Skip to main content

Most Democrats are familiar with the story of FDR's battles with the Supreme Court regarding the constitutionality of his New Deal legislation. In 1937, the Court reversed course and recognized the Commerce power as empowering the Congress to enact the New Deal legislation.

In discussing the constitutionality of the individual mandate in the Affordable Care Act, much has been made of the supposed unprecedented nature of the regulation of "inactivity." I have found the argument to be so specious (particularly when one considers the power conferred by the Necessary and Proper Clause), that I have devoted little time to rebutting this argument. But in passing on another subject, I reread NLRB v. Jones & Laughlin Steel, 301 US Reports 1 (1937), the case that began the the "switch in time saves 9" process. A review of the case is instructive.

Jones & Laughlin Steel decided the constitutionality of the National Labor Relations Act of 1935. Under the NLRA, Jones & Laughlin Steel were charged with unfair labor practices. Jones & Laughlin Steel challenged the constitutionality of the NLRA, arguing it exceeded Congress' Commerce power. The Court rejected the challenge:

We think it clear that the National Labor Relations Act may be construed so as to operate within the sphere of constitutional authority. The jurisdiction conferred upon the Board, and invoked in this instance, is found in section 10(a), 29 U.S.C.A. 160(a), which provides:

'Sec. 10(a). The Board is empowered, as hereinafter provided, to prevent any person from engaging in any unfair labor practice (listed in section 8 (section 158)) affecting commerce.'[...]:

[...]'affecting commerce' section 2(7), 29 U.S.C.A. 152(7):

'The term 'affecting commerce' means in commerce, or burdening or obstructing commerce or the free flow of commerce, or having led or tending to lead to a labor dispute burdening or obstructing commerce or the free flow of commerce.'

This definition is one of exclusion as well as inclusion. [...] It purports to reach only what may be deemed to burden or obstruct that commerce and, thus qualified, it must be construed as contemplating the exercise of control within constitutional bounds. It is a familiar principle that acts which directly burden or obstruct interstate or foreign commerce, or its free flow, are within the reach of the congressional power. [...] It is the effect upon commerce, not the source of the injury, which is the criterion. [...]

[...] Burdens and obstructions may be due to injurious action springing from other sources. The fundamental principle is that the power to regulate commerce is the power to enact 'all appropriate legislation' for its 'protection or advancement' (The Daniel Ball, 10 Wall. 557, 564); to adopt measures 'to promote its growth and insure its safety' (County of Mobile v. Kimball, 102 U.S. 691, 696 , 697 S.); 'to foster, protect, control, and restrain.' (Second Employers' Liability Cases, supra, 223 U.S. 1 , at page 47, 32 S.Ct. 169, 174, 38 L.R.A.(N.S.) 44). See Texas & N.O.R. Co. v. Railway & S.S. Clerks, supra. That power is plenary and may be exerted to protect interstate commerce 'no matter what the source of the dangers which threaten it.' Second Employers' Liability Cases, 223 U.S. 1 , at page 51, 32 S.Ct. 169, 176, 38 L.R.A.( N.S.) 44.

(Emphasis supplied.) Some would argue that the Court is merely declaring that regulation of activity is permitted by the Constitution according to these passage. I would disagree - "no matter what the source" seems fairly conclusive to me. But we need not speculate. For the Court continued:

Experience has abundantly demonstrated that the recognition of the right of employees to self-organization and to have representatives of their own choosing for the purpose of collective bargaining is often an essential condition of industrial peace. Refusal to confer and negotiate has been one of the most prolific causes of strife. [... E]xperience has shown that before the amendment, of 1934, of the Railway Labor Act, 'when there was no dispute as to the organizations authorized to represent the employees, and when there was willingness of the employer to meet such representative for a discussion of their grievances, amicable adjustment of differences had generally followed and strikes had been avoided.
 

(Emphasis supplied.) "Refusal to negotiate and confer." To wit, inactivity. The NLRA imposed upon covered employers the duty to "negotiate and confer" with the chosen collective bargaining representatives of employees:

The provision of section 9(a)10 that representatives, for the purpose of collective bargaining, of the majority of the employees in an appropriate unit shall be the exclusive representatives of all the employees in that unit, imposes upon the respondent only the duty of conferring and negotiating with the authorized representatives of its employees for the purpose of settling a labor dispute. This provision has its analogue in section 2, Ninth, of the Railway Labor Act, as amended (45 U.S.C.A. 152, subd. 9), which was under consideration in Virginian Railway Co. v. System Federation No. 40, supra. The decree which we affirmed in that case required the railway company to treat with the representative chosen by the employees and also to refrain from entering into collective labor agreements with any one other than their true representative as ascertained in accordance with the provisions of the act. We said that the obligation to treat with the true representative was exclusive and hence imposed the negative duty to treat with no other.
(Emphasis supplied.) Some would argue that the distinction with the individual mandate is that the individual mandate requires "agreement" for the purchase of health insurance. Such an argument would concede that the Commerce power can in fact reach "inactivity," but that it can not require forced "agreement." This is a fallacious argument as to the Commerce power. Indeed, Jones & Laughlin Steel did not raise the argument as a challenge to the Commerce power, but as a violation of its substantive due process right to "liberty of contract." The Jones & Laughlin Steel Court stated:
Fifth. The Means Which the Act Employs.-Questions under the Due Process Clause and Other Constitutional Restrictions.-Respondent asserts its right to conduct its business in an orderly manner without being subjected to arbitrary restraints. [. . .] The act does not compel agreements between employers and employees. It does not compel any agreement whatever.
(Emphasis supplied.) In the ACA case before the current Court, there is no substantive due process "liberty of contract" challenge. Nor does the mandate actually require "agreement" to purchase health insurance. ACA imposes a $500 "shared responsibility" penalty on non-exempt persons who do not secure heath insurance.

As Jones & Laughlin Steel demonstrates, the "activity/inactivity" distinction is specious and unprecedented. The hidden argument, one that has long been rejected by the Court, is in fact the Lochner Era Substantive Due Process "liberty of contract" argument.

The Commerce Clause, as consistently interpreted by the Supreme Court, empowers the Congress to enact the individual mandate and penalty. To rule otherwise would be a radical, extreme and extraordinary decision by the current Supreme Court.

Originally posted to Armando on Wed Apr 04, 2012 at 08:10 AM PDT.

Also republished by Discussing The Law: TalkLeft's View On Law and Politics.

EMAIL TO A FRIEND X
Your Email has been sent.
You must add at least one tag to this diary before publishing it.

Add keywords that describe this diary. Separate multiple keywords with commas.
Tagging tips - Search For Tags - Browse For Tags

?

More Tagging tips:

A tag is a way to search for this diary. If someone is searching for "Barack Obama," is this a diary they'd be trying to find?

Use a person's full name, without any title. Senator Obama may become President Obama, and Michelle Obama might run for office.

If your diary covers an election or elected official, use election tags, which are generally the state abbreviation followed by the office. CA-01 is the first district House seat. CA-Sen covers both senate races. NY-GOV covers the New York governor's race.

Tags do not compound: that is, "education reform" is a completely different tag from "education". A tag like "reform" alone is probably not meaningful.

Consider if one or more of these tags fits your diary: Civil Rights, Community, Congress, Culture, Economy, Education, Elections, Energy, Environment, Health Care, International, Labor, Law, Media, Meta, National Security, Science, Transportation, or White House. If your diary is specific to a state, consider adding the state (California, Texas, etc). Keep in mind, though, that there are many wonderful and important diaries that don't fit in any of these tags. Don't worry if yours doesn't.

You can add a private note to this diary when hotlisting it:
Are you sure you want to remove this diary from your hotlist?
Are you sure you want to remove your recommendation? You can only recommend a diary once, so you will not be able to re-recommend it afterwards.
Rescue this diary, and add a note:
Are you sure you want to remove this diary from Rescue?
Choose where to republish this diary. The diary will be added to the queue for that group. Publish it from the queue to make it appear.

You must be a member of a group to use this feature.

Add a quick update to your diary without changing the diary itself:
Are you sure you want to remove this diary?
(The diary will be removed from the site and returned to your drafts for further editing.)
(The diary will be removed.)
Are you sure you want to save these changes to the published diary?

Comment Preferences

  •  The only question seems to be whether (25+ / 0-)

    they seek to turn the dial back to Schechter, or to Lochner.

    Those who think this is about the mandate/penalty are going to be in for an awakening every bit as rude as experienced by those who thought this would be decided on the merits.

    If there is any positive, it's that what remains of the thin veneer of legitimacy will finally be stripped off the Roberts court.

    "[R]ather high-minded, if not a bit self-referential"--The Washington Post.

    by Geekesque on Wed Apr 04, 2012 at 08:17:37 AM PDT

    •  I'm going to write something (36+ / 0-)

      on that point for Sunday.

      I was reviewing some of the writings over the past decade on the Constitution in Exile and find myself drawn to Jack Balkin's thesis - it will be not a return to "liberty," but to "liberty of commerce."

      Corporate liberty, not individual liberty.

      •  individual liberty (14+ / 0-)

        always was secondary. the constitution needed to be amended even to begin to address individual liberties.

        The cold passion for truth hunts in no pack. -Robinson Jeffers

        by Laurence Lewis on Wed Apr 04, 2012 at 08:26:29 AM PDT

        [ Parent ]

      •  The WSJ editorial page standard. (18+ / 0-)

        Whatever the WSJ editorial page wants, that's what the constitution commands.

        Growing pot on your patio to smoke yourself is clearly interstate commerce, but a central issue facing any effort to reform a sector that occupies 18% of our economy, well that's just going too far.

        Funny to see the party of Gingrich and Cornyn clutch their pearls over an independent judiciary.

        "[R]ather high-minded, if not a bit self-referential"--The Washington Post.

        by Geekesque on Wed Apr 04, 2012 at 08:29:35 AM PDT

        [ Parent ]

      •  I appreciate your setting out your thoughts (8+ / 0-)

        As often happened in the good/bad old days, my response to you grew to the point where it had to become its own diary.  I post only the first few paragraphs here.  You really need to do more thinking about the slippery slope argument.  We're in an echo chamber here and we're fooling ourselves.

        From my new diary:

        Armando: I think that you're instructively wrong, but at least it helps to clarify the nub of our disagreement.  I invite you, as an exercise, to describe how you would argue the other side of the case, if hired to do so, and see if it still sounds implausible to you.

        My concern is that we (both Kosters and liberal legal thinkers) are fooling ourselves on this point.  The only way out of the problem -- both with the Justices and with the American people -- is to articulate a clear limiting principle.  Verrilli didn't; neither do you, because preventative health also impacts the health care market.  But you gave it a good try, which is valuable.

        "Regulate inactivity" is rough shorthand for "force people, as a consequences of their mere existence within the U.S. rather than due to their election to enter a market, to thus be subject to commercial regulation."  Any lawyer worth his or her salt, as you certainly are, could muster a robust parade of horribles out of that rule of law.  It should be taken seriously.

        Jones & Laughlin is irrelevant because the entity under regulation was not merely "inactively existing," but was active in the marketplace.  Pretty much all acts of a corporation (and I'm hedging only out of caution) are of necessity subject to commercial regulation, because attaining corporate status, hiring people, buying and selling merchandise, and intrinsically commercial activities.

        You're talking about an entity engaged in commercial activity, including hiring labor, refusing to act in a certain way with respect to that labor.  I don't think that I need to belabor the point that that is different from the sort of inactivity that derives from an average American simply being born -- and, under your rule, being subject to commercial regulation in the same sense as they are subject to taxation.

        Some commenters state that because virtually all Americans will eventually use medical care at some point, they thereby "enter the market" and can be regulated as market participants.  I'll note first that this idea is new.  Whether or not can be argued to flow inexorably from existing law, it is not a simple and straightforward application of an existing power.  It requires us, at a minimum, to overcome the intuition (both on the part of justices and the public) that people are here being dragooned into a market in a way that has not previously been the case -- that it changes the role between citizen and government.  I wish that people would stop claiming that this leap of logic is effortless.

        Democrats must
        Earn the trust
        Of the 99% --
        That's our intent!

        "I love this goddamn country, and we're going to take it back." -- Saul Alinsky OCcupy!

        by Seneca Doane on Wed Apr 04, 2012 at 12:30:02 PM PDT

        [ Parent ]

        •  Thanks for the response (5+ / 0-)

          I'll try and comment tonite.

        •  I was moved by Akhil Amar's formulation, (0+ / 0-)

          the limited power is that Congress can't do anything that isn't with article I, section 8, but one of those things happens to be regulating interstate commerce.  That power is expansive but limited to the extent that it can only regulate problems that are commercial in nature and it can't do so in a way that would violate a separate constitutional provision.  The regulation isn't of a decision not to enter the health care market -- you're in it -- but of the entire market.  All that happens with section 5000A is that taxpayers are incentivized to internalize costs created by the inefficiencies of self-financing.  This is a new approach but it's not a new exercise of the commerce power, as health insurance has been held to be interstate commerce since 1944.

          There are reasons why such a mandate makes economic sense, which also means that the political branches can be counted on to select against hypothetical mandates that wouldn't.  At least they should get the first shot.  whether there's something intrinsically different or unfair about the health insurance mandate, which I don't concede given that it's only enforced against certain taxpayers meaning there's already some commercial participation prior to collection and without that, no incentive or consequence, but whether there's something unfair raises a separate set of issues from the question of whether congress has the enabling power to pass the law.  

          It's your burden to show why this supposed novelty is of constitutional import, and I don't see a due process right to refuse to participate in a market in which one is already a participant.  One isn't a future health care consumer, one is a present health care consumer, since the product is access to emergency care, not receipt of it.  If congress lost its mind and passed the broccoli mandate, I'd be comfortable striking it on rational basis grounds, on the grounds that one doesn't regulate the broccoli market by regulating people not in it.  But the economics of health insurance markets answer the question that there is a rational basis to solve the problem of cost shifting thru a mandate, and at minimum, it's close enough to defer to the democratic process.  Let a Congress deal with the economics of repealing the mandate while keeping that which is not just clearly Constitutional but unmistakably desirable policy.

          The study of law was certainly a strange discipline. -- Yukio Mishima

          by Loge on Wed Apr 04, 2012 at 02:00:34 PM PDT

          [ Parent ]

          •  wrong; conflation of issues. (0+ / 0-)

            People enter and leave the market for health care.

            Health insurance is NOT health care.

            Further, if a possible future activity constitutes the basis for imposing a legal sanction on an individual, pre-emptively, then by virtue of the fact that 30% of black males in the US will at some point come into contact with the criminal justice system as defendants, we should mandate that all black males wear electronic probation bracelets on their ankles.

            Are you so sure you want to go into the "pre-crime" business?

            "Minus two votes for the Democrat" equals "plus one vote for the Republican." Arithmetic doesn't care about your feelings.

            by G2geek on Wed Apr 04, 2012 at 04:36:55 PM PDT

            [ Parent ]

            •  Talk about conflation of issues (0+ / 0-)

              In your hypo, there's a countervailing constitutional objection, a few actually, and not all crime risks are commercial in nature, per Lopez.  Not having health insurance at the same time one has the right to emergency room coverage imposes costs in the present tense.  Now you can explain why you singled out black males, when the insurance mandate is broader.  I'd let Seneca reply as he has the knowledge base not to make a fool of himself.  

              The study of law was certainly a strange discipline. -- Yukio Mishima

              by Loge on Wed Apr 04, 2012 at 04:45:29 PM PDT

              [ Parent ]

              •  "broad ER"...? (0+ / 0-)

                Gee, that's an understatement.

                Either you're supporting a capitation tax, or you're supporting a penalty for non-participation in commerce, imposed upon 100% of the population by virtue of their existence.

                As for who is and isn't making fools of themselves, the answer to that one will become apparent in the months ahead.

                What I really don't understand is how all these "Democrats" are standing up for what was originally a hard-right Republican proposal.  If that makes me foolish, please accept my apology for not having a rhinoceros horn on my face when I woke up this morning, and questioning why those rhinoceros horns so suddenly appeared on the faces of people who didn't have them yesterday.

