be the guy who yanks away insurance coverage from newborns on account of "pre-existing conditions."

        Since I don't see the court separating out the mandate from the rest of the legislation, Roberts and Kennedy would have to go down in history with people like the Jew-hating anti-New Deal McReynolds.  I don't see that happening.  So that's six votes.

        Then there's Scalia, who painted himself into a corner with his medical marijuana opinion.  Poor Nino's in trouble now, but since this scheme is sufficiently statist and corporate (sorry, fellow Kossacks who may disagree!), that should be sufficient to get his vote, although he'll write a concurrence trying to limit the effect of the decision.

        Thomas hates the New Deal, look at how it harmed him with that horrible FDIC and social security!  Plus his wife's been making tons o'cash off opposing ACA, which he didn't see fit to disclose to anyone.  Presumably he talks with his wife.

        Alito is simply a Republican robot, he knows how to look up cases and spell useful phrases like ejusdem generis.  He'll go along with Thomas so the chump doesn't have to feel like the old man out.

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

        by Cartoon Peril on Tue Mar 27, 2012 at 08:43:05 AM PDT

        [ Parent ]

    •  This is a trick question, (1+ / 0-)
      Recommended by:
      Cartoon Peril

      Gingrich. That's really your name, no?

      The darkest places in hell are reserved for those who maintain their neutrality in times of moral crisis. --Dante Alighieri

      by uffdalib on Tue Mar 27, 2012 at 09:41:06 AM PDT

      [ Parent ]

  •  Help me understand (0+ / 0-)

    Why are insurance companies and republicans okay with state mandates to purchase car insurance, and yet they are against a federal mandate to have people purchase health insurance?  Up until a few years ago, in Wisconsin you weren't fined if you didn't have car insurance.  They have since changed that law.

    Just wondering if anyone has ideasinput as to why states can mandate for car insurance, but the feds can't mandate health insurance.

    •  A conservative was on Hardball last night (1+ / 0-)
      Recommended by:
      eXtina

      and her response was that an individual chooses to own a car.

    •  States have general powers to act (0+ / 0-)

      the feds have specific ones.   The Federal government can only act pursuant to a specific enumerated power.  The Supreme Court case is about whether the PPACA is within such a specific power.  

      •  Only rewording perhaps (0+ / 0-)

        The theory is (if you talk to some "state's rights" person- although don't get me started on "judges making law" if anyone ever feeds you that bull tell them that every single decision a judge makes is "law" liberal or conservative. You want to read things into the constitution it is a joke how these non activist judges treat the other Amendments compared to their pets. Show me anywhere in the constitution that it says an INDIVIDUAL has a right to bear arms . . . Now it is the law thanks to Scalia.

        Sorry.

        To get back to your Q:

        The Federal Governemnt- has enumerated powers meaning that their powers are directly spelled out in the constitution. If a power is not granted the federal government doesn’t have it
        The State Governments- Their powers are plenary, they are unlimited except by federal law, constitution, and state law.
        State and Federal Law Controversy? -> the federal measure controls. Federal Powers Supersede state laws.

        But, basically by virtue of the Commerce Clause Congress can regulate anything, as I say in a lengthy comment give me any random object and I can show you how the Commerce Clause gives the FEDERAL government power to act. . . .

    •  I know lots of people who don't have car (0+ / 0-)

      insurance.

      they don't have cars. There's no 'if' with the mandate. ONly dying is the out.

      "I'm sculpting now. Landscapes mostly." ~ Yogi Bear

      by eXtina on Tue Mar 27, 2012 at 07:14:46 AM PDT

      [ Parent ]

  •  long run (0+ / 0-)

    In the long run--we, the left, loses.  Right wingers on the High Court are younger, and replacement justices will have to pass the cloture test --Dems will never get 40 Senators to filibuster--Repugs definitely will.  The result will be a more purely Roberts' court--and the decline of the American Dream is guaranteed.  

    Apres Bush, le deluge.

    by melvynny on Tue Mar 27, 2012 at 06:43:30 AM PDT

  •  After sampling some of the early comments (10+ / 0-)

    I can only hake my head.

    FTE, I think the mandate is not good policy. BETTER policy would have been auto-enrollment and tax for uninsured in a public insurance program.

    But the question before the Court is not what would be good policy but whether  the Constitution permits the actions taken by the Congress.

    Under the settled precedents, some nearly 200 years old, the answer is clearly yes.

    Reading "they can't do that!" comments at Daily Kos gives me a sad.

    •  I'm haking my head too (3+ / 0-)
      Recommended by:
      Armando, Gary Norton, Vicky

      I was wondering where you were, since you've been active in 'bud-nipping' tripe the past couple days rather effectively. But this one has definitely gone off the rails: "She turned me into a newt" combined with "Bright shiny object - over there!"

      Please continue this series with Adam. It is worthwhile and all readers are not commenters.

      Oh, and thanks.

      Am I right, or am I right? - The Singing Detective

      by Clem Yeobright on Tue Mar 27, 2012 at 06:48:51 AM PDT

      [ Parent ]

    •  I won't say "clearly yes" (1+ / 0-)
      Recommended by:
      Gary Norton

      I'm more in the "probably yes" category.

      Really, if they aren't willing to reverse Wickard v. Filburn then it seems like a real stretch to strike the mandate.

      We started down this road long ago.

      •  Because of Wickard it is clearly a "yes" (0+ / 0-)

        Wickard and Civil Rights Cases.

        Wickard (for those that don't know)
        The activity can be reached if there’s a substantial economic effect on commerce. AND you can aggregate a single instance to get there

        Wickard- Dairy farmer (Filburn) in OH sued the Secretary of Agriculture to stop enforcement of a marketing penalty based on an act which set a quota for wheat he could produce which he exceeded. Filburn's extra was wheat to feed his livestock, use for seed, make flour for home consumption and sell some, he exceeded his quota by 16 bushels and was fined 117 bucks.

         The Problem-the Act extends regulation to production not intended in any part for commerce by for consumption on the farm.