                "Minus two votes for the Democrat" equals "plus one vote for the Republican." Arithmetic doesn't care about your feelings.

                by G2geek on Wed Apr 04, 2012 at 07:51:51 PM PDT

                [ Parent ]

                •  I don't care about (1+ / 0-)
                  Recommended by:
                  andgarden

                  policy for this discussion.  That the Heritages supported this policy supports my thesis that the argument that it's unconstitutional are based on ignorance of precedent or opportunism.  Put it this way, why are you to the right of the Heritage foundation?

                  What makes a fool of you is that you don't understand that there us a different analysis to whether the objection is that the legislation isn't authorized and whether the legislation infringes on a particular right.

                  What you conspicuously don't get is one can think the mandate is a bad idea without asking the Scotus to do your dirty work.

                  The study of law was certainly a strange discipline. -- Yukio Mishima

                  by Loge on Wed Apr 04, 2012 at 08:17:57 PM PDT

                  [ Parent ]

        •  right on target. (0+ / 0-)

          The reasoning and also the phrasing:  "parade of horribles" and "dragooned into a market."  

          Exactly.

          "Minus two votes for the Democrat" equals "plus one vote for the Republican." Arithmetic doesn't care about your feelings.

          by G2geek on Wed Apr 04, 2012 at 04:32:39 PM PDT

          [ Parent ]

        •  But if the issue is a "burden" on commerce, ... (2+ / 0-)
          Recommended by:
          indres, Seneca Doane

          ... being uninsured yet taking advantage of health care services that are paid for by a combination of insureds and taxpayers - and imposing costs that must be recovered from those other sources - does constitute a burden on commerce.

          I agree that Verrilli was inarticulate on what principle limits Congress's commerce powers. It is, unlike many other formulations of challenges-in-the-guise-of-questions to Verrili, a fair and very obvious question.

          Obama and strong Democratic majorities in 2012!

          by TRPChicago on Wed Apr 04, 2012 at 07:12:00 PM PDT

          [ Parent ]

      •  wrong, fail, and why stand up for bullies? (1+ / 0-)
        Recommended by:
        splintersawry

        The case you cite involves a corporation's relations with its employees.

        A corporation that is already engaged in commerce.

        The ruling specifically states:

        "We think it clear that the National Labor Relations Act may be construed so as to operate within the sphere of constitutional authority. The jurisdiction conferred upon the Board, and invoked in this instance, is found in section 10(a), 29 U.S.C.A. 160(a), which provides:
        'Sec. 10(a). The Board is empowered, as hereinafter provided, to prevent any person from engaging in any unfair labor practice (listed in section 8 (section 158)) affecting commerce.'[...]:

        The Labor Relations Act applies to existing commerce, it does not create wholly new commerce where none existed.

        An employer, by definition, is a commercial entity.  An employment relationship is a form of commerce.

        The case you cite says NOTHING about a power to compel a private citizen to become an employer, any more than the requirement for drivers to carry automobile insurance compels any private citizen to own or operate an automobile.

        "Plenary power to protect commerce" does not include plenary power to create commerce, any more than police power to arrest criminals includes the power to create crimes where none existed: that's called entrapment.

        Your entire analysis that follows from that point fails, crashes and burns, melts down, and becomes radioactive fallout.  

        ----

        So, why have you been going through contortions such as this diary and at least one recent one, to stand up for some of the worst and most egregious bullies on the entire corporate landscape?    

        "Minus two votes for the Democrat" equals "plus one vote for the Republican." Arithmetic doesn't care about your feelings.

        by G2geek on Wed Apr 04, 2012 at 04:25:04 PM PDT

        [ Parent ]

    •  A fricken men (26+ / 0-)

      People don't get how big this case is.

      I was never a believer in Critical Legal Theory.  But the line of cases from Buch v Gore to Citizen's United to this one is starting to disbuse me of this skepticism a bit.  I have known too many judges to every really buy into the theory completely, but I am certainly less skeptical.

      What Obama should say is that the Judges voting to overturn this case are simply acting as politicians, and should be treated with no more, and no less respect.

      Good diary and good comment.

      I keep having the picture of my mind of those creepy Federalist Society types in law school.

      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 Wed Apr 04, 2012 at 08:33:46 AM PDT

      [ Parent ]

    •  They're going after Medicare and Social Security (11+ / 0-)

      Once they declare those unconstitutional, then they will be able to if not outright get rid of it, make "privatized" programs which will suddenly be constitutional.

      "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 Wed Apr 04, 2012 at 08:54:03 AM PDT

      [ Parent ]

    •  I think it has to be Lochner (17+ / 0-)

      the only way to conceivably strike the mandate, given the substantial effect of forgoing insurance on the interstate market, is to posit an affirmative, countervailing right not to engage in commerce, i.e., due process liberty of contract.

      The study of law was certainly a strange discipline. -- Yukio Mishima

      by Loge on Wed Apr 04, 2012 at 09:06:06 AM PDT

      [ Parent ]

    •  for once we agree about something:-) (0+ / 0-)

      Stripping the thin veneer of legitimacy from the Roberts court.

      It would be a wonderful thing if:

      a)  The court threw out the egregious unconstitutional mandate, and

      b)  Voters immediately demanded the Public Option, and this being an election year, got it, and

      c)  The Roberts Court was "stripped of legitimacy" in the process.

      Win-win-win solution on all fronts.  Stranger things have happened.  

      "Minus two votes for the Democrat" equals "plus one vote for the Republican." Arithmetic doesn't care about your feelings.

      by G2geek on Wed Apr 04, 2012 at 04:28:51 PM PDT

      [ Parent ]

  •  Wouldn't the distinction be that "employers" (9+ / 0-)

    have already engaged in commerce, and as such can be compelled to do all sorts of things. By way of analogy, there is no question whatsoever about the so-called "employer mandates" in ACA; as employers it's well accepted that they can be required to do all sorts of things. If they don't want to do them, then they are free to close down their business at any time.

    The individuals subject to the individual mandate are subject no matter what they may or may not otherwise do. It'd be like forcing people to get car insurance independent of whether or not they have a car, on the theory that everyone at some point in their life will need to get a car.

    •  Uninsured people unquestionably (16+ / 0-)

      have an effect on the health care/health insurance markets.  Moreover, a huge amount of money does get spent on treating the uninsured.  

      "[R]ather high-minded, if not a bit self-referential"--The Washington Post.

      by Geekesque on Wed Apr 04, 2012 at 08:21:42 AM PDT

      [ Parent ]

      •  More than that (12+ / 0-)

        let the person who has not gone to see a doctor or gone to a clinic file an "as applied" challenge.

        •  what about a person (2+ / 0-)
          Recommended by:
          cotterperson, Eric Nelson

          who has in the past, but plans to never again see a doctor or visit a clinic?

          Or i would think the typical billionaire could claim that he will never be a burden on the system and does not require health insurance.

          •  I thought the argument was (5+ / 0-)
            Recommended by:
            Geekesque, Loge, hazzcon, oceanview, elwior

            the never entered the market?

            Is this the fallback "I promise to never reenter the market" argument?

            Great. Make it in an "as applied" challenge.

            •  Are they being mandated (0+ / 0-)

              because of costs they incurred in the past, or for costs they will incur in the future?

              It is to pay for future costs isn't it?

              •  They are being mandated (11+ / 0-)

                because it is Congress' considered judgment that it is necessary for effective legislation in the national health insurance and care market.

                You have the analysis of Commerce power backwards. It si what the Congress is empowered to do, not whether it is "fair to the individual.

                As I say in other comments, you have an economi liberty argument to make? Then they should make it.

                I note that to this day NO ONE has made a liberty of contract argument for prohibiting this Congressional action.

                I note that to this day, no one has made a federalism argument against the individual mandate.

                The only argument is the scope of the Commerce power and the Necessary and Proper power.

                Clearly, without dispute, the power exists, absent an express prohibition found in the Constitution. No one has argued there is such a prohibition.

                •  a bad faith commerce clause argument (3+ / 0-)
                  Recommended by:
                  Armando, Dave925, elwior

                  accomplishes the same political objective, does it not?  (This is bad faith on the republican side; liberal critics of the mandate either don't appreciate the stakes or know what they're talking about.)

                  The study of law was certainly a strange discipline. -- Yukio Mishima

                  by Loge on Wed Apr 04, 2012 at 09:15:27 AM PDT

                  [ Parent ]

                  •  Sure (3+ / 0-)
                    Recommended by:
                    Loge, Dave925, elwior

                    I've said all that many times.

                    But I am a Legal Realist.

                  •  Hold on. (0+ / 0-)

                    Who, exactly, isn't considering the ramifications of this ruling?

                    I've been saying since this mandate was being discussed that the next step for our lobbyist-ridden corporatocracy will be a mandate for individuals to open and fund 401(k)s with private banks under the basis that we will all eventually need to retire.  

                    Think about this for one second.  Do you seriously want THIS government, which has shown no limit to the extent which they will favor corporations over individuals, and into whose very fabric has been sewn - you want THIS government to have the power to tell individuals that they must purchase products and therefore contribute to the profits of those private corporations?  This mandate + Citizens United is a very, very dangerous path to go down.

                    Look, I NEVER agree with conservatives, but Kennedy's question is a valid one:  if this, then what CAN'T the government do?  What is the limiting principle?

                    •  Policy ramifications are not the same (0+ / 0-)

                      as the ramifications as cutting off regulatory power at the knees.  What the government can't do is regulate a non commercial problem or regulate a commercial problem in a way e violates a protected liberty interest.  Your hypo is distinguishable as the analogy would be that we are to the health care market as a retired person is to retirement.  Even if not, I think Congress does have the power to impose tax consequences to not having retirement savings.  Congress does that already slightly differently, for policy not constitutional reasons.  

                      If you want to see corporate power run amok, take away the power to regulate it or interpose a due process right to freedom of contract.   Either way, repeating the word corporation over and over is not the same thing as think rough the consequences of the ruling.  Maybe the mandate isn't necessary to make the minimum care provisions coat effective, but that's an empirical question and best left to the political branches.  You haven't given any indication beyond your own say so that the mandate is bad policy.  It can well be, but that doesn't make it unconstitutional, and the votes of two houses of Congress and a presidential signature should count for something.  But, on the other hand, you put "this" in all caps.  Clearly, we should throw out a few decades of jurisprudence because Barack Obama disappoints you.

                      In any event, you are accepting the republican framing of the issue to be decided by the court, and it's dead wrong.  The Court decided in 1944 that Comgress can regulate the market for health insurance under the commerce clause.  Armando points out that Congress regulates inactivity in the past.  Thwre is no due process right to abstain from the economy.  There is less of one when one already receives a tacit benefit in enjoying the opportunity to have access to wmergency care.  So, yes, I thought this out.  I just, unlike you, start from the right place.

                      The study of law was certainly a strange discipline. -- Yukio Mishima

                      by Loge on Wed Apr 04, 2012 at 01:23:42 PM PDT

                      [ Parent ]

                      •  What's your limiting principle again? (0+ / 0-)
                        What the government can't do is regulate a non commercial problem or regulate a commercial problem in a way e violates a protected liberty interest.
                        People not having enough funds when they retire is absolutely, undeniably a problem that affects commerce.  And according to your arguments, that could be Constitutionally regulated by forcing people to open and fund 401(k)s.  Again, my only point is that it's wrong for you to proclaim that others haven't fully considered the ramifications when perhaps you haven't considered them either.
                        Your hypo is distinguishable as the analogy would be that we are to the health care market as a retired person is to retirement.
                        I'm sorry, I can't address this argument because I simply can't understand what you're saying.  We are all in the "retirement market" too.  Right now.  You can't wait until you retire to fund your retirement.  If I'm not mistaken, that's the same argument which mandate backers make regarding the fact that we're all in the "health care market" even when healthy.  So where's the distinction?  Where's the limiting principle that will prevent the next Republican government from passing this legislation?
                        If you want to see corporate power run amok, take away the power to regulate it or interpose a due process right to freedom of contract.
                        Oh please talk about "the sky is falling down" hyperbole.  This case isn't going to eliminate the Commerce Clause, for chrissakes.  Saying that the government can't force people to buy things isn't even remotely close to saying that you've completely taken away the government's power to regulate commerce.  Come on.  This is as disingenous as it gets.
                        But, on the other hand, you put "this" in all caps.  Clearly, we should throw out a few decades of jurisprudence because Barack Obama disappoints you.
                        Amazing.  Talk about "showing your ass".  I simply point out the undeniable, noncontroversial fact - echoed multiple times per day on this and countless other political blogs - that our system of government is unduly influenced by and more often than not directly works for the interests of moneyed and corporate interests - and all you see a slam on Obama.  This says quite a bit  about the background motives which paint your analysis of this issue.
                        In any event, you are accepting the republican framing of the issue to be decided by the court, and it's dead wrong.
                        Oh?  I'm not allowed to have a different opinion on the scope of the commerce clause without being a Republican or "buying into" Republican framing?  Careful...you're starting to sound like a...what's the word again...PURIST.
                        The Court decided in 1944 that Comgress can regulate the market for health insurance under the commerce clause.  Armando points out that Congress regulates inactivity in the past.
                        Nobody disputes that Congress can regulate the health insurance market.  However, I disagree with the idea that among the powers of regulating a market is the power to throw people into it.  I also disagree that Armando's example is even relevant to the issue at hand.  In his example, Congress WAS undoubtedly regulating a commercial activity NOT an inactivity.  That is, Congress was regulating the commercial activity of employing people to work.
                        •  The first two sentences of your last paragraph (1+ / 0-)
                          Recommended by:
                          andgarden

                          comtradict each other if you but knew it. They're either regulating the market or not.  And in case you missed it, incentivizing people to buy 401ks is constitutional as is having tax incentives to induce financing health care expenditures in advance.  Congress makes workers pay into social security because without it, it couldn't keep obligations to present retirees.  That's a taxing power argument, but it's arguably burdensome on those who will pledge never to retire.  I don't see how that would be the case with mandating segregated accounts, but it can and does encourage that in other ways.  the fact that one is govt and the other is private sector matters for policy concerns, but not to whether the power to regulate exists.  Your argument is a jumble between does congress have the power to do something and should it.  This is why you're not to be encouraged to adopt a framing that is inconsistent with precedent.  You are free to do so, and even with the mandate, free to forgo insurance.  I mocked your corparatism arguments because this bill restricts, not empowers, health insurance companies, if you look at the whole bill.  And if you did, the commerce clause justifications are even stronger.  It'd be as if Fidelity were required to pay for the retirements of everyone but not everyone had to contribute to the 401k.  A world where Fidelity administered social security versus the SSA, one could be still be made to buy in.

                          The study of law was certainly a strange discipline. -- Yukio Mishima

                          by Loge on Wed Apr 04, 2012 at 02:53:46 PM PDT

                          [ Parent ]

                    •  Kennedy is a total Hypocrite then . . . (0+ / 0-)

                      They asked the same thing in Lopez in 1995, and the Solicitor General could not name anything. Then the Rehnquist Court (with Kennedy's vote) went about limiting it.

                      In Lopez they limited the Commerce Power so that you cannot pile "inference upon inference" until you have an affect on commerce on "non-economic" activity.

                      So you can name plenty. And I can name a few that Kennedy himself voted to limit.

                      The government cannot use the Commerce Clause to regulate non-economic activity like having a hand-gun near a school. Lopez.

                      They cannot regulate gender related crimes under the Commerce Power. U.S. v. Morrison.

                      I would be very careful of that. If you are suggesting as O'Connor did in Gonzalez v. Raich that  that just because Congress thinks there’s a substantial impact because there’s a plausible impact that’s not enough; there should be a test. You go back to Lochner (what O'Connor ironically said was not happening in Lopez when they started to Limit while saying we aren't). But I don't see how you wouldn't in that line of thinking. We don't like Lotto tickets, ok we'll let you regulate, child labor we like- there is a right to contract! You merely replace the SCOTUS with the legislative findings, etc.

                      If you want to know why that is a problem read the dissents in Lopez.

                      •  He may have been disingenuous,but not hypocritical (0+ / 0-)

                        From Kennedy's standpoint, he was being consistent.  If the SG can't give a limiting principle, then that IS reason to limit the Commerce Clause.  They're required to give effect to the words in the Constitution.  If the Constitution says "you have the following limited powers: X, Y, Z", but then you claim that X is an all-encompassing power without limits, then you've rendered the concept of enumerated powers superfluous.

                        To me, Kennedy seemed to be saying, "If I wanted to agree with you that the Commerce Clause applies here but still find that the government is one of enumerated powers, then give me a similar situation where the Commerce Clause doesn't fit so as to further delineate it."  

                        You're right that the SG could have, at the very least, pointed to Morrison or Lopez (and the fact that he didn't baffles me)...but that seems to me why Kennedy asked the question.

                        •  Fair Enough (0+ / 0-)

                          I was mostly speaking based on tradition for the poster to show that Kennedy knows that there are limitations.

                          I don't disagree with your further assessment. And on second thought it is true that Judges know the law and don't usually help you out.

                          The fact is the Court has (and Congress) secretly known that under the Civil Rights Cases and Wickard there is none at that point you could reach local activities. To create a test like O'Connor talks about takes you back to Lochner.

                          The reason is in Breyer's dissent in Lopez that basically says we let Congress get away with this because if we don't it threatens our relevance (Switch in time).

                          The Court has felt they'd rather secretly let anything go for 80 years rather than return to an era where they scrutinize Congress' economic legislation.  

                •  I'm not sure you are correct about that (2+ / 0-)

                  The Institute for Justice filed an amicus bried arguing the freedom to contract issue:

                  If government-mandated health insurance is upheld by the U.S. Supreme Court after the Patient Protection and Affordable Care Act (PPACA) case is argued in March 2012, the Institute for Justice warns in its amicus brief that there will be dire and predictable threats to individual liberty and voluntary relations that have been the foundation of American contract law for centuries.

                  Constitutional law professor Elizabeth Price Foley, who is the executive director of the Institute's Florida Chapter and who co-authored IJ's brief, said, "The individual mandate violates a cardinal rule of contract law—to be enforceable, all agreements must be voluntary. The Framers understood this, and would never have given the federal government the power to force individuals into lifelong contracts of insurance. The Court should not allow the government to exercise this unprecedented and dangerous power."

                  As IJ's brief shows, the principle of mutual assent, under which both parties must consent for a contract to be valid, is a fundamental principle of contract law that was well understood during the Founding era and is still a cornerstone of contract law today. Indeed, contracts entered under duress have long been held to be invalid. Yet the mandate forces individuals to enter into contracts of insurance that would never be valid under this longstanding principle.

                  http://www.ij.org/...

                  •  Not referencing amici (0+ / 0-)
                    •  What? (0+ / 0-)
                      I note that to this day NO ONE has made a liberty of contract argument for prohibiting this Congressional action.
                      That was a pretty definitive "NO ONE" there. I wouldn't think that a filer of an amicus brief in the SCOTUS in this very same case qualifies as "NO ONE", but whatever . . .
                      •  That IS less than shocking (0+ / 0-)

                        Considering SCOTUS has special rules for amicus curiae briefs, covered generally by Supreme Court Rule 37. The Rule states, in part, such a brief should cover "relevant matter" not dealt with by the parties which "may be of considerable help".

                        So you could not submit an Amicus to the SCOTUS re-hashing the actual parties' arguments.

                        I am fairly confident in saying I would guess that there is at least two dozen Amicus briefs filed, with more to follow.

                        Do you think con law scholars, or even the Supreme Court are going to read them all and decide in a way not argued by the parties (aside from the Special Counsel)? If so I have got bridge to sell you.

                        •  I think that's right (0+ / 0-)

                          I'm not arguing about whether this particular amicus brief will have an effect or not. I was just responding to Armando's claim that "NO ONE" has raised this issue. Well, it was raised, and it was raised in a brief that was successfully submitted to the SCOTUS in this case.

                          I do think that SCOTUS law clerks will certainly read each and every one of the amicus briefs. Whether any of the arguments contained therein will make it into the decision is anyone's guess, but I wouldn't put the chances at zero.

          •  "Plans to never again see a doctor" (6+ / 0-)
            Recommended by:
            Armando, Loge, Dave925, gatorcog, Kinak, elwior

            A non-binding statement of intent has less substance than cotton candy.

            "[R]ather high-minded, if not a bit self-referential"--The Washington Post.

            by Geekesque on Wed Apr 04, 2012 at 08:41:22 AM PDT

            [ Parent ]

          •  then the billionaire can pay $350 in taxes, (5+ / 0-)
            Recommended by:
            Armando, kareylou, gatorcog, pstoller78, elwior

            or whatever it is.  The emergency room has to plan on the probability of him somehow showing up anyway.

            The study of law was certainly a strange discipline. -- Yukio Mishima

            by Loge on Wed Apr 04, 2012 at 09:14:01 AM PDT

            [ Parent ]

          •  if we were allowed to opt out of national... (4+ / 0-)
            Recommended by:
            Dave925, gatorcog, elwior, Loge

            responsibilities based on personal ability, billionaires would choose to pay no taxes at all.

            It seems curiosity has killed the cat that had my tongue.

            by Murphoney on Wed Apr 04, 2012 at 09:39:56 AM PDT

            [ Parent ]

      •  uninsured people are engaged as risk-assessment... (3+ / 0-)
        Recommended by:
        Geekesque, Armando, Eric Nelson

        bench-warmers.

        "wait and see" may be more like watching your inventory and waiting for a coupon than it is like getting out there and shopping, but it's still an activity.

        It seems curiosity has killed the cat that had my tongue.

        by Murphoney on Wed Apr 04, 2012 at 08:39:25 AM PDT

        [ Parent ]

      •  Not really (2+ / 0-)

        A significant number of people never seek or receive medical treatment. In addition, Kaiser Foundation studies have found that the uninsured account for less than 2% of all health care spending. That is hardly a "huge amount of money".

        Congress shall make no law abridging the right of the people peaceably to assemble.

        by edg on Wed Apr 04, 2012 at 11:10:03 AM PDT

        [ Parent ]

        •  Congress is entitled to presume otherwise (2+ / 0-)
          Recommended by:
          Geekesque, Loge

          Ok, so I read the polls.

          by andgarden on Wed Apr 04, 2012 at 11:10:59 AM PDT

          [ Parent ]

        •  What dollar figure is 2%? (0+ / 0-)

          Moreover, the problem is that if one enacts a ban on pre-existing condition exclusions, without a mandate that number would skyrocket.

          "[R]ather high-minded, if not a bit self-referential"--The Washington Post.

          by Geekesque on Wed Apr 04, 2012 at 11:12:38 AM PDT

          [ Parent ]

          •  Key Facts From 2008 Report (6+ / 0-)

            Covering The Uninsured - Kaiser Family Foundation

            1. On average, a person who is uninsured for the entire year will spend considerably less on health care -- only 38% of what a person who has health insurance for the full year will spend in 2008.

            2. People who are uninsured (for all or part of the year) will spend about $30 billion out of pocket for health care and receive about $56 billion in uncompensated care while they are uninsured this year. Uncompensated care will make up just 2% of total health care spending in the U.S. in 2008.

            3. Federal and state government dollars will cover at least 75% of uncompensated care, streaming almost $43 billion through health providers and programs for care of the uninsured. Private sources of charity care cover the rest, with little evidence of cost-shifting to the privately insured.

            4. If all the uninsured were to gain health coverage in 2008 and use similar amounts of health care as those with insurance, their health care costs this year would increase from a total of $176 billion to almost $300 billion. Put in perspective, this additional $123 billion would increase the share of GDP going to health care by 0.8%, from 16.5% to 17.3%.

            Congress shall make no law abridging the right of the people peaceably to assemble.

            by edg on Wed Apr 04, 2012 at 11:27:02 AM PDT

            [ Parent ]

            •  So the uninsured get $86 billion in (2+ / 0-)
              Recommended by:
              andgarden, Loge

              health care treatments.

              Seems to rise to the level of Congress's ability to regulate interstate commerce.

              "[R]ather high-minded, if not a bit self-referential"--The Washington Post.

              by Geekesque on Wed Apr 04, 2012 at 11:34:30 AM PDT

              [ Parent ]

              •  You're changing your contention. (1+ / 0-)
                Recommended by:
                splintersawry

                Your original contention was that uninsured cost a huge amount of money. They do not. It's only 2%. Now your contention seems to be something about Congress and interstate commerce. I made no claims or statements about Congress's abilities. I simply refuted your specious claim about the cost of uninsured care.

                Congress shall make no law abridging the right of the people peaceably to assemble.

                by edg on Wed Apr 04, 2012 at 11:45:14 AM PDT

                [ Parent ]

                •  $56 billion is a huge amount of money. eom (1+ / 0-)
                  Recommended by:
                  Loge

                  "[R]ather high-minded, if not a bit self-referential"--The Washington Post.

                  by Geekesque on Wed Apr 04, 2012 at 12:07:18 PM PDT

                  [ Parent ]

                  •  Not in $multi-trillion. It's a rounding error. n/t (1+ / 0-)
                    Recommended by:
                    splintersawry

                    Congress shall make no law abridging the right of the people peaceably to assemble.

                    by edg on Wed Apr 04, 2012 at 12:13:28 PM PDT

                    [ Parent ]

                    •  Are you seriously arguing that $56 billion is (2+ / 0-)
                      Recommended by:
                      Loge, andgarden

                      not a sufficiently large sector of the economy to warrant regulation by Congress?

                      "[R]ather high-minded, if not a bit self-referential"--The Washington Post.

                      by Geekesque on Wed Apr 04, 2012 at 12:17:19 PM PDT

                      [ Parent ]

                      •  No. (3+ / 0-)

                        I'm arguing that 2% of total healthcare spending, 75% of which is reimbursed by state and Federal funds, puts the lie to claims that uninsured persons 1) cost hospitals large amounts of money and 2) drives the cost of insurance higher for Geekesque or anyone else. It does not. Simple mistakes and intentional/unintentional overbilling by providers account for more than 2% of healthcare costs. Why single out the uninsured, many of whom are down on their luck, unemployed, or otherwise financially hindered, for blame? Can you not justify ACA on its own merits without fallacious finger-pointing and a "blame the victim" mentality?

                        Congress shall make no law abridging the right of the people peaceably to assemble.

                        by edg on Wed Apr 04, 2012 at 12:23:09 PM PDT

                        [ Parent ]

                        •  It's not a blame the victim game. (1+ / 0-)
                          Recommended by:
                          Loge

                          Most of the people are uninsured because they can't afford insurance.

                          The point is that expanding the pool of insured people is a completely valid exercise of the Commerce clause, and that the uninsured are already part of that commerce to such a large degree ($86 billion/year) that Kennedy's construct of the ACA 'forcing them into commerce' is patent hogwash.

                          "[R]ather high-minded, if not a bit self-referential"--The Washington Post.

                          by Geekesque on Wed Apr 04, 2012 at 12:29:24 PM PDT

                          [ Parent ]

                          •  But it's not. (2+ / 0-)
                            Recommended by:
                            m00finsan, splintersawry

                            Expanding the pool of insured people by forcing people to buy a service from a private company is morally wrong. You're swatting a gnat with a sledgehammer. Medically unnecessary tests and treatments cost $850 billion per year. Fixing that problem would free enough money to cover every uninsured person with a "Cadillac" plan and still leave hundreds of billions of dollars available for other purposes.

                            Congress shall make no law abridging the right of the people peaceably to assemble.

                            by edg on Wed Apr 04, 2012 at 12:38:25 PM PDT

                            [ Parent ]

                          •  "Morally wrong?" That's some rigorous (2+ / 0-)
                            Recommended by:
                            andgarden, Loge

                            constitutional analysis there.  Would make the Lochner court blush.

                            "[R]ather high-minded, if not a bit self-referential"--The Washington Post.

                            by Geekesque on Wed Apr 04, 2012 at 12:39:48 PM PDT

                            [ Parent ]

                          •  I'm not making a constitutional analysis. (2+ / 0-)
                            Recommended by:
                            m00finsan, splintersawry

                            I'm disagreeing with your contention that uninsured people be made to pay for their crime of being uninsured (a "huge amount of money", according to you) by being forced to buy a service from private, for-profit companies.

                            Congress shall make no law abridging the right of the people peaceably to assemble.

                            by edg on Wed Apr 04, 2012 at 12:55:56 PM PDT

                            [ Parent ]

                          •  Libertarian nonsense. (1+ / 0-)
                            Recommended by:
                            Loge

                            It's not punishment to receive a subsidized private health insurance.  

                            "[R]ather high-minded, if not a bit self-referential"--The Washington Post.

                            by Geekesque on Wed Apr 04, 2012 at 01:00:17 PM PDT

                            [ Parent ]

                          •  I'm not Libertarian. I'm old-fashioned liberal. (2+ / 0-)
                            Recommended by:
                            m00finsan, splintersawry

                            You claimed uninsured cost a huge amount of money. I disproved that. The report I linked states that insuring the uninsured will cost 3 times that "huge amount of money" you are so worried about.

                            If you don't have a legitimate rationale for ACA that doesn't involve scapegoating the uninsured, and you are not a liberal, and you don't want Ted Kennedy's "Medicare For All Act", then at least be honest about your motives and intentions when you are called out on them. Sheesh!!

                            Congress shall make no law abridging the right of the people peaceably to assemble.

                            by edg on Wed Apr 04, 2012 at 01:18:55 PM PDT

                            [ Parent ]

                          •  You should read up on adverse selection. (0+ / 0-)

                            Paul Krugman is an excellent source.

                            "[R]ather high-minded, if not a bit self-referential"--The Washington Post.

                            by Geekesque on Wed Apr 04, 2012 at 01:49:40 PM PDT

                            [ Parent ]

                          •  Re: Krugman (0+ / 0-)

                            Krugman says: "Is requiring that people pay a tax that finances health coverage O.K., while requiring that they purchase insurance is unconstitutional?"

                            To which I say, YES!! Because tax financed coverage does not include the 15% profit that private companies extract from my insurance purchase under ACA.

                            Congress shall make no law abridging the right of the people peaceably to assemble.

                            by edg on Wed Apr 04, 2012 at 02:00:57 PM PDT

                            [ Parent ]

                          •  That's not a constitutional principle. eom (0+ / 0-)

                            "[R]ather high-minded, if not a bit self-referential"--The Washington Post.

                            by Geekesque on Wed Apr 04, 2012 at 02:02:13 PM PDT

                            [ Parent ]

                          •  We were discussing cost, remember? (0+ / 0-)

                            Your comment, the one I replied to, was about the huge amount of money uninsured people cost you. By implication, that is your economic rationale for ACA. I was not discussing constitutional principles because that is not what your comment was about.

                            The economics are this: Medicare, excepting Advantage, insures individuals for 2/3 of what private insurance would cost. Advantage insures them for 4/5 of private insurance. You want me to pay an extra 1/3 of my hard-earned money to private insurance companies for a policy or else pay a penalty tax to avoid buying a policy. Your justification for fleecing me, in your very own comment, was that the uninsured cost a huge amount of money. I disagreed and demonstrated that the uninsured are a tiny 2% portion of the cost of healthcare.

                            I know you want to keep changing the subject to topics your comment was not about. Perhaps you'd like to rescind the comment I replied to, the one at the top of this comment thread?

                            Congress shall make no law abridging the right of the people peaceably to assemble.

                            by edg on Wed Apr 04, 2012 at 02:27:03 PM PDT

                            [ Parent ]

                          •  If you're not making constitutional (0+ / 0-)

                            arguments, why are you here?  Is there a basis for the Supreme Court to strike the law other than Constitutionality?  If they do strike the law, quite a few laws that we see as moral imperatives go down with it.