        Far reaching solution (but built on along with Civil Rights cases): AGGREGATION:

        “That his own demand for wheat may be trivial by itself, but the aggregate of people like him adding to demand and the wheat problem is not trivial”.
        -> his homegrown wheat competes with wheat in commerce because he doesn’t need to go out on the market

        My Choice as an individual is second fiddle to the choice of Ohioans in the aggregate. If we choose not to have health insurance it has a substantial economic impact on others who may not be covered. Thus it should be able to be regulated under Wickard pretty easily.

    •  Do you think the SCOTUS finding against the (1+ / 0-)
      Recommended by:
      Gary Norton

      mandate would open the door for private hospitals to decline to provide HC for uninsured and unable to pay individuals? I'm sure that would cost them any subsidies from the state/fed, but still some may opt for that.

      Today, strive to be the person you want to be.

      by GoGoGoEverton on Tue Mar 27, 2012 at 07:05:27 AM PDT

      [ Parent ]

      •  I have not thought about that question (1+ / 0-)
        Recommended by:
        Gary Norton
        •  The real question would be whether the Federal (0+ / 0-)

          law requiring hospitals to treat people irrespective of their ability to pay would pass Constitutional muster.

          As you say most Federal regulatory legislation adopted in the last 80 years relies on the Commerce Clause for its authority. The challengers would not just take the Commerce Clause back before the New Deal, they almost take it to the Articles of Confederation.

          Further, affiant sayeth not.

          by Gary Norton on Tue Mar 27, 2012 at 08:31:29 AM PDT

          [ Parent ]

      •  It has a HUGE impact on Private Hospitals (or any) (1+ / 0-)
        Recommended by:
        Gary Norton

        Ideally, the individual coverage mandate of the Affordable Care Act would benefit hospitals by increasing the number of insured patients, as would a mandate that would increase the number of patients qualifying for Medicaid. Hospitals will also be able to earn incentives for enacting quality of care initiatives.

        If you take away the mandate. I don't see how the rest stays. As it is to balance out financial challenges created by other federal reform measures scheduled to take effect in coming years, such as reduced Medicare reimbursement rates and new penalties for high readmission and hospital-acquired infection rates. If the individual mandate is rejected by the Justice Department, however, these other future aspects of the bill could also face alteration

        The AMA has voted in support of the individual mandate to the Supreme Court back in January. The AMA also pointed out that the reform bill could have detrimental effects on hospitals if the individual mandate is the only portion of the law to be struck down or changed. They actually submitted an Amica Brief.

        I imagine if you look at it (I have not) it probably discusses why they view the individual mandate as necessary, etc. Here's a link to their brief

        http://www.aha.org/...

    •  My head is also shaking at the comments. It (1+ / 0-)
      Recommended by:
      Vicky

      seems that there are many who can't deal with the law as it exists. Many may think that if the ACA dies there will be a clamor for single payer. I'd suggest they look at the votes in 2010.

      Moreover, some comments favoring the Republican broccoli argument seem to come from people who did not bother to read your excellent synopsis or any other relevant materials. The Republicans know that argument is silliness for the tea party, but some here seem to have bought it.

      Ah, wither Dailykos.

      Further, affiant sayeth not.

      by Gary Norton on Tue Mar 27, 2012 at 08:25:20 AM PDT

      [ Parent ]

  •  I don't understand how Thomas can rule... (1+ / 0-)
    Recommended by:
    kareylou

    In ANY court in the land, Clarence Thomas would have to recuse himself.  He changed his financial disclosure statements (20 YEARS WORTH!!) because he "forgot" to mention that his wife is a lobbyist for one of the organizations fighting the bill.  He has a VESTED interest since his wife is MONATARILY compensated for her views so HE is MONATARILY compensated for her views as well.

    The lawyers HAVE to request that he recuse himself, right??  I mean, can you IMAGINE if Sonya Sotermayer's husband (!) was a liberal working on this, EARNING $$ ON THE ISSUE, and HER not recusing herself??  Their heads would EXPLODE.

  •  Narrow (2+ / 0-)
    Recommended by:
    kareylou, Clem Yeobright

    It seems that the states, in pursuing the broadest possible reasons why ACA is unconstitutional (the Commerce Clause is negative, not positive) have assured an uphill climb for themselves since the justices likely don't want to singly-handedly demolish American governance at a stroke by taking it back 75 years. The level of disruption would be extreme, and quite "activist" consider the SCOTUS has allowed the modern interpretation of the Commerce Clause over and over and over and over and over...

    Here I think we have to thank the Tea Party and the "tenthers", as they ensured that only the most extreme argument against the ACA would be accepted.

    Again, I think the main threat the ACA faces is if those justices inclined against it can find something that applies solely to the ACA which they can build their constitutionality case around. As long as the government can show that the ACA's components are more or less identical to the parts of various other programs, it's safe.

    This is a "political" common sense argument and not a legal one, mind you.

    it fitfully blows, half conceals, half discloses

    by Addison on Tue Mar 27, 2012 at 06:45:27 AM PDT

    •  The activity.inactivity argument (2+ / 0-)
      Recommended by:
      Addison, Vicky

      is the tool for that.

      •  I thought they had a decent argument for that... (0+ / 0-)

        Isn't the government's plan for this to say that the concept of "inactivity" in the health care market is illusory? That, given "health" is not the same as a VCR or a ballpoint pen, not buying health insurance isn't the same as not participating in the overall health care market? That since all people have "health", all people are already active in the "health market" by default? Maybe I made this up...

        But, yes, I'm not well-versed enough to know if the inactivity/activity issue affects other programs, but if it doesn't then I think the justices would target that over broader issues. Again, this is just layperson opinion based on my thinking the Court doesn't want to blow up the fundamental machinery of the federal government at this point in time.

        it fitfully blows, half conceals, half discloses

        by Addison on Tue Mar 27, 2012 at 07:14:52 AM PDT

        [ Parent ]

        •  I think the N&P argument the more powerful (1+ / 0-)
          Recommended by:
          Vicky

          If for the effectiveness of an admittedly valid regulatory regime, the government can reach SOLELY intrastate activity, why then could it not reach Inactivity?"