                            The mandate isn't even really a mandate.  If you still can't afford it, there's no obligation to buy insurance or pay the tax.  I'd you can, I assume you don't have a moral objection to kicking the feds a few hundred dollars as putting your money where your mouth is about how bad for profit companies are?  (by the way, under Obamacare, the for profit aspects no longer apply to the first 90% or so of premium dollars that have to be spent on health care.)

                            The study of law was certainly a strange discipline. -- Yukio Mishima

                            by Loge on Wed Apr 04, 2012 at 02:13:15 PM PDT

                            [ Parent ]

        •  Do you have statistics to document that "a (0+ / 0-)

          significant number of people never seek or receive medical treatment?

          What'd the devil give you for your soul, Tommy? He taught me to play this here guitar REAL good. Oh son, for that you traded your everlastin' soul? Well, I wuddn' usin' it.

          by ZedMont on Wed Apr 04, 2012 at 12:57:18 PM PDT

          [ Parent ]

        •  I'll take that small amount of money (0+ / 0-)

          In cash, thanks.  Two percent of all health care spending still adds up to an interstate commerce problem.  Anyway, the Court properly deals with what congress can reasonably conclude base on Congress's findings, not engage in de novo review of that fact finding.  Yours is an argument to repeal the mandate by one with the Co situational power to do so, which doesn't include the Supreme Court in my view as there's no Constitutional violation.  Marbury means the law is unconstitutional, not unnecessary in the view of edg.

          The study of law was certainly a strange discipline. -- Yukio Mishima

          by Loge on Wed Apr 04, 2012 at 02:08:20 PM PDT

          [ Parent ]

    •  Apply the distinction then (1+ / 0-)
      Recommended by:
      Geekesque

      to persons to whom the individual mandate applies.

      You can't.

    •  not so (10+ / 0-)

      the mandate is structured so it is only an obligation of people who would otherwise file individual tax returns, so they HAVE engaged in commerce.  And even if that weren't the case, it wouldn't matter, because Congress can regulate the entire health insurance market in any manner that wouldn't otherwise violate the Constitution.  That's the authorization.  The other view is a Lochner era ideal.  As for the slippery slope, people who don't drive aren't in the care insurance market, and people who don't eat broccoli aren't in the broccoli market.  People who don't obtain health insurance are still in the health care market, so Congress's power to regulate that market is plenary.  It's actually the burden of the critics of the mandate to show what other provision of the Constitution is being violated, and other than a now-repudiated theory of the due process clauses, I can't think of one.

      The study of law was certainly a strange discipline. -- Yukio Mishima

      by Loge on Wed Apr 04, 2012 at 09:12:51 AM PDT

      [ Parent ]

      •  I've tried to make this point all year (4+ / 0-)
        Recommended by:
        Loge, MKinTN, ZedMont, elwior
        •  I have argued this too. Here's my logic. I don't (0+ / 0-)

          have health insurance, but I have a heart attack, and my family calls an ambulance and has me sent to the emergency room.

          I receive services and incur costs.  If I don't pay for the services I have received, I am technically subject to a lawsuit for collection.  

          It seems to me that there is an implied contract there.  Why are we saying I haven't engaged in commerce?  Because I didn't receive services that demand payment?  No. I did.

          So, is it because I didn't pay for those services that I am deemed not to have engaged in commerce, i.e., there was never a transaction?

          That would be a curious result, because employing that theory, I could escape liability in a lawsuit for failing to pay for something I purchased - by simply not paying for what I had purchased.  No payment, no transaction.

          Someone pays for my ambulance and ER treatment.  There is still a transaction for healthcare supplied to me, regardless of whether I paid the bill or you did, no?

          Well, what if you never intended to go to the hospital, you were unconscious and taken there without your knowledge?
          I don't know, what about that?  What if I wander onto a toll road without realizing it, do I get a pass?  What if I park my car in a lot, and I don't see the coin box, don't realize I'm in a commercial parking lot, think I'm parking for free.  Do I get a pass?

          Someone please explain to me how I have not engaged in commerce when I avail myself of services for which payment is required and payment will be made (by someone).

          What'd the devil give you for your soul, Tommy? He taught me to play this here guitar REAL good. Oh son, for that you traded your everlastin' soul? Well, I wuddn' usin' it.

          by ZedMont on Wed Apr 04, 2012 at 01:34:29 PM PDT

          [ Parent ]

          •  You have (1+ / 0-)
            Recommended by:
            ZedMont

            There are three strands of Contract law. Contracts, implied, and promissory estoppel. You bring up the latter two as to your contract questions.

            Your family has no obligation to call an ambulance.  

            You received a benefit. It is at the very least a clear contract implied.

            You wander onto a toll road? You are on it. You have to pay. If you don't pay the meter. You'll get a ticket.  Those hypos get more into the fact that you did not intend to commit a crime. You acted without "mens rea" or a guilty mind in Latin.

            Usually Mens rea and an act are required for a crime. The ones you say are Strict Liability, so only require the act. A guilty mind is not required.

            I can't see up thread where your question started but you have engaged in commerce albeit intrastate unless you cross state lines (but under wickard aggregating those like you it still falls in the Commerce Power). The only possibility I could think of is if you owed me 500 dollars. I made a contract with the hospital that I'd pay you back by them giving you up to 500 dollars of care.  You are not a party to the contract. You are an intended third party beneficiary. And you and I are even after I pay the Hospital.

            •  Thanks for the explanation. And I would have (1+ / 0-)
              Recommended by:
              splintersawry

              thought this important to the case, until I read down thread that Scalia had insisted this is about regulating the health insurance industry, not the healthcare industry per se.

              That pretty much renders moot the argument that everyone participates in the healthcare industry, at least as far as Scalia is concerned.

              What'd the devil give you for your soul, Tommy? He taught me to play this here guitar REAL good. Oh son, for that you traded your everlastin' soul? Well, I wuddn' usin' it.

              by ZedMont on Wed Apr 04, 2012 at 03:09:29 PM PDT

              [ Parent ]

      •  Do you happen to have the language of the (0+ / 0-)

        mandate handy. I'd be curious to see how it's written with respect to your first issue.

        But the second issue, I think that argument fails. It's not any more necessarily the case that a person who doesn't buy health insurance is in the health care market than a person who doesn't have a car is in the car insurance market. I went without health insurance for several years when I was young and dumb in my twenties, and, by the luck of the draw, I never got sick or injured. So was not in the health care market, or the health insurance market. I was a zero to the whole thing. Alternatively, it's entirely possible that I might not have car insurance or a car, but still end up driving a car and killing someone in an accident, in which case that person would have to sue me personally (unlikely to recover anything, or be covered by their own insurance). In fact, "uninsured motorists" insurance is a tax paid by the rest of the driving population that does have insurance. It works in almost the exact same way: the uninsured impose costs on everyone else.

        •  you weren't a zero to the whole thing, (0+ / 0-)

          because hospitals had to factor in the prospect of your arriving and not being able to pay.  

          Here is the text:  http://en.wikisource.org/...

          "Applicable individual" is defined broadly, but the enforcement is much narrower.  It also excludes certain religious persons, undocumented immigrants, and people who are incarcerated.  All of those people have, however, due process rights.  But as for enforcement, for instance, there's no penalty imposed on "Any applicable individual for any month if the applicable individual's required contribution (determined on an annual basis) for coverage for the month exceeds 8 percent of such individual's household income for the taxable year . . ."

          But even if that weren't the case, look at the findings of fact.  Congress has broader power than it chose to exercise:  "(G) Under sections 2704 and 2705 of the Public Health Service Act (as added by section 1201 of this Act), if there were no requirement, many individuals would wait to purchase health insurance until they needed care. By significantly increasing health insurance coverage, the requirement, together with the other provisions of this Act, will minimize this adverse selection and broaden the health insurance risk pool to include healthy individuals, which will lower health insurance premiums. The requirement is essential to creating effective health insurance markets in which improved health insurance products that are guaranteed issue and do not exclude coverage of pre-existing conditions can be sold."

          The study of law was certainly a strange discipline. -- Yukio Mishima

          by Loge on Wed Apr 04, 2012 at 11:55:04 AM PDT

          [ Parent ]

          •  So it appears that you were wrong (0+ / 0-)

            The mandate applies to all "individuals" not specifically excluded whether or not they've engaged in commerce. The fact that the penalty provision is more limited is irrelevant, unless you think the SCOTUS should consider the fact that some scofflaws will be unpunished to be some sort of key factor in determining the constitutionality of a piece of legislation.

            Citing to findings that show the link between the mandate and interstate commerce is also not relevant to the discussion we're having here.

            •  No, it appears I used the words apply to (0+ / 0-)

              in a way that makes sense, which congress did not.  The significance of being an "applicable person" who does not file taxes or who does not earn the minimum is . . . nothing.  I don't think whether an exercise of commerce clause power is constitutional depends on form versus substance, and it's an exercise of commerce power even if the definition were broader or the tax were collected from even more people.  (there may be other objections not raised here.)

                I do think the limits of the penalty provision are relevant to this discussion, however, as court challenges need plaintiff standing, and the legislative findings are 100% relevant as they show the democratically elected branch considered and rejected the points you are making about people being magically outside the market.  In other words, Congress rationally concluded "applicable persons" are involved in commerce, and some of those are called to account.  It's not fair is not a commerce clause argument, but the structure of the mandate makes it a lot fairer than critics allege.

              The study of law was certainly a strange discipline. -- Yukio Mishima

              by Loge on Wed Apr 04, 2012 at 01:36:47 PM PDT

              [ Parent ]

              •  There is no "tax" at issue here (0+ / 0-)

                If there was a tax from a "substantive" point of view, there'd be no case. Congress clearly has the power to raise taxes and use it fund health care.

                This whole idea that because there isn't a penalty for not doing something that you're required by law to do means that you're really not required to do it makes me sort of angry. I try to do things that are required by law because that's my moral and ethical duty (assuming that I don't believe the law in question to be unjust), not because of whatever the punishment may or may not be.

                The fact is that the mandate applies to every single individual in the nation not specifically excluded, and given that the exclusions have nothing to do with whether or not you engage in commerce, that means that it applies to people who are not engaged in commerce generally, and it also applies even more broadly to people who are not in the health care market.

                The argument that you affect the health care market even if you are not in it has not limits. I affect every market that I'm not involved in. I'm sure the American auto industry would be better off if I bought a car. The life insurance industry would be better off if I bought life insurance. The security industry would be better off if I bought a home security system. All of these industries also have knock-on effects on the wider society and government. The federal government had to bail out and still owns part of the auto industry, and unemployment and economic dislocation in places like Michigan is a huge national problem. If I don't have life insurance and I die early, my family might be forced onto welfare. If I don't have a home security system, the local police will incur extra expenses in keeping my home safe.

                The principle that government can force you into commerce against your will because it will help the economics of an industry that public policy needs to be healthy has no reasonable limits, and in the oral arguments I didn't hear the government announce any. If they uphold it, there will be virtually nothing the Congress wouldn't be able to force citizens to do economically, provided they, as Obama said, have the majority to do it.

                •  This is just wrong, (0+ / 0-)

                  but I'd simply note that your argument cuts just as much in favor of a broader reading of the commerce clause than even I'm willing to go as it does to support the notion the individual mandate falls outside of the limitation you think is transgressed.  However, a market you affect by not participating is not the same thing as a market you affect where you already receive an implied benefit.  The product is access, which everyone enjoys, and most will enjoy for reals. If there must be a constitutional basis, and not simply leave it to Congress and voters not to mandate car purchases (though as Congress can do the same thing thru taxes, why this is important escapes me), I'd say those examples lack rational basis while the economics of health insurance show there is a sound basis to believe that the uninsured do a lot to shift costs in a way that the cost shifting of not buying broccoli is trivial.

                  The SG's brief notes that they taxing power in the Constition is broader than "tax" as commonly and politically understood.  But the fact that the taxing power means the congress could do something different doesn't make the mandate not a tax. It's an essentialist argument.  

                  Second part last, who the fuck cares.  Congress has a rational basis to assume people are venal and the Court should respect that judgment,  

                  The study of law was certainly a strange discipline. -- Yukio Mishima

                  by Loge on Wed Apr 04, 2012 at 03:04:37 PM PDT

                  [ Parent ]

                  •  I don't think the rational basis is all that much (0+ / 0-)

                    stronger than for a number of other areas. The Kaiser study was posted elsewhere in this threat showing that people without insurance use less health care than those with it, that their uncompensated care constitutes a very small portion of the nation's total health care bill, and most of that is covered by federal and state governments, and charitable organizations, not by private insurance companies.

                    Do you recognize any limits on the power of the federal government to compel people into commerce, other than the democratic process?

                    •  i don't accept the premise (1+ / 0-)
                      Recommended by:
                      andgarden

                      that people are compelled into commerce, or that the scope of commerce clause power is determined by looking at the micro level.  The regulation is "of" the whole market in ways that the reductio arguments are not for those similar markets.  The reasons the mandate makes sense in the whole context of the PPACA are why the Court should uphold it but also why it passed, so I wouldn't dismiss democratic checks so lightly.  Why is this the case where we need to articulate a limiting principle.  That gets it backwards -- you have to show that the mandate is not regulating interstate commerce, and you've demonstrated repeatedly that you can't do it.  Likely some of the things forgone that you mentioned couldn't be regulated as commerce, but not access to health care that you receive by virtue of being a statistical risk.  The limiting power is that Congress has to use proper means to solve a problem that is commercial and interstate in nature.  Health care costs meet the latter criteria, and the mandate meets the former, unless you invent a due process objection.  Other hypothetical mandates might fail that test in different ways.

                      The Kaiser study was cited for the proposition that $86 billion was a small amount of money, and the existence of disagreement doesn't undermine the notion that there's rational basis for Congress to rely on different studies.  Your argument simply shows you don't know what rational basis review means.

                      The study of law was certainly a strange discipline. -- Yukio Mishima

                      by Loge on Wed Apr 04, 2012 at 03:32:48 PM PDT

                      [ Parent ]

                      •  Nice straw man (0+ / 0-)

                        I didn't cite the Kaiser study to state that there wasn't rational basis; just that it's not that particularly much stronger than it is for other arguably comparable situations.

                        You say that the limiting factor is that "Congress has to use proper means to solve a problem that is commercial and interstate in nature". How is that a limiting factor, when you haven't articulated any limitations on what is "proper". Isn't that the issue here? We don't dispute that the health care industry is commercial and interstate in nature; the dispute is whether compelling commerce is a "proper means" to address it. There are any number of examples of other industries that are "commercial and interstate in nature", but we haven't yet proposed compelling commerce as a means of solving problems in those industries, yet we certainly could.

                        According to your limiting principle, could the federal government compel people to purchase disaster insurance. Disasters certainly have an effect on interstate commerce, and the longer it takes a place to get back on their feet, the more of an effect that it will have, and so having everyone purchase disaster insurance would help to make sure that when a disaster strikes, the resources will be there to allow for the return of commerce as quickly as possible. Would that be beyond your "limiting principle"?

                        •  Of course it could (0+ / 0-)

                          Congress could also raise everyone's taxes and provide the disaster insurance itself. Or it could just hand the money over to an insurance company.

                          Why do you think this is controversial?

                          Ok, so I read the polls.

                          by andgarden on Wed Apr 04, 2012 at 04:30:49 PM PDT

                          [ Parent ]

                        •  Possibly as to disaster insurance, (0+ / 0-)

                          but for that, it's not self evidently absurd, at least for those with property to insure.

                            I see you concede I did state a limiting principle (three actually -- commercial problem, interstate effects, proper means).  It's your burden to show improper, and you can't do it. Either there isn't a rational link (and for your sake I'll let what you said about rational basis slide as it shows both ignorance of economics and basic statutory construction) or a due process liberty of contract.  I've given you a workable rule that happens to be existing law and shown the mandate passes it.  I'm not going to engage further with arguments that say essentially we're opening a slippery slope unless we overturn something.

                          The study of law was certainly a strange discipline. -- Yukio Mishima

                          by Loge on Wed Apr 04, 2012 at 04:37:54 PM PDT

                          [ Parent ]

  •  This really doesn't get you there, though Wickard (2+ / 0-)
    Recommended by:
    Mindful Nature, Seneca Doane

    quite possibly does.

    •  Both do (6+ / 0-)

      As does virtually every case since 1937.

      The argument I present is addressing a specious distinction between "activity" and "inactivity".

      The NLRA mandates employers to bargain with employees chosen representative.

      It forces "activity."

      I strongly disagree with your comment.

      •  An employer has chosen to enter commerce in (1+ / 0-)
        Recommended by:
        erush1345

        connection with the regulated activity.

        The inactivity argument is that the individual has not chosen to do so in connection with healthcare.   You can dispute this factually; but if it is factually accepted, the case you cite will not contravene it.    Wickard largely does however.

        •  That is a liberty argument (2+ / 0-)
          Recommended by:
          Loge, FogCityJohn

          Not a Commerce Clause argument.

          Please read the excerpts I provide again.

          You are misunderstanding the case and indeed all the cases.

          And, as I said to you before, the argument you make should be used on an "as applied" basis, not as a facial challenge to the mandate.

          Also, too, it is not a ripe argument, as the mandate has not been applied to any individual in the circumstance you describe.

          •  I've read both of those attacks on the inactivity (0+ / 0-)

            argument.  

            They are not really very persuasive.   There is nothing that says an argument against the reach of enumerated powers may not also implicate liberties.  

            And, while I'm sure you've argued that the attacks against the mandate should be made on an as applied basis, you've not made that argument to me (though as I've heard it made by those who are actually serious legal scholars I don't think I've suffered thereby).  

            Perhaps you are confusing me with someone else?

            Would that be the source of your unwarranted and not very persuasive condescension?

            •  There are too many cases to count (0+ / 0-)

              including the one I cite in this post that say precisely that.

              You are arguing that Lochner Era substantive die process liberty of contract prohibits this exercise of the Commerce Power.

              That's your argument. Certainly it is an embarrassing argument for an erstwhile progressive to be making, and leads, understandably, to contortions to avoid that, but that is what it is.

              No, I don't imagine being called on that is very "persuasive" to the person arguing for Lochner.

              •  First off, it's not my argument (1+ / 0-)
                Recommended by:
                erush1345

                I think it fails.  Wickard is still good law and those opposing the mandate have not been willing to argue that it should be overturned.  Absent that, their argument fails.  

                However, I've taken the time to understand the argument; and if you are seriously conflating it with Lochner's economic substantive due process it would seem that you have not.

                •  Explain how you distinguish it? (1+ / 0-)
                  Recommended by:
                  Loge

                  You appear to know the cases.

                  You see the language regarding the expansive power over commerce Congress has.

                  You try to cabin the Lochner argument as a limiting principle to the expansive power.

                  I see no argument from you that is not Lochner based.

                  This is silly.

                  •  To start... (0+ / 0-)

                    1.  Liberty or rights based arguments are efficacious against action by the states as well as the Federal government.  The inactivity argument works, if at all, only against the Federal government.

                    2.  Fundamentally, this is an argument about the extent or breadth of Congressional power, not an assertion of a right which limits that power.   Within the broad boundaries of Congressional power, this argument has no effect.  A rights based argument works to limit Congressional power within those boundaries.

                    3.  An argument sounding in economic substantive due process would subject significant swaths of federal regulation such as minimum wage laws and collective bargaining to challenge. The inactivity argument does not.  (You can choose not to hire employees; if you do so you are engaging in activity and could not raise an inactivity based argument; but you could still raise an argument that your "liberty of contract" was being interfered with.   Nothing about the inactivity argument makes that argument more likely to succeed.)

                    •  Wrong (1+ / 0-)
                      Recommended by:
                      andgarden

                      You write "1.  Liberty or rights based arguments are efficacious against action by the states as well as the Federal government.  The inactivity argument works, if at all, only against the Federal government."

                      That is an unprecedented argument and simply incorrect. If the liberty interest is protected, it is applied to the states through the incorporation doctrine and the 14th Amendment.

                      You write "2.  Fundamentally, this is an argument about the extent or breadth of Congressional power, not an assertion of a right which limits that power.   Within the broad boundaries of Congressional power, this argument has no effect.  A rights based argument works to limit Congressional power within those boundaries."

                      That;s wrong. the Court has consitently stated that the Congress Commerce power and Necessary and Proper power is unbounded except by other Constitutional prohibitions.To wit, federalism and rights such as privacy and liberty.

                      To wit, your argument is application of a Lochner type economic liberty right to bound the Commerce power. That's just what it is.

                      You further write "3.  An argument sounding in economic substantive due process would subject significant swaths of federal regulation such as minimum wage laws and collective bargaining to challenge. The inactivity argument does not. "

                      You'd be surprised. But that is beside the point. Even though you r are arguing for a more limited Lochner style substantive due process economic right, you are still arguing for a Lochner style substantive due process economic right.

                      I know it is tough to admit, but that is what you are
                      doing.

                      I'd prefer a more forthright approach. Randy Barnett style so to speak.

                      •  Smart lawyers (2+ / 0-)
                        Recommended by:
                        Armando, Loge

                        have noticed this from the beginning. It doesn't make any sense to bootstrap a substantive due process argument to a Commerce Clause argument. The only reason the opponents chose to do that is that a forthright assertion of sdp would have been laughed out of court by even the most audacious district court judge.

                        Ok, so I read the polls.

                        by andgarden on Wed Apr 04, 2012 at 10:27:13 AM PDT

                        [ Parent ]

                      •  You are being almost deliberately obtuse here (3+ / 0-)
                        Recommended by:
                        coffeetalk, erush1345, m00finsan

                        though I think you are actually sincere.

                        The first point is that the inactivity argument cannot apply against the states, because it is an argument about the extent of Congressional power under the commerce clause not a liberty argument.  That is why even the proponents of the argument agree that it does not affect the mandate in Massachusetts.  An economic substantive due process argument would apply against the states. That is one of the ways in which the inactivity argument under the comerce clause differs from an economic substantive due process argument such as in Lochner.

                        I'm not going to bother explicating the others because if you don't actually engage with this, we'll be talking past each other.

                        •  You can't explain (1+ / 0-)
                          Recommended by:
                          Armando

                          why States would have this power but Congress wouldn't.

                          Ok, so I read the polls.

                          by andgarden on Wed Apr 04, 2012 at 10:36:51 AM PDT

                          [ Parent ]

                          •  Yes I can (3+ / 0-)

                            States have general police power.

                            Congress is limited to the powers specified in the Constitution.  

                            From the Federal perspective, a state may act unless it is prohibited by a provision of the US Constitution.  Congress may only act if (i) the action is within its powers;  and (ii) it is not prohibited from acting under the Constitution. (This is not controversial and would get a 9-0 vote from the Supreme Court.)

                            The inactivity argument is an argument about (i): is this within Congressional power as set forth in Article I?  Because state power to act is not derived from the Federal Constitution, this argument says nothing about what a state may do.

                            Lochner was an argument about (ii), a prohibition on acting set forth by the Constitution.  Such prohibitions generally apply to both state and federal government.

                            This difference is also why arguments that states can impose all sorts of mandates are not relevant to the discussion of whether Congress can do so under the commerce clause.  

                          •  I have a few questions for you (1+ / 0-)
                            Recommended by:
                            Loge

                            1. Do you agree that the healthcare and or health insurance market is "interstate commerce?"

                            2. Assuming yes, do you agree that the ACA is an attempt by Congress to regulate that market?

                            3. Assuming yes, could any reasonable person believe that the mandate is useful to the market regulations in the ACA?

                            4. Assuming yes, on what basis do you claim that Congress is acting outside of its enumerated powers?

                            Ok, so I read the polls.

                            by andgarden on Wed Apr 04, 2012 at 10:48:37 AM PDT

                            [ Parent ]

                          •  I don't know if you read the whole comment thread (0+ / 0-)

                            and given how long it now is, I wouldn't blame you for not doing so.

                            As I mentioned at least twice, however, I think the inactivity argument fails.  (And perhaps unsurprisingly, therefore, I think the answers to your questions are yes, yes, yes and I don't.)

                            My point has been that Armando (and perhaps yourself) is misunderstanding the nature and breadth of the argument against the mandate, not that I think it is a winning argument.

                          •  What is the limiting principle here? (0+ / 0-)

                            Why is the mandate not necessary and proper? How can you say so in a non-radical way?

                            You have just 100% conceded Armando's point. Sorry.

                            Ok, so I read the polls.

                            by andgarden on Wed Apr 04, 2012 at 10:56:13 AM PDT

                            [ Parent ]

                          •  Why are you assuming contrary to my statements (0+ / 0-)

                            that I think the mandate should fail?

                          •  I thought you were playing (0+ / 0-)

                            devil's advocate here?

                            Maybe you're just saying that we should respect the seriousness of the arguments put forward by people on the other side. I won't do so until they can address my basic questions.

                            Ok, so I read the polls.

                            by andgarden on Wed Apr 04, 2012 at 11:01:35 AM PDT

                            [ Parent ]

                          •  what I am saying is (1+ / 0-)
                            Recommended by:
                            erush1345

                            1.   Armando and you are misunderstanding the nature of the other side's argument, which makes it difficult for you to seriously engage with it.

                            2.  Because of this misunderstanding you think the argument is far more outlandish and, if successful, significant and far reaching than it actually is.

                            3.  The argument is actually fairly limited in its reach and has absolutely nothing to do with economic substantive due process  (though some of its proponents undoubtedly favor that doctrine as well).

                            But,

                            4.  That does not make the argument correct.  In fact, I think it is wrong.

                          •  Limited by what other than (0+ / 0-)

                            the non-credible say-so of the proponents?

                            Ok, so I read the polls.

                            by andgarden on Wed Apr 04, 2012 at 11:19:58 AM PDT

                            [ Parent ]

                          •  First (0+ / 0-)

                            because it is an argument about the extent of Congressional power under Article I and not an economic substantive due process argument, it applies to the Federal government only.

                            Second,  most Federal regulation bans something or requires the doing of something if a person does something else (e.g pay minimum wages if you have employees).  In neither case would an inactivity argument be credible.  I am not aware of any other law which could be challenged by this argument.

                          •  Your first point is merely begging the question (0+ / 0-)

                            Your second is, at best, a factual distinction, not a legal one.

                            Ok, so I read the polls.

                            by andgarden on Wed Apr 04, 2012 at 11:27:20 AM PDT

                            [ Parent ]

                          •  Based on the argument the proponents have actually (1+ / 0-)
                            Recommended by:
                            erush1345

                            made, I think you are wrong.  What are you basing your view of their argument on?

                          •  My understanding of the law as it exists today (0+ / 0-)

                            See, e.g., Judge Sutton's concurrence.

                            Ok, so I read the polls.

                            by andgarden on Wed Apr 04, 2012 at 11:32:07 AM PDT

                            [ Parent ]

                          •  Judge Sutton correctly characterizes (0+ / 0-)

                            the argument as being about the limits of Congressional power under the commerce clause and not about economic substantive due process.   How therefore does his opinion lead you to conclude that opponents of the mandate are arguing for economic substantive due process?

                          •  Because the Congressional power argument (0+ / 0-)

                            cannot be made in face of existing precedent. It simply doesn't make any sense without asking for a radical reimagination of the commerce clause and the necessary and proper clause.

                            Ok, so I read the polls.

                            by andgarden on Wed Apr 04, 2012 at 11:43:00 AM PDT

                            [ Parent ]

                          •  Before I address that interesting question (0+ / 0-)

                            does this mean you are agreeing with Judge Sutton and acknowledging that, however wrong it may be, the argument has nothing to do with economic substantive due process?

                          •  What Sutton actually said: (1+ / 0-)
                            Recommended by:
                            Loge
                            [O]one is left to wonder why the Commerce Clause does the work of establishing this limitation. Few doubt that Congress could pass an equally coercive law under its taxing power by imposing a healthcare tax on everyone and freeing them from the tax if they purchased health insurance. If Congress may engage in the same type of compelling/conscripting/commandeering of individuals to buy products under the taxing power, is it not strange that only the broadest of congressional powers carves out a limit on this same type of regulation?

                            Why construe the Constitution, moreover, to place this limitation—that citizens cannot be forced to buy insurance, vegetables, cars and so on—solely in a grant of power to Congress, as opposed to due process limitations on power with respect to all American legislative bodies? Few doubt that the States may require individuals to buy medical insurance, and indeed at least two of them have. See Mass. Gen. Laws 111M § 2; N.J. Stat. Ann. § 26:15-2. The same goes for a related and familiar mandate of the States—that most adults must purchase car insurance. Yet no court has invalidated these kinds of mandates under the Due Process Clause or any other liberty-based guarantee of the Constitution. That means one of two things: either compelled purchases of medical insurance are different from compelled purchases of other goods and services, or the States, even under plaintiffs’ theory of the case, may compel purchases of insurance, vegetables, cars and so on. Sometimes an intuition is just an intuition.

                            link.

                            Ok, so I read the polls.

                            by andgarden on Wed Apr 04, 2012 at 11:53:54 AM PDT

                            [ Parent ]

                          •  And if you read the paragraph preceding (0+ / 0-)

                            you will note that he is addressing not the plaintiff's argument, but "the lingering intuition—shared by most Americans, I suspect—that Congress should not be able to compel citizens to buy products they do not want."

                            That is why he also notes "And that is why the claimants apparently have no constitutional objection to States that seek to solve this problem with individual mandates or something similar."

                          •  That "intuition" is what drives the argument (0+ / 0-)

                            But the fact remains that it is not a legal distinction.

                            Ok, so I read the polls.

                            by andgarden on Wed Apr 04, 2012 at 12:05:53 PM PDT

                            [ Parent ]

                          •  That intuition drives political opposition to the (0+ / 0-)

                            mandate.  

                            It is not relevant to the legal argument actually presented to the court.

                            Are you acknowledging as Judge Sutton and I do that the plaintiff's argument would not bind the states?

                          •  You appear to have missed my point: (0+ / 0-)

                            There is nothing to the legal argument--which does not amount to a cognizable one under existing precedent--that is not part-and-parcel of the political argument. That is why Scalia was reduced to grumbling about broccoli.

                            Ok, so I read the polls.

                            by andgarden on Wed Apr 04, 2012 at 12:25:45 PM PDT

                            [ Parent ]

                          •  Since you keep insisting that the argument (0+ / 0-)

                            is something that it is not it is not surprising that you fail to understand it.

                        •  Putiing random words together (0+ / 0-)

                          does not make an argument.

                          Do you understand the expansive Commerce power? Have you read Gibbon, Jones and Laughlin Steel. Raich, Comstock?

                          You are making a liberty interest argument.If valid, it applies against the states.

                          Calling a tomato an apple does not make it an apple.

                          •  You keep misunderstanding the argument (5+ / 0-)

                            which is why you keep thinking this is more dangerous and more outlandish than it is.

                            I have read the cases; this is an argument about the extent of the expansive commerce power not a liberty argument much as you would have it so.

                            If you were correct, then it would not matter if this were valid under the taxing power or not; because a liberty argument would constrain the taxing power as much as the commerce power.  Yet even proponents of the activity inactivity distinction acknowledge that this argument would not prevent Congress from acting pursuant to the taxing power.

                          •  A liberty interest COULD (1+ / 0-)
                            Recommended by:
                            andgarden

                            constrain the taxing power.

                            I'm not sure you understand the liberty right argument.

                            This is a liberty argument attempting to cabin the Commerce power.

                            You like their semantic game for some reason.

                            The case law is clear on the expansiveness of the Commerce power.

                            Lawyers of course do not want their arguments to seem radical and the word Lochner is poison.