          UNLESS you assert a liberty interest which NO ONE HAS.

          N&P is the key.

  •  We're all paying for the uninsured (2+ / 0-)
    Recommended by:
    ygdrasl, Mistral Wind

    (A point made earlier)

    In NYS uncompensated care (more than a billion dollars a year), is funded through a mechanism known as the bad  debt and charity care pool. It's driven by an abstruse formula, and your state probably has something simpler, but the gist is this --- about 1/3 of NYS health care facilities would shut their doors unless some mechanism existed to reimburse health care providers for non-payment of medical bills.

    Other ways to accomplish this end is to charge each of us more for the insurance we pay, cost shifting, and tack on formulas to medicare and medicaid rates. Medicare and Medicaid have something called disproproportionate share add-ons. (Not sure where that funding device is heading after ACA.)

    Conservatives have also argued -- just go to the ER. Well, in my hospital, the average cost of an ER visit is 2X that of the average cost of a clinic visit.

  •  Perhaps congress should have (1+ / 0-)
    Recommended by:
    wishingwell

    have levied a tax on all forms of income to cover the cost of providing health care to all, and then paid the tax receipts directly to private, for-profit health insurance companies.  If the aim of the legislation were twofold, to keep the private insurance market in business while at the same time providing universal coverage, this avenue would seem to meet all objections to the current plan.  No individual would be mandated to purchase coverage, rather the federal government would be purchasing coverage on behalf of each individual.

    On the other hand, a tax collected by the government to use to pay health care providers directly for basic care would still allow a private health insurance market to exist in the provision of supplemental insurance to cover such situations not defined as "basic" in the legislation.  This would limit the range of services to be provided by private health insurance companies, but such a market, however curtailed, would continue to exist.

    The path taken by passing the ACA would seem  to have been chosen specifically to bring up such questions as now face the court.  I can't help but wonder why this law was structured the way it was - what powers outside the legislature compelled congress members to choose this complicated, convoluted and legally argumentative  path to reform of the country's health care delivery system.

    "In this world of sin and sorrow there is always something to be thankful for; as for me, I rejoice that I am not a Republican." - H. L. Mencken

    by SueDe on Tue Mar 27, 2012 at 06:47:25 AM PDT

    •  The House version of ACA (0+ / 0-)

      did that ironically.

    •  I wish our government was capable of (2+ / 0-)
      Recommended by:
      wishingwell, Mistral Wind

      a direct tax that was unquestionably and incorruptibly applied to the problem it was taken to fix. My locality took an extra 5% dining-out tax and funneled it directly to the schools, resulting in NOT ONE teacher being laid off through the recession. It was so awesome that even the conservatives are backing re-instating the tax (the tax ended as it was written to...which risks cutting off the stream of money but speaks even better to the ethics of the best local Democratic governance EVAR!)

      Today, strive to be the person you want to be.

      by GoGoGoEverton on Tue Mar 27, 2012 at 07:08:15 AM PDT

      [ Parent ]

  •  Very nicely done diary; I can only add (2+ / 0-)
    Recommended by:
    eXtina, Mistral Wind

    That of course the mandate/penalty on the ACA is a tax. Yes I am aware of the legalized rationalization, but I think if you ask any ordinary person - i.e. the ones who would pay, then this is a tax, no different IMHO than the buck a pack cigarette tax. It seems that only lawyers and supreme court justices think otherwise. Not that I am against this particular tax, of course; I also am in agreement with cigarette taxes. I just believe in calling things as I see them

    An empty head is not really empty; it is stuffed with rubbish. Hence the difficulty of forcing anything into an empty head. -- Eric Hoffer

    by MichiganChet on Tue Mar 27, 2012 at 07:00:59 AM PDT

  •  I can't find a way to disagree with this argument (0+ / 0-)
    The Constitution grants Congress the power to regulate commerce, not the power to compel individuals to enter into commerce. That distinction is fundamental
    This is the distinction with all other comparisons and supposed precedents. No other examples force the person to enter into commerce, by virtue of their existence as a human being residing in the US. All exemptions arise from inability to obtain it, not the philosophical disagreemen that they can be forced to have it.

    It 'codifies' (I know wrong word) the insurance industry and the health industry as the standards of health care providers. Aren't we allowed to disagree there are other ways of obtaining health care other than the one the government has decided is the correct way?

    "I'm sculpting now. Landscapes mostly." ~ Yogi Bear

    by eXtina on Tue Mar 27, 2012 at 07:07:22 AM PDT

    •  The Necessary and Proper clause (6+ / 0-)

      Please review my discussion of that provision.

      As for what you like as policy, sorry, that's not the test for constitutionality.

      •  But the government is saying that's the way (0+ / 0-)

        you have to get health care. How can the government tell you how to obtain your health care?

        I did read the necessary and proper clause, and am asking for clarification. I hope you're not a teacher.

        "I'm sculpting now. Landscapes mostly." ~ Yogi Bear

        by eXtina on Tue Mar 27, 2012 at 07:31:06 AM PDT

        [ Parent ]

        •  That's ean easy question (2+ / 0-)
          Recommended by:
          Gary Norton, Vicky

          The Congress has an absolute power to regulate interstate commerce, subject to prohibition contained in the Constitution. (liberty rights, federalism, etc.)

          Did you read my post? Did you read the excerpt from Gibbons? How about the excerpt from Raich? Comstock?

          How so you think Social Security and Medicare are constitutional?

          •  So why won't the gov't be able to force you to (0+ / 0-)

            buy broccoli or an electric car?

            "I'm sculpting now. Landscapes mostly." ~ Yogi Bear

            by eXtina on Tue Mar 27, 2012 at 07:48:02 AM PDT

            [ Parent ]

            •  On the first (1+ / 0-)
              Recommended by:
              Vicky

              because the liberty interest found in the 14th Amendment would preclude it.

              On the second, it would do so by banning all cars that are not electric cars. Or do you think they can't do that? Cuz you'd be wrong.

              •  Obviously the question implies (0+ / 0-)

                forcing you to buy a certain vehicle with other options on the market.

                then the liberty interest/14th amendment should apply to health insurance

                "I'm sculpting now. Landscapes mostly." ~ Yogi Bear

                by eXtina on Tue Mar 27, 2012 at 08:05:39 AM PDT

                [ Parent ]

              •  even if you don't or can't drive any car (0+ / 0-)

                say you're blind or live in a city, and don't want or need a car - why can't the government force you to buy an electric car? Why does that argument not apply to health insurance? Because 'everyone' needs health care? That's an assumption. They will of course need to buy/use it if they're forced to purchase it.

                "I'm sculpting now. Landscapes mostly." ~ Yogi Bear

                by eXtina on Tue Mar 27, 2012 at 08:23:34 AM PDT

                [ Parent ]

          •  I would Add the Racial Discriminations are (0+ / 0-)

            Important to the discussion as well, just based on how others could understand.

            Some may not get Stare Decisis. You are supposed to follow the past decisions to the extent you can. Of course lawyers on one side usually do everything they can to distinguish, and lawyers defending do everything they can to say it is the same.

            But based on Stare Decisis the interpretation is there, I agree making it an easy question. And the correct interpretation absent overturning Wickard is to allow this.

            The Racial Discrim Cases:

            Discrimination Cases

            1. Heart of Atlanta Motel v. United States.  The Court used the Commerce Clause to sustain a law challenged by someone in Atlanta that wanted to be able to refuse rent to African Americans.
            -> How their discrimination impedes interstate commerce- It impedes interstate travel both in impairing their convenience and discouraging travel of blacks
            -> So the power of commerce to promote interstate commerce also includes the power to regulate the local incidents thereof, including local activities in both the states of origin and destination that might have a substantial and harmful effect upon that commerce.

            2. Katzenbach v. McClung- Court upheld the application of title II to A restaurant in Alabama with a  seating capacity of 220 and 11 blocks from an interstate highway.
            1.) because AA's couldn’t buy prepared food served on the premises except in an isolate and unkempt restaurant, this discourages travel and obstructs interstate commerce because you can’t travel without eating.

            This is how powerful and far reaching the Commerce Clause became (and should be). Otherwise those cases would be decided otherwise.

            •  I think Lopez is really Important (0+ / 0-)

              Not quoted, great diary. But they cite to.

              I say that because you had an instance of the Justices actually striking down something based on the Commerce Clause. The dissent and concurring opinions are very telling. Could very well resemble what we get. I have no idea, I would need to read the diary 10 times to get it probably. This is difficult con-law even for lawyers :-)

              The Lopez parts worth pointing out:
              1.) Souter- Reminds us on 165/177 He’s saying that the reason we let Congress do virtually anything is trying to interpose the Court between Congress and the Commerce clause may be the end of the Court. The tightrope I mention down page. (re why the Court is relevant, how Wickard was needed, if held otherwise USSC would cease to be relevant).
              2.) Equal import- Kennedy and O’Connor opinion concurence- agree it’s unconstitutional, they say in part what Souter was saying, that we don’t want a return to 1937.   What they are saying is that we are not going back to pre 37 jurisprudence  “The court has an immense stake in the stability of our Commerce Clause jurisprudence as it’s evolved” 159.

              I could see them chipping away but getting these concurrences.  I agree with you though.

    •  They are entering it every time (2+ / 0-)
      Recommended by:
      kareylou, Vicky

      they go to the doctor.  If they go to the emergency room.

      Now, it's possible that some people may never go to the doctor or the emergency room during their lifetimes.  But should those very, very control the power of congress to address a national problem?

      "We calmly accept our uncertain position." Joey Rathburn. But HBO can kiss my ass for cancelling Luck.

      by Paleo on Tue Mar 27, 2012 at 07:25:21 AM PDT

      [ Parent ]

  •  8-1 (2+ / 0-)
    Recommended by:
    Paleo, wishingwell

    Roberts, for the majority
    w/ Ginsburg, Sotomayor, Breyer, Kagan, Kennedy

    Alito, concurring

    Scalia, concurring

    Thomas, dissenting

    Call me optimistic. But I just think its clearly constitutional, and  once Roberts and Kennedy make clear they are siding with the majority, I don't see Alito and Scalia taking the political stand.

    This ain't about the gays, after all.

    •  I think you're right (2+ / 0-)
      Recommended by:
      shoeless, wishingwell

      This is clearly distinguishable from Lopez and Morrison.  And I agree that if that's the vote, Robert will write the opinion.

      But with this court, who knows.

      "We calmly accept our uncertain position." Joey Rathburn. But HBO can kiss my ass for cancelling Luck.

      by Paleo on Tue Mar 27, 2012 at 07:12:58 AM PDT

      [ Parent ]

    •  You're optimistic (1+ / 0-)
      Recommended by:
      wishingwell

      6-3 at best.

      •  I don't know. I think that Scalia (1+ / 0-)
        Recommended by:
        wishingwell

        is gettable.  Alito and Thomas, no.  But I think that Scalia might just come around on this one.  7-2 is possible.

        Ultimately, the only thing that matters with respect to preserving choice is who will be nominating the next Supreme Court Justices.

        by Its the Supreme Court Stupid on Tue Mar 27, 2012 at 07:19:19 AM PDT

        [ Parent ]

        •  Why not Alito? (1+ / 0-)
          Recommended by:
          Paleo

          Read his Comstock concurrence. If Scalia is game, I don't see why Alito wouldn't be.

          •  Alito will follow Roberts (0+ / 0-)

            Maybe not follow follow, but vote the same way.

            Scalia is probably more likely to vote to uphold than those two.

            "We calmly accept our uncertain position." Joey Rathburn. But HBO can kiss my ass for cancelling Luck.

            by Paleo on Tue Mar 27, 2012 at 07:29:53 AM PDT

            [ Parent ]

            •  This is why I'm saying 8-1 (0+ / 0-)

              You say Scalia is more likely to uphold than Alito and Roberts.

              Yet is Roberts, as CJ, really going to dissent in a 6-3 decision just to make a point?

              And is Alito, who sided with the majority in Comstock, going to find the N&P clause less useful in this context then there, while Scalia does the opposite?