                            But you are forwarding a Lochner economic liberty argument to cabin the Commerce power.

                          •  A liberty argument could constrain the taxing (0+ / 0-)

                            power but the inactivity argument cannot.  

                            Those who are paying attention would therefore conclude that the inactivity argument is not a liberty argument.

                          •  I would agree with that (0+ / 0-)

                            to the degree that the inactivity argument is NOT a liberty argument.

                            Except it is.

                            I repeat, calling a tomato an apple does not make it an apple.

                          •  No tax Based on What? (0+ / 0-)

                            What Liberty Interest? And based on Equal Protection or Substantive Due Process. They look the same but aren't.

                            Are we talking about Alleghany Coal? Because even under that it was struck down on "rational" basis scrutiny (the lowest).

        •  so does someone who makes enough money (3+ / 0-)
          Recommended by:
          Armando, hazzcon, elwior

          to file an individual tax return as to be subject to the mandate's very mild enforcement penalty.  Even if that weren't so, there'd still be participation in the market.  What Armando's cite demonstrates is that activity/inactivity is a red herring of a distinction.  The sole question is whether what Congress regulates is a commercial problem that spills across state borders.  The health insurance market, and the problems posed in terms of costs by the intentionally or even unintentionally uninsured, do so.  The people who would buy health insurance if they could are not the targets of the mandate, so I'm not discussing them.

          The study of law was certainly a strange discipline. -- Yukio Mishima

          by Loge on Wed Apr 04, 2012 at 09:21:11 AM PDT

          [ Parent ]

      •  IIRC, Wickard also forces activity (2+ / 0-)
        Recommended by:
        Loge, Justanothernyer

        if he couldn't grow his own wheat for his own use, wasn't he forced into the market to buy it?

        •  Yes; that is why I think the argument fails (0+ / 0-)

          if Wickard is not overruled.  ("Fails" in an intellectual and legal sense, not in a predictive sense.)

        •  Wickard is not exactly the same (2+ / 0-)
          Recommended by:
          fuzzyguy, erush1345

          the principle in Wickard that arguably applies is that what you do (growing wheat) in and of itself does not have to be part of the interstate market if your activity affects the interstate market.  Wickard did not address Congress imposing a penalty on inactivity.  

          Here, at times the SG was arguing for an extension of the Wickard reasoning.  He was saying that Wickard held that a person's actions in growing wheat for his own use affected interstate commerce for wheat, so you can regulate that activity (growing wheat) whether that person's activity was part of interstate commerce or not. He argued that a person's "inactivity" -- not buying insurance -- affected the interstate market for insurance, so you can regulate that "inactivity" -- i.e., impose a penalty on it.  It is taking the Wickard principle and asking the Court to take it to the next step.  (That's why Scalia asked his question about where the precedent extends to -- can Congress penalize you for failing to do other things if congress determines that your failure to those other things affects an interstate market?

          •  Interesting (1+ / 0-)
            Recommended by:
            ZedMont

            "That's why Scalia asked his question about where the precedent extends to -- can Congress penalize you for failing to do other things if congress determines that your failure to those other things affects an interstate market?"

            Like if an employer fails to negotiate with the chosen representative of employees?

            See NLRB v.Jones & Laughlin Steel.

  •  in other words (17+ / 0-)
    To rule otherwise would be a radical, extreme and extraordinary decision by the current Supreme Court.
    they won't even blink while striking it down?

    every court is political. the rehnquist majority established the precedent that they don't even need to bother pretending otherwise. this majority most likely will decide what will most hurt obama and then find some tortured byzantine legal rationale to justify it.

    The cold passion for truth hunts in no pack. -Robinson Jeffers

    by Laurence Lewis on Wed Apr 04, 2012 at 08:21:48 AM PDT

  •  Did the SG offer this (1+ / 0-)
    Recommended by:
    Armando

    argument, or was it used in any of the briefs?

    •  I don't think so (2+ / 0-)
      Recommended by:
      Eric Nelson, elwior

      They preferred the "timing" argument I think.

      •  Does that suggest (3+ / 0-)
        Recommended by:
        Armando, coffeetalk, Eric Nelson

        that they didn't find this argument persuasive?

        Couldn't they offered it in addition to the timing argument?

      •  Here's an opinion confirming just that. (0+ / 0-)

        timing argument

        It’s a question of timing. It’s a “when” question, not an “if” question. Plain and simple. That’s because the health care market, unlike every other market, is:

        –Universal: Virtually all of us will need medical care at various points in our lives;

        –Unpredictable: We have no way of knowing when we’ll need medical care; and

        –Expensive: The cost of providing medical care has skyrocketed to the point that most Americans simply can’t afford it without some form of insurance. And when Americans can’t pay for their own care, those costs get shifted directly to the rest of us who do have health care insurance.

        So, when do we force Americans to pay for their health care? Is it before they get sick, or after they get sick? That’s the only significant question left for the Supreme Court to decide, pertaining to the individual mandate. But it may be the issue that the five Republican justices cite to gut the law and essentially send the country back to square one in the health-care debate.

  •  Finally I understand better (9+ / 0-)

    Im pretty slow, but this breaks it down in a way that makes total sense to me as a person fairly ignorant to the law and precedent behind this. I "get it" now.

    Thanks Armando.

  •  the employers have already (3+ / 0-)
    Recommended by:
    SquirrelWhisperer, coffeetalk, VClib

    entered the labor market.  The proper analog to the health care mandate would be if congress imposed a fine on non-employer citizens for failing to hire someone.

    •  I suppose,as Armando suggested, we could produce (2+ / 0-)
      Recommended by:
      Armando, auron renouille

      a lead plaintiff who has never and will never seek medical treatment.

      "[R]ather high-minded, if not a bit self-referential"--The Washington Post.

      by Geekesque on Wed Apr 04, 2012 at 08:34:02 AM PDT

      [ Parent ]

    •  That's silly (7+ / 0-)

      Everyone has entered the health care market.

      More than that, your argument lends itself to an an "as applied" challenge, not a facial challenge to the mandate.

      If you can prove that you never sought health care in your entire life, then you can win.

      Nobody can do that of course.

      •  Is this like original sin? (0+ / 0-)

        If you've ever entered the market your soul is stained?

        Or does what the person will do in the future matter?

        I would think that there are people alive right now who will be dead before they enter the medical marketplace again.

        •  It's constitutional law (6+ / 0-)

          Personally, I think the whole "entered the market" argunment is sheer nonsense.

          There is no such requirement - the test is whether Congress' actions conform to the Commerce Power.

          If you want to raise a Substantive Due  Process economic liberty argument, then do so forthrightly I say.

          If you believe in Lochner, say you do.

          I don't. I also don't believe the Constitution adopted Spenser's Social Statics.

        •  Just like there are many people (2+ / 0-)
          Recommended by:
          elwior, ZedMont

          who will drive and never get into an automobile accident.

          "[R]ather high-minded, if not a bit self-referential"--The Washington Post.

          by Geekesque on Wed Apr 04, 2012 at 08:45:05 AM PDT

          [ Parent ]

        •  Now there is a truly specious argument. (0+ / 0-)

          Yes, there are people alive at the moment who will never do a great deal of things.
             Do I really need to give you examples?

          "We the People of the United States...." -U.S. Constitution

          by elwior on Wed Apr 04, 2012 at 01:46:15 PM PDT

          [ Parent ]

      •  and to your point about taxes being the better (2+ / 0-)
        Recommended by:
        Armando, Eric Nelson

        argument, anyone affected by the mandate is already in some kind of market.  But that's a political decision to limit the downside risk and error cost -- people who don't file individual income taxes are still in the market for health care.

        The study of law was certainly a strange discipline. -- Yukio Mishima

        by Loge on Wed Apr 04, 2012 at 09:27:39 AM PDT

        [ Parent ]

      •  Maybe some people who were born at home could. (5+ / 0-)
        Recommended by:
        Armando, Loge, ferg, Geekesque, elwior

        Everyone who was born in a hospital has already entered the health care market.

        Anyway, here's another argument, but you Constitutional scholar types will have to tell me if it works.

        I've read that the health insurance industry is about to collapse.  Health care costs continue to rise, so insurance rates continue to rise.  As insurance rates rise, younger people stop buying insurance, because they feel they don't need it as much right now, so why pay the high price.  As a result, health insurance companies have a higher and higher number of older, sicker customers, for whom they have to pay out more, causing rates to rise more, and you get a vicious circle which will eventually lead to the demise of health insurance companies.  That seems to be an effect on commerce right there.

        Beyond that, once insurance companies collapse, the entire health industry collapses, because it's based so much on the insurance industry.  Without insurance, most people can't afford to go to the doctor, have any sort of procedure, or go to a hospital.  Without enough customers, doctor's practices and hospitals will close.  That is another effect on commerce.

        •  That's dead right, (3+ / 0-)
          Recommended by:
          andgarden, Armando, ferg

          you've shown that the Congress has a rational basis to believe that passing an individual mandate regulates an interstate problem that is commercial in nature.  That's ordinarily sufficient to uphold a democratically-enacted law.  It's now the burden to show the mandate either does not rationally relate to an interstate commercial problem (i.e., what you say is so wrong no sane person could believe it), or that it violates some other aspect of the Constitution.  You are not wrong in what you say, and nothing the Court has done since 1937, and nothing in petitioners' briefs, justifies finding a separate violation.

          The study of law was certainly a strange discipline. -- Yukio Mishima

          by Loge on Wed Apr 04, 2012 at 10:16:08 AM PDT

          [ Parent ]

  •  I'm worried about (5+ / 0-)
    Recommended by:
    Armando, semiot, Loge, ferg, elwior

    the destruction to commerce that overturning the ACA will bring about.  People were being denied services time and again by their insurers, insurance was becoming literally worthless for those of us who did have coverage.  And for those of us who did not have coverage, living was even more impossible.  The entire healthcare system seemed teetering on collapse.  Because we have a disabled child we are always in the middle of it and accessing it.  Things seem a bit more stable in SOME areas already due to the few provisions of the ACA that have been enacted.  There is much that is still to be enacted, and standing on the ACA we had purchase to argue for ever better affordable treatment for all.

    The health of the entire nation is at risk.  It was at risk before the ACA was argued for and signed off on, and it will return to that state five minutes after the ACA is overturned.  Only at this time the financial means for the 99% is in even worse shape than it was four years ago, and I don't know what happens to us as a society with no healthcare rules for the without morals or humanist principles Harvard Business School and all those that aspire to the same greatness.

    How far back into the jungle will we go before the elite realize they can't live by the real laws of the jungle and they will in fact be the first to go?  Did Ayn Rand really ever kill her own dinner, cook it over an open fire, eat it quickly and kick the fire dead slinking off into the darkness of the jungle before the smell of an easy dinner with its own desert in hand hit the big cats?

  •  I think you are misstating the (8+ / 0-)

    inactivity/activity argument as the law's opponents are framing it.

    In discussing the constitutionality of the individual mandate in the Affordable Care Act, much has been made of the supposed unprecedented nature of the regulation of "inactivity."
    No one is arguing that Congress can never "regulate inactivity" under the Commerce Clause.  Everyone agrees that, once you enter commerce, or once you engage in commercial activity, THEN actions -- activity OR inactivity -- can be regulated.  Thus, once an employer entered into a commercial relationship -- hiring employees -- his commercial relationship could be regulated, and that include forcing certain actions in conjunction with that commercial relationship.  Once you enter the market, then your "inactivity" in certain aspects of that market can be regulate, and Congress can say that you must do things if you want to continue the commercial activity.   That's what the NLRB case held.

    The question before the Court, according to the law's opponents, is whether the power to regulate commerce includes the power to force people into commercial activity in the first place.  In the NLRB situation, it would be more akin to forcing a person to hire employees in the first place.    The ACA's opponents completely agree that, once a person hires employees -- i.e., takes that step -- then that is activity that affects commerce, and all aspects of that activity -- that employer/employee relationship -- can be regulated, including "compelling activity" in the context of that relationship.   They don't contest the NLRB situation at all, because Congress didn't compel the commercial activity-- the employer/employee relationship -- that was the trigger for the regulation.

    Everyone agrees that, once someone enters into a commercial relationship with a health insurer, every single aspect of that relationship can be regulated.  The ACA's opponents absolutely concede that, if a person becomes part of that market, THEN Congress could "compel activity" with respect to the commercial activity the person had entered.  The question is whether Congress can force (by imposing a penalty) a person to enter into a commercial relationship in the first place.

    In every prior commerce clause case, a person had done something overt that that triggered the ability of Congress to regulate that person's activities under the Commerce Clause.  This is the first case where the question is whether Congress can, under the Commerce Clause, regulate everyone in the United States, whether they have overtly done something to trigger that regulation or not, simply by virtue of Congress' assertion that, in the future, they WILL do something to trigger the regulation.  Read the transcript of the argument.  It's pretty clear that both sides acknowledge that once you had overtly done something that triggered the commerce clause regulation, THEN Congress can "compel activity" in conjunction with what you overtly did.    

    There certainly are arguments in favor of the constitutionality of the law.  But if you are going to refute the opponents, you at least ought to make sure you have their argument straight.  They are NOT arguing that Congress can never "compel activity" under the commerce clause.  It does no good to misstate the opponents argument and then refute your own misstatement of their argument.  

    •  Then no facial challenge should be entertained (9+ / 0-)

      The argument you make is for "as applied" challenges. LEt hte person who has not entered the "health care market" make their arguments.

      BTW, I completely disagree with you on what the activity/inactivity argument has been.

      They say it is UNPRECEDENTED!!!!!!!!!!!!!!!!!!!!!!

      You are trying to trim the argument to something arguably sane.

      •  You are wrong. (6+ / 0-)

        First, an "as applied" challenge is when the law on its face might be constitutional, but when we see how it is applied, it is only then that the constitutional issues arise.  In other words, it is constitutional when you look at it, and constitutional in most situations, but only in some situations is it arguably unconstitutional.  The opponents are saying that the mandate portion of the law is facially unconstitutional, because on its face it compels a person to do the very commercial activity that triggers the ability of Congress to regulate under the Commerce Clause.

        Second, it is unprecedented.  There is no prior case where Congress compelled the very commercial activity that triggered the Commerce Clause regulation.  There is no prior case where, simply because one lives in the United States, Congress has asserted the power to regulate under the Commerce Clause.  That does not mean that the law is unconstitutional.  It does mean that it is "unprecedented" in the sense that no precedent exists for whether it is constitutional or not.  

        Even the SG recognized that it was unprecedented.  His argument was that what was unprecedented about the law was timing -- under the view of the law's proponents, Congress is just requiring a person to enter that commercial activity now because Congress believes that the person will engage in that commercial activity in the future.  Even the proponents recognized that the exact situation is unprecedented.  That does NOT mean it is unconstitutional.  Many Commerce Clause cases that reach the SCOTUS are unprecedented -- if there's precedent, there's no need for the SCOTUS to take the case.  It's usually when there's no SCOTUS precedent that the SCOTUS takes the case in the first place.  

        Even the four liberals on the Court recognized that there's no precedent for this.  When they "helped" the SG with his argument, the tenor or the comments was, yes, this is a unique (same as unprecedented) situation, because the market we are talking about is unique.    

        Whether you frame the argument as the opponents do -- compelling the commercial activity that gives rise to the right to regulate -- or as the proponents do - a timing difference, i.e., compelling the commercial activity now instead of waiting for a person to enter that commercial activity later -- it is unprecedented, because no prior case addressed that issue.  

        •  What a ridiculous comment (6+ / 0-)

          The commercial activity being regulated exists - to wit the health care and health insurance markets.

          No one recognized there is no precedent for this. To the contrary, most everybody recognized there is no precedent for NOT allowing this.

          You need to go ahead and be honest about what you are arguing - that THIS exercise of the Commerce power and the Necessary and Proper power is prohibited because it infringes upon a Lochner like substantive due process economic liberty right.

          That's your argument and you are too ashamed to admit it.