              My take away from all this disagreement on who is most likely to be in the majority is that they all, save Thomas, have good reason to be.

        •  Hope your are right (1+ / 0-)
          Recommended by:
          Vicky

          Today will be a revealing day.

      •  Without looking at individual justices, (1+ / 0-)
        Recommended by:
        Losty

        and only the issue, including the political ramifications behind it, I think that's absolutely correct: 6-3.

        But when we look at each justice, it seems so difficult to predict which are most likely to vote against it.

        The reason for that, I think, is that other than Thomas, each of them has a good reason for voting to uphold.

        That's why I think that unless its a 5-4 decision to strike, the dominos are likely to fall.

        Roberts, Scalia, Kennedy and Alito each would have a difficult task of getting around their past decisions in order to find a reason to strike. I think each of them is capable of doing so, I just don't see what reason they would have unless they all agree to do so.

        They are better off, in my mind, writing a concurrence (especially Alito and Scalia) clearly stating why they feel like this case fits within the current limits and does NOT expand federal power.

        •  Political reason will not allow it to be 8-1 (1+ / 0-)
          Recommended by:
          lysias

          or even 7-2 as too many Republican politicians have skin in the game claiming it's unconstitutional.  If it was an 8-1 decision it would be a huge rebuke to the AG's who claimed unconstitutionality and the GOP who screamed as much from the roof-tops.  

          This will be 6-3 at best, with it being said in Con circles that Roberts only found with the majority in order to write the opinion and Kennedy will be ultimately blamed by the Cons.  

    •  TPM had article that Roberts tipped his hand... (0+ / 0-)

      ... in favor of the taxing power argument.

      “The idea that the mandate is something separate from whether you want to call it a penalty or tax just doesn’t seem to make much sense,” Roberts said, over strong objections from attorney Gregory Katsas. “It’s a command. A mandate is a command. If there is nothing behind the command, it’s sort of, well what happens if you don’t file the mandate? And the answer is nothing. It seems very artificial to separate the punishment from the crime. … Why would you have a requirement that is completely toothless? You know, buy insurance or else. Or else what? Or else nothing.”

      http://tpmdc.talkingpointsmemo.com/...

      No snowflake in an avalanche ever feels responsible.

      by Magster on Tue Mar 27, 2012 at 08:38:12 AM PDT

      [ Parent ]

      •  As a political argument, (0+ / 0-)

        upholding the ACA on the tax power gives the Republicans "socialist Obama raised taxes for Obamacare!!!" campaign slogan. Finding the ACA constitutional on the taxing power isn't a total loss for Republicans in an election year.

        No snowflake in an avalanche ever feels responsible.

        by Magster on Tue Mar 27, 2012 at 08:40:58 AM PDT

        [ Parent ]

  •  if ACA is struck down - we must go Single Payer (2+ / 0-)
    Recommended by:
    eXtina, lysias

    because is based on taxes - and as such constitutional

  •  The reason this is even a question: (0+ / 0-)

    It's because the 99% have capitulated, compromised, jettisoned their agenda in the spirit of "getting things done", too many times.

    The 1% doesn't compromise.

    When you look at the landscape of the U.S. over the past 30 years it becomes very clear whose agenda has been materially advanced, again and again.

    And who has lost.

    The 1% doesn't compromise.  They don't capitulate.  They do not abandon pieces of their agenda under the argument of being "too pure".

    It's why we are where we are.

    It's why we consistently lose across a broad spectrum of issues important to us.

    We will be told we have to be "grown up".

    We will be told we have to "compromise".

    We will be told this is a center-of-right country, despite having elected an African American as our President.

    We will be told we must appeal to the "center".

    Perhaps, the most insulting of all:

    We will be told we can only progress by electing those Democrats who will repeat the above memes while we continue to lose ground.

    And as we lose ground we are encouraged to be satisfied that things could get worse.

    Oddly, they do get worse.

    But then our expectations are lowered yet again.

    What was worse yesterday becomes our position today.

    And on it goes.

    We are told to clap.  And many of us do.

    Including the 1%.

    It isn't that Obama hasn't Changed anything; It's that his actions advance the 1%'s interests.

    by Johnathan Ivan on Tue Mar 27, 2012 at 07:23:05 AM PDT

  •  Non Justiciability of Political Questions? (0+ / 0-)

    This is the first thing I thought of from my Con Law days. I loved that class. Primarily because the teacher was unlike most others; he frustrated my fellow students by not giving them the "black letter law" and challenging them to think about the United Supreme Court as a tenuous body.

    I remember him discussing the "Slaughterhouse Cases" and New-Deal. It provides a good example of the tight-rope I am surprised they are walking.
    You have the New Deal, and judges who just have ruled that child labor is a "right" (as in children have a right to work in dangerous conditions with little safety for 12 hours a day 7 days a week) and the slaughterhouse cases get decided. These along with a few other I can think of are known as the worst cases the Supreme Court has decided ("3 generations of Imbeciles is enough" is pretty horrible from Buck v. Bell is chilling and just horrible- a case about FORCED sterilization where they said it was OK). Then you begin to get threat of the Court Packing Plan. The tight rope they walk. . .

    The USSC has what?  20 bailiffs? Why do we listen to them? The President has the most powerful military in the world, could add 20 justices if he wanted. They know that. They have to walk a very fine line then to stay out of the way, and continue to be listened to, because at any one point when they lose the privilege of relevance it all collapses (which it almost did after the slaughterhouse cases) (almost have which is why they reversed course and created the commerce clause).  

    And this is something that they recognize. Which is why I find it strange they would take this case (I found it strange they would take Bush v. Gore as well, especially considering Scalia might as well have said "get me a Brennan Decision" and vice versa- some might get the point, ie suddenly it wasn't state rights for the states rights guys but the same can be said of the others).

    I have to hope that they understand what they are doing. I do not know the underlying decisions. I just don't have time to read caselaw. But I do not see how you can make a ruling affecting the commerce clause and not turn things like the Civil Rights Act even into question. I wonder if they are going to defer to the Political Question doctrine and say "this is within the realm of Congress to decide"- a convenient way of avoiding flack/making bad law.  

    But I do not know this Court like say we knew the Court from "The Brethren".  I would have thought cert would be denied because of the Political Doctrine. My Professor taught me things like this that was more than your average student wants to know.  Justices in the real world have to think of if they really want to take on the political and social establishment of a number of states.
    Example: When Mental Hospitals were getting out of control, every state had court orders telling state hospitals what to do (it would be like courts telling Marshall how many bathrooms to have), the USSC just chose to turn down appeals, they didn’t want to answer the question

    The magic Language is from Baker v. Carr:

    A textually demonstrable constitutional commitment of the issue to a coordinate political department” another strand “ lack of judicially discoverable and manageable standards for resolving an issue”
    Another Strand suggests- resolution of issues ought to be avoided where they are too controversial or could produce enforcement problems or other institutional difficulties.

    OK what if they decide on the Commerce Clause? I do not see how it will not threaten so much that has been done in about the last century.  We played a game in Law School. Basically it was under the Commerce clause -as interpreted since 1937, through Wicker v. Filburn, and the Racial Discrimination cases, is there a single thing that anyone could think of that could not be regulated by the Commerce Clause?  I would be willing to show you how it works now. Think of any item on your desk and I will tell you what Wicker says now (and state cases).

    Sorry for this Piecemeal Conlaw consideration. I as a lawyer find it interesting. And do not have enough time to say everything, so hoped some of what I write is taken up by someone else who knows why they are ignoring the Political doctine, or knows better what aspects of the Commerce Clause they attack.

    But as of now, I don't see how it could in any way be good to limit the commerce clause. Without it you are at Marbury v. Madison or the Slaughterhouse cases.

    While it is so broad, it had to be for the Discrimination cases. And so much more, all important. But it does mean that yes any item you could name I could tell you how the Federal Goverment can regulate, it was fun/interesting in class, I think I can pretty much equal what he says. I mean think of a bottle top off of a used bottle etc. And I will show you how important the Commerce clause is. Or a piece of paper that you printed and threw away, whatever, lint, the most obscure thing you can think of, right now the commerce clause I can promise you can be reasoned to allow Federal government regulation. Seriously, I am interested to see if I can match my Professors ability to show how far-reaching, but implicitly important, and how important Baker and the Civil Rights Cases are. Sorry this is my first commment

    •  Sorry for length 1st Comment (0+ / 0-)

      Ever for me. I signed up in some other UN 5 years ago, forgot my password and just have lurked. Signed up again, and am glad I chose to say something.

      But seriously Excellent diary even from (I hope) a decent lawyer's perspective. But I think I can add to the below comment, just name any item however obscure, and hopefully (with help when they see where I am going with it) you will see just how important the interpretation of the Commerce Clause is.

      I like to think I know what I am talking about. I don't do Constitutional law, not many firms out there other than those that work for the Porn Industry (seriously- they speciialize in 1st amendment-my favorite class was the "obscenity" class and how my prof did that in 1st AMendment- took after Con Law). I hope I am saying what my profs taught considering they give me glowing recommendations for having been so high in my class, etc.

  •  Excellent diary (1+ / 0-)
    Recommended by:
    Vicky

    The federal government compels you to act all the time. In fact, almost everything they do is some form of coercion upon another party to act where before they were not acting. So what if that act also includes buying something? How exactly do you comply with a federal law regulating emissions if you don't buy something in order to satisfy the regulation? Is it because it is universal? Where does it say that in the constitution? Your arguments are well done and you framed them perfectly. Thank you.

    Do facts matter anymore?

    by Sinan on Tue Mar 27, 2012 at 07:28:34 AM PDT

  •  5-4 one way or the other. (0+ / 0-)

    Thomas' wife is owned by the billionaires who own the teabaggers. Scalia is an extreme right-wing activist, and he controls Thomas in any case. Roberts and Alito are avowed corporatists, who will always work against the good of the general public. As usual, Kennedy will be the swing vote. Unfortunately, he seems to tag along with the four horsemen of the apocalypse these days.

    “Organized money hates me--and I welcome their hatred!” ― Franklin D. Roosevelt

    by shoeless on Tue Mar 27, 2012 at 07:33:57 AM PDT

    •  If it's 5-3 for without Roberts, won't Roberts (0+ / 0-)

      join the majority just so that he can assign himself the writing of the opinion of the court?

      The influence of the [executive] has increased, is increasing, and ought to be diminished.

      by lysias on Tue Mar 27, 2012 at 11:26:29 AM PDT

      [ Parent ]

  •  MSNBC: Pretty clear 4 votes to uphold, Not 5.. (1+ / 0-)
    Recommended by:
    Vicky

    Conservative members asking ?s, Not Others

  •  Update on the argument: SG's argument (1+ / 0-)
    Recommended by:
    kareylou
    We are halfway through the mandate argument; the SG is done. It is essentially clear that the four more liberal members of the Court will vote in favor of the mandate. But there is no fifth vote yet. The conservatives all express skepticism, some significant. They doubt that there is any limiting principle. But we’ll know much more after the other side goes because arguments are often one-sided like this half way through.
    http://www.scotusblog.com/...

    "We calmly accept our uncertain position." Joey Rathburn. But HBO can kiss my ass for cancelling Luck.

    by Paleo on Tue Mar 27, 2012 at 08:07:01 AM PDT

  •  What constitution? The doc that said that (1+ / 0-)
    Recommended by:
    eXtina

    slavery was ok and that it is still ok. The doc that said that separate was equal (not really); the doc that said that evil W. was denied due process (denying the voters rights); the constitution that says it is aokay to shoot people in the street because some evil monsters want to hunt people of color.

    Looks to me like it is an instrument of evil.

    The radical Republican party is the party of oppression, fear, loathing and above all more money and power for the people who robbed us.

    by a2nite on Tue Mar 27, 2012 at 08:11:03 AM PDT

    •  Good or evil, the Constitution is the document (0+ / 0-)

      that federal courts are supposed to follow and interpret.

      If they don't do that, they become an unelected body with unlimited powers.