          I would be too if I were you.

          •  Again, you are misstating what I said. (1+ / 0-)
            Recommended by:
            VClib

            There is precedent -- case law -- that states certain principles.  That is always the case.  The question is how to apply those principles in this NEW situation.  It's the new situation that makes the case "unprecedented."

            This is "unprecedented" in the sense that Commerce Clause principles have never be applied to this kind of situation.   That's what unprecedented means.  

            Of course the health insurance market exists.  Of course Congress can regulate the health insurance market.  Everybody agrees about those two things.  The question is whether Congress can compel someone to enter the health insurance market in order to bring them within Congress' regulation of the health insurance market.  Or (if you are the administration) whether Congress can compel you to enter the market before you wanted to.  Neither the NLRB case, nor any other case I'm aware of, addresses the scope of the Commerce Clause in that situation.  There is no situation where Congress has used the Commerce Clause to require a person to engage in a specific kind of commercial activity in the first place.  

            Lots of "unprecedented" situations come to the SCOTUS.  That simply means that the Court has to take certain principles and apply it to a situation that the Court has not addressed before.

            •  By your definition (5+ / 0-)

              every case in unprecedented.

              I will note that you have the decency to not deny that you are making an economic liberty of contract argument.

              You also continue to ignore the point of my post BTW. You write "There is no situation where Congress has used the Commerce Clause to require a person to engage in a specific kind of commercial activity in the first place. "

              Wrong, the NLRB case subject of this post describes the NLRA as requiring employers to engage in negotiation with the chosen representative of employees.

              Hence. Congress required a company to engage in a specific kind of commercial activity in the first place.

              You are wrong, wrong wrong on all points.

              But good for you for admitting that you are arguing Lochner.
               

              •  You are being disingenuous now. (2+ / 0-)
                Recommended by:
                eatbeans, JLan

                I am not "arguing" Lochner.  That is a disingenuous statement.  I presume that, since you cited Lochner, you know that it was NOT about the Commerce Clause at all, but about the 14th Amendment and substantive due process.  

                The SG -- the Administration -- admitted that it was unprecedented in EXACTLY  the way I argued, i.e., a situation that the SCOTUS has not addressed before.  Here is the Administration's statement from the transcript:  

                GENERAL VERRILLI: Let me try to answer that question, Justice Kennedy, and get back to the question you asked me earlier. The -- the -- I do think one
                striking feature of the argument here that this is a
                novel exercise of power is that what Congress chose to
                do was to rely on market mechanisms and efficiency and a
                method that has more choice than would the traditional
                Medicare/Medicaid type model. And so, it seems a little
                ironic to suggest that that counts against it.  But beyond that, in the sense that it's novel, this provision is novel in the same way, or unprecedented in the same way, that the Sherman Act was unprecedented when the Court upheld it in the Northern Securities case; or the Packers and Stockyards Act was unprecedented when the Court upheld it, or the National Labor Relations Act was unprecedented when the Court upheld it in Jones & Laughlin; or the dairy price supports in Wrightwood Dairy and Rock Royal.
                what I said is exactly what the Administration's position is, and that I think that statement by the Solicitor General -- who is far, far, far more knowledgeable on this than you or I -- is correct in that statement.
                •  Since I do know that (2+ / 0-)
                  Recommended by:
                  cheerio2, andgarden

                  Lochner "NOT about the Commerce Clause at all, but about the 14th Amendment and substantive due process", it is why I attirhbute the arugment to you as it is what you are arguing PROHIBITS this exercise of the Commerce Power.

                  Either you are disingenuous are stupid or both.

                  But I'll leave others to show patience with you,

                  I'm done with your nonsensical prevarications.

                  •  "Either you are disingenuous are stupid or both." (1+ / 0-)
                    Recommended by:
                    thegood thebad thedumb

                    That's not really called for and undermines your credibility. Doing so doesn't help your case for those who are genuinely interested in learning the nuances of the case and how those arguments are presented given the way the SG has performed thus far.

                    •  It it undermines my creidbility (0+ / 0-)

                      to you, I would argue that says something about you, not me.

                      Scold me for incivility if you feel so inclined. You would not be the first.

                      But it dos you no credit to state thaat in your eyes it undermines my credibility. That's a comment on your critical thinking, not mine.

                      FTR, I find disinegenousness to be extremely uncivil.

                      YMMV.

                      •  Resorting to name calling (1+ / 0-)
                        Recommended by:
                        thegood thebad thedumb

                        "It it undermines my creidbility to you, I would argue that says something about you, not me."

                        Resorting to name calling is a sign that one lacks the capacity to make and finish arguments using critical thinking and dances the edge of argumentum ad hominem which undermines one's credibility to argue legal, read logical, discourse which is exactly what you are attempting to do. How I view your lack of civility is of no consequence and does not directly relate to my previous statement.

                        •  No it is not a sign of any such thing (1+ / 0-)
                          Recommended by:
                          elwior

                          It is you opinion that that is so.

                          I submit for my own self that my 9 yerars of both ad hominme attacks and examples of making and finishing arguments demonstrates that in my case, your opinion is false.

                          You gave a civility lecture. Certainly your right.  The rest of it was unsupported and in my view, nonsense.

                          those of us who have blogged and received such lectures from VSP on Iraq, the Supreme Court, Bush, etc. are skeptical of  person who repeat those lectures.

                          I admit that you may not suffer from the failings of VSPs because of my previous experiences with such lectures.

                          I would not make a blanket statement such as you have. My critical thinking skill prevent me from doing that. I won't let my personal distaste for such lectures affect my observations on the matter.

                          •  Thanks! (0+ / 0-)

                            This reply shows more thought and consideration in it than your previous ones and for that I thank you. I still disagree with you, but I can respect those differences. One can only judge online what one sees as opposed to what may actually exist. I am curious what you mean by "VSP" though. I am unfamiliar with what you are alluding to with the acronym.

                            As a side note, I don't disagree that the mandate is Constitutional based on the arguments presented to the SC thus far, but it is unprecedented. Whether or not the mandate is "good" law is another matter however. I find it to be regressive for the vast numbers of underemployed, however there is a real danger of losing all of the good law within ACA if it is overturned for political reasons within the Supreme Court.

                          •  Not my first rodeo online (1+ / 0-)
                            Recommended by:
                            elwior

                            If I can take a moment to lecture YOU, it is foolhardy to judge people based on a few comments.

                            Perhaps you could have looked up my diary history.

                          •  Not my first rodeo either. (0+ / 0-)

                            I have read your diaries on KOS off and on since 2004, and came to KOS from THE NEWS BLOG after Steve Gilliard passed away. I only recently decided to participate in the comment sections of KOS actively since it appeared that the civility here had improved after Markos got fed up with the meta nonsense. I did not read your comment history or look in to how you behaved in the comment section. Based upon your diaries I had different expectations on how you would treat others within the comments and how you would carry yourself in the comments. I thought you would be more civil. I was mistaken.

                            Also, my goggle-fu must be weak, I still can't figure out what the devil you mean by "VSP". I'm sure it isn't vertical seismic profile. A clarification would be appreciated.

                            Thanks

                          •  Diminished in my view (0+ / 0-)

                            I am nobody in the blog religion. Short of supplicant, even, as I don't care other than to read, mostly.

                            But Armando, you didn't handle this well, in my view. You were grossly, unpleasantly dismissive of a pretty carefully  articulated critique of your argument. You come off like Howard Roark: The lone exponent of critical rationalism. Your own religion. You undermine your other, very welcome, insights.

                            Fuzz has a view with intellectual merit, I think. One I agree with legally so far, kind of, but one who seems much too comfortable with, for my tastes, in the political-realm, firmly defended, preposterous Lochnerian freedom/liberty of (employment) contract notions.  Like a Harp seal negotiating with an orca: since I must agree to your eating me for the good of my (children, wife, parents, etc.), how long, then, must I sustain you?  And of course clause 16(B) where I agree this isn't "Indentured Servitude," as defined, and that this and all parts of this agreement have been written by my attorney, and specifically as not contrary to public policy."

                            I'm a working man. Lochnerian days were so awesome for my class. I can't wait to go back.  I've been thinking of adding skills as a baker, or perhaps a sanitation worker.  Then I can work 24 hours a day.  TOTAL economic liberty!!!

                          •  I disagree (0+ / 0-)

                            I never care for civility arguments, they reveal an inability to address the merits imo.

                            But you do try to -- you write "pretty carefully  articulated critique of your argument." I think you are wrong about that.

                            If you do not understand why I disagree with that assessment, then I suggest you read my many posts on the subject.

                •  Why should the SCOTUS be allowed (1+ / 0-)
                  Recommended by:
                  ZedMont

                  to address this "question" in the first place?  Please show exactly where the Constitution prohibits Congress from regulating "inactivity" under the Commerce Clause.  There is none.  Does the fact that people don't buy insurance affect interstate commerce?  Yes.  Argument over.

                  There seems to be an assumption that all mandates are bad and people could not possibly want them.  Are you suggesting that if the American people, for some unforeseen reason in the future, actually WANT to pass a broccoli mandate, they will not be allowed to enact one?  Because the unelected the Supreme Court is allowed to say, "No, you can't pass this law even if you want it, because we just think it's absurd."  

                  That reeks of tyranny more so than any supposed "government mandate" which the people can vote to repeal.   Judicial review was not even explicitly stated in the Constitution.  Thomas Jefferson even disagreed with Marbury v Madison, saying that judicial review would lead to "placing us under the despotism of oligarchy."  While I acknowledge the SCOTUS power of judicial review, to prevent infringement on the constitutional authority of Congress and the liberty of the people to enact laws they deem appropriate, the SCOTUS must not legislate from the bench.  

                  •  That's certainly the administration's argument (0+ / 0-)
                    Does the fact that people don't buy insurance affect interstate commerce?  Yes.  Argument over.
                    That's what prompted the questions about the limits of the Commerce Clause.  If you accept that principle -- if my not doing something "affects" interstate commerce, then Congress can force me to do it -- what are the limits to Commerce Clause power?  

                    Almost everything we do, or don't do, "affects" interstate commerce. Every decision I make not to buy a product "affects" interstate commerce in at least a tangential way.  What's the principled constitutional line for when Congress can impose a mandate to do something?  If the SCOTUS rules in favor of the Administration, I think they are going to have to come up with an articulation of that line, because I don't think Justice Kennedy is going to conclude that there is no line.  I don't think Justice Kennedy is going to sign on to an opinion that says that as long as Congress makes a finding that not doing something "affects interstate commerce," then it can mandate it.

                    In other words, I think the principle has to be articulated in a narrower way than you just said, or it will be part of a dissent.  

                •  what i take away from that (1+ / 0-)
                  Recommended by:
                  Armando

                  is SG Verrilli is citing the same case that's in the diary.  if you bolded the phrases "it seems a little ironic" and kept the bolding of "in the same way," nobody would come away with the impression that there's a concession the ACA is a novel exercise of the commerce clause power.  It's a novel exercise of the Patient Protection and Affordable Care Act.

                  The study of law was certainly a strange discipline. -- Yukio Mishima

                  by Loge on Wed Apr 04, 2012 at 10:27:25 AM PDT

                  [ Parent ]

            •  The distinction between health care (6+ / 0-)

              and health insurance markets is an absurd exercise in formalism, akin to distinguishing between manufacturing and commerce.

              Health insurance is wholly contained within the health care market.

              "[R]ather high-minded, if not a bit self-referential"--The Washington Post.

              by Geekesque on Wed Apr 04, 2012 at 09:44:01 AM PDT

              [ Parent ]

              •  at the same time (0+ / 0-)

                there is a part of the healthcare market that is outside of the health insurance market.

                iow, the healthcare insurance market only covers a subset of all healthcare spending.

                I have insurance, but my kids also visit a doctor outside of the insurance coverage so i pay him myself.

                •  Point being that no one is outside the health care (4+ / 0-)
                  Recommended by:
                  Armando, elwior, ZedMont, Loge

                  market.  What the government is doing is regulating their behavior inside that market.

                  "[R]ather high-minded, if not a bit self-referential"--The Washington Post.

                  by Geekesque on Wed Apr 04, 2012 at 10:09:55 AM PDT

                  [ Parent ]

                  •  Umbrellas (0+ / 0-)

                    I viewed the market in such a way that Healtcare was the umbrella that the Health Insurance market was under not the other way around.
                    Your original argument, "The distinction between health care and health insurance markets is an absurd exercise in formalism, akin to distinguishing between manufacturing and commerce."
                    By conceding that no one is outside of health care does not change the relationship of those markets. One can be in the larger market, but not the subsection within a market. Regulating the market in such a way as to force people into a subsection of the market is wholly different from regulating just a sub-section of the market.
                    I'm also a little surprised there hasn't been more discussion on how ACA may affect clinics and practices that don't accept insurance. They are more common than many people realize.

                  •  I'm outside of it right now (0+ / 0-)

                    I may go into it tomorrow though. When i get there, regulate away.

              •  That's true only if you don't understand the (0+ / 0-)

                real and substantive differences between "having health insurance" and "accessing health care."

                Anybody who has had claims denied, prescriptions wholly or partially rejected, etc. by their insurance company, or who has utilized health care services without leveraging insurance they pay for or because they don't have insurance, is evidence that the health insurance market is very clearly and unquestionably a different market from the health care market.

                Arguments to the contrary are empirically unsupportable (i.e. they are contrary to actual, real facts) or, in the most absurd and insidious cases, intellectually bankrupt attempts at propaganda.

          •  Where exactly (0+ / 0-)

            is this interstate market and commercial activity being regulated? Are we now selling this insurance cross-border? Where?

            •  You're kidding right? (6+ / 0-)

              Not even coffeetalk is making that argument.

              I think you need a primer on the case law if you are making that argument.

              •  In other words (1+ / 0-)
                Recommended by:
                coffeetalk

                you can't answer the question. Just checking.

                Thanks, however, for another of your gratuitous insults. It's easy to see when you're on shaky ground (much of the time) as you have immediate recourse to insult, capital letters, and exclamation points.

                BTW, what you likely need is primer on basic logic. Just a suggestion. I'd be happy to recommend one.

                •  Can't? (2+ / 0-)
                  Recommended by:
                  andgarden, elwior

                  Try won't. It's not a question that has been asked since 1937.

                  It was not asked by this extreme radical Court.

                  Maybe coffetalk will straighten you out.

                  I got better use for my time.

                •  I see coffeetalk has recced you (1+ / 0-)
                  Recommended by:
                  elwior

                  Demonstrating even more his unseriousness in this discussion.

                  He adopts your argument that there is no effect on interstate commerce UNLESS there is a sale across state lines.

                  That should tell us all about the so called "good faith" of coffeetalk. It does not exist.
                   

                  •  More proof (0+ / 0-)

                    if any were needed. If you don't like an argument, it become "unserious" and the person making it lacks "good faith." This would be comic, if it weren't so sad.

                    •  You argue that absent (3+ / 0-)
                      Recommended by:
                      andgarden, elwior, Loge

                      sales across state lines, the Commerce power can not be invoked.

                      I suppose more genteel people would use other words, but the subtance would remain the same, it's not a serious position.

                      It's like asking if the Supreme Court has the power to review Congressional legislation to see if it comports with the Constitution. I'll give you a cite on that one. Marbury v. Madison.

                      •  It's good of you (0+ / 0-)

                        to make up our arguments for us—and so much easier on you.

                        I didn't argue that absent sales across state lines, the Commerce power can not be invoked. For certain kinds of goods, that may not hold. That's another discussion. But I would argue that such absence is at least a strong signal that there is a barrier to climb.

                        In the case of insurance, a product that isn't merely, by happenstance, sold within one state only, but which is positively blocked by law from being sold across state lines, I think there is a real problem in arguing that the commerce power can reach it—and then force it down your throat (hmm, much like broccoli).