      The influence of the [executive] has increased, is increasing, and ought to be diminished.

      by lysias on Tue Mar 27, 2012 at 11:17:17 AM PDT

      [ Parent ]

  •  All the legal arguments and going around in (0+ / 0-)

    circles are going to be selectively chose to come to the outcome they want. The decision is made and they are going to back their way into rationale using 'precedents' that uphold their desired outcome. The process is totally politicized. When 'liberal' judges are voting to force individuals to enter the private market and 'conservatives' are forcing against a mandate, you know we're through the looking glass.

    "I'm sculpting now. Landscapes mostly." ~ Yogi Bear

    by eXtina on Tue Mar 27, 2012 at 08:14:56 AM PDT

    •  After oral argument, the Supreme Court holds a (0+ / 0-)

      vote, and then the task of writing opinions is assigned to a member of the majority and a member of the minority.  Only then do opinions (which provide the rationale for the results) begin to be written.  The judges assigned to write opinions tell their clerks to write opinions that reach the desired result.  All of this is result-, not argument-, driven.

      Justices are free to change their votes when they see the draft opinions (which can then be redrafted to win more votes on the court).  But the point remains: the legal rationales for the results are an afterthought; the results drive the rationales.

      The influence of the [executive] has increased, is increasing, and ought to be diminished.

      by lysias on Tue Mar 27, 2012 at 11:22:14 AM PDT

      [ Parent ]

  •  Sites live blogging the argument (1+ / 0-)
    Recommended by:
    OLinda

    "We calmly accept our uncertain position." Joey Rathburn. But HBO can kiss my ass for cancelling Luck.

    by Paleo on Tue Mar 27, 2012 at 08:16:50 AM PDT

  •  I wouldn't put it past our conservative court (0+ / 0-)

    to dismantle post-1937 America.

    I think they would be much more comfortable in the 19th century.

    I'm a fucking retard.

    by Helpless on Tue Mar 27, 2012 at 08:40:28 AM PDT

  •  I hope this is allowed (0+ / 0-)

    then we can, once and for all, get rid of this idiotic, ancient notion of states rights and individual responsibility.  The world has changed and it's time we caught up.

  •  62 percent of us think ACA will survive? (1+ / 0-)
    Recommended by:
    Jacoby Jonze

    Hey -- want to buy a bridge?

    This is amazing.  I really hope I'm wrong and that my well-earned cynicism is blinding me, but how can anyone think the Evil Five will let this law live?  

    Legalities? Precedent? Logic?  

    Come on.

  •  Armando: care to do any tea leaf reading (0+ / 0-)

    from the arguments thus far?

    I'm no good at reading the court.  But the conservatives do seem hostile.

    Faby-o, downrec me again. You know I love it!

    by Cheez Whiz on Tue Mar 27, 2012 at 08:57:25 AM PDT

  •  If "they" rule the Mandate is unconstitutional (0+ / 0-)

    then surely the law that mandates hospitals provide care to people who can't pay for it must also be unconstitutional.  

  •  Not looking good - Cons seem to be a block... (0+ / 0-)

    against it and are just digging to find the right argument to find against it.  

    Where is the questioning from RBG, Breyer, Sotomayor and Kagan?

    This is going to be a political decision.  SCOTUS is pretty much a political tool these days.  Roberts is a political animal first and foremost.  Obama Admin shouldn't have pushed for the decision now, could have appealed and forced delays into 2013.  

  •  Why couldn't Dems see this issue coming? (0+ / 0-)

    And passed a bill that wouldn't run into this problem - too afraid to be seen as raising taxes?  

    Seems like a huge fuck up.  And probably ends re-election chances as "Obama thinks he's above constitution" will become the campaign rallying cry far and wide.  

  •  Pete Williams thinks it's in trouble (1+ / 0-)
    Recommended by:
    Luschnig

    Americans are fucking stupid.

  •  Commerce is a red herring. I agree with Balkin (0+ / 0-)

    in the end, this is a case about taxes. If you eliminate the word penalty after the word tax, this case is over. Finished. Go home. The mandate would function exactly the same, i.e. the government would be in the exact same position if we called it a tax and the individual citizen would be in the exact same position if we called it a tax. If the mandate falls, it falls on a formalist worship of the distinction created by that one word difference: tax penalty rather than tax. Will a 21st century court embrace formalism so much that it will strike down the central provision of an act of Congress, because it chose a particular euphemism for political reasons?

    The challengers assert that Congress has to call something a tax, because it can't tax unless it has the political support to tax. This is totally false. (It almost sounds as if this assertion were written by Grover Norquist himself.) What to name a particular tax is a political question for Congress. The judicial question of whether Congress exceeds its tax authority depends on an analysis of how it functions. If you changed payroll taxes to be called "mandatory retirement contributions," because it was more palatable politically, but the revenue-raising scheme operated no differently, the law would remain constitutional. Congress can choose to call a tax a mandatory contribution, a penalty, or a nipple-ring-butt-sex-with-Captain-Kangaroo charge if it wants to. All that matters is that Congress is demanding a portion of a person's income to the federal treasury.

    The conservative argument, on every level, is self-defeating: Today, five Republican Justices will embrace the argument that, although the Constitution gives Congress the power to tax income, it obviously does not grant Congress the power to compel people to pay a portion of their income to the federal government (because that would be tyranny).

  •  THE BROCCOLI SONG COMES TO MIND (0+ / 0-)

    "That would include, in my view, a requirement to eat broccoli."

    Or...STFU, until and when you are required to eat broccoli.  Similarity to the brilliant take down of prop. 8...when your rights have been violated, give us a call!

    I think this is the Achilles Heel of the Conservative Movement: they live in this world where they see as reality what they fear happening.  So, you might be able to make me buy insurance?  

    WHAT NEXT?

    Cue broccoli song
    BROCCOLIEEEEEEE!

    Remember this: the right doesn't get satire.  That is no joke.

  •  Scary Health Care Industrial Complex Narrative? (0+ / 0-)

    "...but rather to create commerce so that Congress may regulate it. "

    Irony of ironies, these folks are actually saying that Congress is doing this for the sake of making commerce to regulate?  As if the American People weren't going to be the beneficiaries of it instead of corporate lackies, for a change?    It's obvious how it reveals their worldview: regular people don't exist.  

    They are seriously peddling this line of garbage? The rise of the health care industrial complex?  These guys invented the game of gov't chicanery years ago with military contractors!

  •  States have a general police power, (0+ / 0-)

    which could be used to justify a state-level mandate for health insurance, just as it is used to justify state-level mandates for auto insurance.

    The federal government is a government of limited, enumerated powers, and does not have a police power.

    The influence of the [executive] has increased, is increasing, and ought to be diminished.

    by lysias on Tue Mar 27, 2012 at 11:15:29 AM PDT

    •  Bullshit (1+ / 0-)
      Recommended by:
      BlueGA

      I'm tire now and I simply can not read anymore bullshit.

      •  Did James Madison write bullshit (0+ / 0-)

        in Federalist No. 45:

        The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite. . . . The powers reserved to the several States will extend to all the objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people, and the internal order, improvement, and prosperity of the State.
        The Supreme Court recently in U.S. v. Morrison, 529 U.S. 598 (2000) reaffirmed what I stated in my posting that you reject:
        We accordingly reject the argument that Congress may regulate noneconomic, violent criminal conduct based solely on that conduct's aggregate effect on interstate commerce. The Constitution requires a distinction between what is *618 truly national and what is truly local. Lopez, 514 U.S., at 568, 115 S.Ct. 1624 (citing Jones & Laughlin Steel, 301 U.S., at 30, 57 S.Ct. 615). In recognizing this fact we preserve one of the few principles that has been consistent since the Clause was adopted. The regulation and punishment of intrastate violence that is not directed at the instrumentalities, channels, or goods involved in interstate commerce has always been the province of the States. See, e.g., Cohens v. Virginia, 6 Wheat. 264, 426, 428, 5 L.Ed. 257 (1821) (Marshall, C.J.) (stating that Congress “has no general right to punish murder committed within any of the States,” and that it is “clear ... that congress cannot punish felonies generally”). Indeed, we can think of no better example of the police power, which the Founders denied the National Government and reposed in the States, than the suppression of violent crime and vindication of its victims.FN8 See, e.g., Lopez, 514 U.S., at 566, 115 S.Ct. 1624 (“The Constitution ... withhold[s] from Congress a plenary police power”); id., at 584-585, 115 S.Ct. 1624 (THOMAS, J., concurring) (“[W]e always have rejected readings*619 of the Commerce Clause and the scope of federal power that would permit Congress to exercise a police power”), 596-597, and n. 6, 115 S.Ct. 1624 (noting that the first Congresses did not enact nationwide punishments for criminal conduct under the Commerce Clause).

        The influence of the [executive] has increased, is increasing, and ought to be diminished.

        by lysias on Tue Mar 27, 2012 at 11:53:34 AM PDT

        [ Parent ]

    •  Madison and Hamilton disagree (0+ / 0-)

      Madison, Federalist 44:

      [W]henever a general power to do a thing is given, every particular power necessary for doing it, is included.
      Hamilton, Federalist 31:
      A government ought to contain in itself every power requisite to the full accomplishment of the objects committed to its care, and to the complete execution of the trusts for which it is responsible; free from every other control, but a regard to the public good and to the sense of the people.  
      Both envisioned the Necessary and Proper clause to provide broad power to effectuate enumerated powers, which includes the Commerce Clause.

      There is no doubt that the health care market, and even the health insurance market, are interstate commerce.

      Thus, the federal government, at least in the mind of our founders, ought to have the same powers to regulate the interstate market.

      •  So you're saying the federal government's (0+ / 0-)

        powers are unlimited -- something the Supreme Court has repeatedly denied.

        Have you read Federalist 45?

        The influence of the [executive] has increased, is increasing, and ought to be diminished.

        by lysias on Tue Mar 27, 2012 at 01:01:11 PM PDT

        [ Parent ]

        •  Unlimited? Of course not. (0+ / 0-)

          For one, as I said, a major limit is that an enumerated power must be implicated.

          In this case, there must be a regulation of interstate commerce. Many challenges have succeeded based on the notion that what was being regulated was not interstate commerce.

          Here- no one has challenged that proposition, which is why the focus has not been on it. But the major limit comes here.

          Second- attenuation. If the challenged action is not a direct exercise of an enumerated power (which is very often the case), then the Necessary and Proper Clause is involved, as it is here.

          The limit here is how attenuated the action is to the fulfillment of an action that is prescribed by an enumerate power. The link cannot be too remote (see Comstock).

          The individual mandate is essential to the regulatory scheme in the substantive provisions of the ACA. Without it, they do not function properly. As those substantive provisions are in fact a regulation of interstate commerce, which no one questions, this limiting principle ensures that action is directly aimed at facilitating those regulation, which is clearly the case here.

          It is at this point, I believe, that Congresses power becomes what you call "unlimited", but which I do not suggest. Instead, it becomes as wide as the state's police power. This is what both Hamilton and Madison believed to be true.

          Of course, just as the police power is subject to due process limitation of individual liberties, so too would be the government's power here. But the challenges are not alleging a substantive due process challenge, which I believe is the only proper thing to do.

          Instead, they have crafted a novel argument, which unfortunately the conservatives on the court are itching to buy, which is that at this level there must be another limitation. But this is ridiculous. There is no basis in precedent nor in original intent for this notion.

          As I have stated, there are at least three sufficient "limiting principles" in place. The notion that we are obliged to add another one is ridiculous, and patently rejected by our founding fathers.

          It's a shame that so many on dkos are actually buying into this ridiculousness. Its silly season, as President Obama would say.

  •  Health CARE is necessary (0+ / 0-)

    Health insurance is not.

    Thus requiring health insurance does not satisfy the necessary and proper clause since it is not necessary to require something that is not necessary

    None of the candidates are good enough to be fanatical about. They're all politicians

    by TeresaInSammamishWA on Tue Mar 27, 2012 at 04:52:22 PM PDT

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