                        What they might well have done, within the commerce power, was to allow interstate insurances. But the Democrats declined to use the commerce power to permit national insurance sales. [I certainly hope this wasn't due to pressure from the insurance companies. Oh my, no.]. That kind of national market would likely have done more to drive down costs and make insurance affordable than anything we can now expect.

                        Instead, they created a poor substitute with "exchanges," i.e. artificially creating a pseudo-market. A pseudo-market, of course, needs a pseudo-buyer—here enters the compulsory contract with a private company. All around, this is bad law, and IMO, one that (most unnecessarily) makes a hash out of constitutional boundaries. And it will also open the door to other sorts of regulation that I firmly expect you will one day find yourself railing against, but without a constitutional leg to stand on.

                  •  Check coffeetalk's comment history (0+ / 0-)

                    and you'll better understand where she/he is coming from.

                    "We the People of the United States...." -U.S. Constitution

                    by elwior on Wed Apr 04, 2012 at 01:53:35 PM PDT

                    [ Parent ]

          •  And you probably should check your facts. (3+ / 0-)
            Recommended by:
            eatbeans, VClib, m00finsan

            Your statement:

            No one recognized there is no precedent for this.
            From the transcript:
            GENERAL VERRILLI: Let me try to answer that question, Justice Kennedy, and get back to the question you asked me earlier. The -- the -- I do think one
            striking feature of the argument here that this is a
            novel exercise of power is that what Congress chose to
            do was to rely on market mechanisms and efficiency and a
            method that has more choice than would the traditional
            Medicare/Medicaid type model. And so, it seems a little
            ironic to suggest that that counts against it.  But beyond that, in the sense that it's novel, this provision is novel in the same way, or unprecedented in the same way, that the Sherman Act was unprecedented when the Court upheld it in the Northern Securities case; or the Packers and Stockyards Act was unprecedented when the Court upheld it, or the National Labor Relations Act was unprecedented when the Court upheld it in Jones & Laughlin; or the dairy price supports in Wrightwood Dairy and Rock Royal.
            The SG is saying EXACTLY what I said -- this is unprecedented in the sense that it's a new situation coming to the SCOTUS for decision, in exactly the same way that many other cases that come to the SCOTUS are unprecedented -- because they present a new issue that the SCOTUS has not yet decided.  That is the Administration's statement that it is "unprecedented" -- that it presents a situation that the SCOTUS has not addressed before.  What the SG is saying is yes, it is unprecedented like a lot of cases are unprecedented, but that does not mean it's unconstitutional.  EXACTLY what I said.  
            •  Nonsense (2+ / 0-)
              Recommended by:
              Loge, elwior

              Novel in the same way the Sherman Act is novel is not saying unprecedented.

              Is this what you are reduced to?

              I tried treating your comments with respect but if this is what you are reduced to, then there is nothing left to say.

              •  He used the word "unprecedented" (3+ / 0-)
                Recommended by:
                eatbeans, VClib, m00finsan

                He said this is "unprecedented" in the same way those other acts were "unprecedented."  He did not just use the word "novel."  He specifically said "unprecedented." You ignored that word.  

                I agree with the Solicitor General.  This act is unprecedented in the same way those other acts were, at the time, unprecedented.  

                And, frankly, I think the Solicitor General, at this point, knows far, far, far, far more about the subject than you or I do.  

                •  And I repeat to you (1+ / 0-)
                  Recommended by:
                  elwior

                  by your definition, every case is unprecedented.

                  Again, silliness and prevarications do not interest me.

                  I thought you were going to be forthright and make an honest argument - that an economic liberty interest cabins the Commerce power.

                  I see now you are going to pretend that your argument is otherwise.

                  I lose interest in you now.

                •  he is not saying this is a novel exercise (2+ / 0-)
                  Recommended by:
                  Armando, elwior

                  of the commerce clause power, and he quotes Jones & Laughlin.  He's saying the statute is novel application of the statute, and that the fact that it uses a market mechanism to accomplish its objective bolsters, not inhibits, the claim that there's a regulation of interstate commerce, here.  Your argument is the "you can't say bomb on an airplane" scene from Meet the Parents.

                  The study of law was certainly a strange discipline. -- Yukio Mishima

                  by Loge on Wed Apr 04, 2012 at 10:30:38 AM PDT

                  [ Parent ]

        •  point by point (1+ / 0-)
          Recommended by:
          Armando

          Paragraph one -- under inclusive.  An as applied challenge can exist when a law on its face may be unconstitutional but nobody has a particularized injury.  This is a John Roberts specialty, btw.

          Paragraph two through the rest -- begs the question.  You're assuming once more that there is commercial inactivity that existed temporally or logically prior to the regulation.  Whether or not others concede things they shouldn't concede is beside the point.  

          The study of law was certainly a strange discipline. -- Yukio Mishima

          by Loge on Wed Apr 04, 2012 at 10:23:38 AM PDT

          [ Parent ]

          •  My point was that the NLRB case does (0+ / 0-)

            not refute the opponents argument as the diarist thinks it does.  NLRB has nothing to do with "regulating inactivity."

            I completely understand that whether or not there was "commercial activity" is dependent on how you (1) define that market, and (2) define what it means to be in that market.  The SG continually defined "the market" as the market for health care, and defined what it means to be "in" that market as a person who will need it some day, if not right now, which means everyone.  In the alternative, he defined being in the market as a situation where one person's inactivity affected the market  for others.  The Opponents, on the other hand, defined the market as "health insurance" and use a more traditional notion of what it means to be in that market, meaning those people who buy it.  

            First, there's no constitutional precedent for how to define the "market" being affected.

            Second, with respect to what it means to be "in the market," the SG was arguing for a "novel" interpretation.  No SCOTUS Commerce Clause precedent, as far as I know, has held that if you will be engaging in commercial activity in the future, that means that you are engaging that commercial activity for purposes of the Commerce Clause. And I have seen no precedent for the notion that, because your inactivity (failure to purchase insurance) affected the market, you were in the market for purposes of Commerce Clause regulation.  The closest is  Wickard, which says that your activity (growing wheat), even if you don't mean it to be commercial, can affect the market, so it's in the market for Commerce Clause purposes.  Or, if you want to look at it from the Administration's position, they are arguing that, for Commerce Clause purposes, Congress can define a market so that it includes everyone in the country by default.  I have not seen that kind of broad definition of the market or commercial activity in any commerce clause case.

             As I pointed out, the SG admitted that this regulation was "novel" and "unprecedented" in the sense that asserts Commerce Clause power in a way that has not been done before, and he justified that on the basis of the uniqueness of the health care market. That is what prompted the questions about limits on the Commerce Clause power -- if Congress can define a market that, by default, includes the entire country, what is the constitutional principle that limits Congress' power under the Commerce Clause?  As I've said elsewhere, if I had to fault the SG (and I recognize I'm armchair quarterbacking here) I don't think he gave a compelling answer to that question.  His answer was, Congress can define this market to include everybody because this market is unique, prompting Justice Kennedy's question of why can't Congress just say another market is unique, too?  Where is the constitutional limit?  

            I have law partners, by the way, who believe that the Commerce Clause is essentially an anachronism, and that in today's world, essentially everybody and everything are part of interstate commerce, so, as a practical matter, there are no real limits on the Commerce Clause power.  

            I don't think Justice Kennedy is ready to accept that argument, however.  

            •  You don't address my argument (1+ / 0-)
              Recommended by:
              elwior

              Beyond saying "I disagree."

              To be clear, this post is , as you well know, a side bar to my arguments on this issue.

              But it is worth noting you do not address my argument at all.

              I took the specious, purely semantic and formalistic inactivity/acitvity argument and demonstrated that in Jones & Laughlin Steel, the Court upheld the exercise of the Commerce power by Congress  compelling employers to engage in a specific activity - negotiating with the chosen representatives of employees.

              Activity was mandated.

              You do not dispute that, or haven't, in a specific way.

              You rush to argue other points.

              I repeat, you still have not addressed the argument presented in this post.

              Whether you addressed arguments I presented in other posts I do not know.

            •  if it takes you this long (2+ / 0-)
              Recommended by:
              Armando, elwior

              to argue your point, there may not be a workable rule of decision in there.  And your argument is still circular.  

              There is no constitutional requirement to define the market in such and such way, and the court should in fact define it in a way that is most constitutional.  Or, here's a thought, define it as the Congress itself defines it, with all those 2700 pages and legislative record with findings of fact.  I don't see that bolding the word inactivity makes inactivity out of anything, here, and I don't think it matters as both activity and inactivity can be regulated where there's a substantial effect on interstate commerce.  Your argument to the contrary is that in the steel case, there's activity elsewhere, but that's not germane to the argument, and in any event, there's activity elsewhere in the PPACA context.

              I agree with you that it's an anachronism.  As a first principle matter, there's no inherent reason to believe it's an implied limitation on Congressional power as it's an enabling clause.  The interstate aspects have already been rendered fairly obsolete, but there does probably have to be a commercial aspect to things, or else the word is superfluous.  But this ain't Lopez.

              The study of law was certainly a strange discipline. -- Yukio Mishima

              by Loge on Wed Apr 04, 2012 at 10:56:48 AM PDT

              [ Parent ]

              •  I agree with you (0+ / 0-)

                that there is no constitutional requirement to define the market in any particular way.  That's what prompted Justice Kennedy's question to the SG, that if Congress is allowed to define this market this way because it's "unique," what's to prevent Congress from defining other markets broadly enough to include every person in this country and thus impose mandates in other areas?  

                I also agree with you that this is really a question about whether there are any real limits to Congress' Commerce Clause power, or whether the SCOTUS should give Congress complete leeway to do that.  

                If the SG was trying to get Kennedy's vote, however, I don't think he's ready to say that there are no real limits to Congress' commerce clause power, and that Congress has complete leeway to define a market so as to include every person in the country for purposes of regulating that market.  

                •  And you're saying (1+ / 0-)
                  Recommended by:
                  elwior

                  there is no applicable precedent regarding "whether there are any real limits to Congress' Commerce Clause power, or whether the SCOTUS should give Congress complete leeway to do that."

                  Really? Unprecedented!!

            •  Defining the market (3+ / 0-)
              Recommended by:
              Armando, Loge, ZedMont

              I'd agree with you that there's no constitutional precedent for defining the affected market.  I think that's because it's Congress's job to define what the market is.  

              And this attempted distinction between the health care market and the health insurance market is simply ridiculous.  No one buys health insurance for its own sake.  They buy health insurance so they will have access to health care.  Insurance companies provide no health care at all.  They're just middlemen who act as payors when their policyholders use health care services.  

              Finally, I really would love to meet this imaginary class of people who don't participate in the health care market.  I want to find out exactly how many Americans were born at home without the assistance of either a doctor or nurse, who never once visited a provider for any kind of medical service (including vaccinations), and who can guarantee that they will never, ever need medical care for the rest of their lives.  You could probably fit them all into a minivan.

              "Ça c'est une chanson que j'aurais vraiment aimé ne pas avoir écrite." -- Barbara

              by FogCityJohn on Wed Apr 04, 2012 at 11:33:57 AM PDT

              [ Parent ]

    •  Nor is the argument ripe (7+ / 0-)

      How do we know who has an actual harm until the mandate applies.

      After all, they MAY "enter the health care market" before 2015.

    •  overt like file an individual tax return? (3+ / 0-)
      Recommended by:
      Armando, Geekesque, FogCityJohn

      otherwise, the mandate doesn't actually have any teeth.  Which reminds me, there's not just not standing but no jurisdiction.  Anyway, I don't see how defenders of the law are under an obligation to accept the framing of the opponents'?  Congress has the power to regulate a commercial market that is interstate, as the health care is.  Congress therefore can mandate people to enter a market, especially one they're already in.  So, you can either argue that large numbers of uninsured people do not drive up costs, that is, there's no rational basis to believe Congress is solving the problem it means to solve, or you can argue there's a countervailing economic liberty interest at play.  

      The study of law was certainly a strange discipline. -- Yukio Mishima

      by Loge on Wed Apr 04, 2012 at 09:34:22 AM PDT

      [ Parent ]

    •  It's ironic to say Health Insurance is Interstate (0+ / 0-)

      As it is not legal for insurance companies to sell health insurance policies across state lines.  How can the federal government regulate these policies under the power of the federal government to regulate interstate commerce?  These policies can only be sold in-state, so by normal logic, the sale of health insurance policies is not interstate commerce.

      What am I missing?

      The most important way to protect the environment is not to have more than one child.

      by nextstep on Wed Apr 04, 2012 at 10:37:43 AM PDT

      [ Parent ]

      •  The reason why Health Insurance can't (2+ / 0-)
        Recommended by:
        Armando, Loge

        be sold across state lines is that Congress said so.

        There is absolutely no serious legal argument that the health insurance market is not interstate commerce for Constitutional purposes.

        It is so even in light of what you say in your comment. Why? A large number of insurance plans (perhaps all) will pay claims incurred out of state, even over extended periods of time.

        Ok, so I read the polls.

        by andgarden on Wed Apr 04, 2012 at 10:40:25 AM PDT

        [ Parent ]

        •  And if they could be sold across state lines, (0+ / 0-)

          there'd be a race to the bottom.  It'd all be Delaware and South Dakota, like credit cards.

          The study of law was certainly a strange discipline. -- Yukio Mishima

          by Loge on Wed Apr 04, 2012 at 02:29:12 PM PDT

          [ Parent ]

  •  I've learned a whole lot (7+ / 0-)

    about the Commerce Clause and Lochner and the regulatory state over the past couple weeks.  Thanks to you and Adam B and Geekesque for writing so much explaining the state of the law today.  I've become something of a Wikipedia legal nerd as of late.

    I maintain a shred of hope and optimism that Kennedy will come to his senses but Citizens United showed me that practical impact and precedent is of little importance to The Five.

  •  We can only hope that Kennedy knows this.... (2+ / 0-)
    Recommended by:
    Magster, Matt Z

    Care to forward your diary to his clerks? :-)

    •  Obama could use of his minions... (0+ / 0-)

      to assert this (or even do it himself). While the court should not pay attention to it in consideration of its decision, that would be naive.

      No snowflake in an avalanche ever feels responsible.

      by Magster on Wed Apr 04, 2012 at 10:29:29 AM PDT

      [ Parent ]

  •  Is there any historical precedent... (3+ / 0-)
    Recommended by:
    Geekesque, Eric Nelson, Matt Z

    ...for the unabashedly partisan behavior of Scalia, Thomas and Alito?

    Just wondering.

  •  Ianal, and I sometimes find it difficult to (3+ / 0-)
    Recommended by:
    Geekesque, Catte Nappe, Eric Nelson

    follow this debate, but I try awfully hard. Although I would never grace my monitor with pixels from RedState, I wonder how the lawyers on that site interpret this case and what precedents they use to justify their conclusions. Is there any common ground with the lawyers here?

  •  That is a good example. There is (5+ / 0-)

    another, Jacobsen v Massachusetts, that is possibly even better.

    In 1905 the Supreme Court ruled in the case   Jacobson v Massachusetts that a person could be fined or imprisoned for failing to have a smallpox vaccination that was required by state law. If you can be fined for failing to agree to a potentially painful vaccination, surely you can be fined for failing to buy health insurance.
    Yes, it involved a state versus Federal law. But the whole challenge to the law was about the right not to act and the activity/inactivity argument was not even questioned by the Court as a basis for overturning the law.

    I have always viewed this "inactivity" argument as Constitutional misdirection, and like you thought it would get little traction. Let's hope we are not wrong because a box once owned by Pandora would certainly be opened up otherwise.

    Further, affiant sayeth not.

    by Gary Norton on Wed Apr 04, 2012 at 09:31:22 AM PDT

    •  Definitely (2+ / 0-)
      Recommended by:
      Geekesque, Gary Norton

      I just ran across the point in the case I discussed.

    •  Isn't this (1+ / 0-)
      Recommended by:
      Gary Norton
      Yes, it involved a state versus Federal law.
      a huge distinction? One that keeps it from be precedent in the ACA case?
      •  yes and no, (3+ / 0-)
        Recommended by:
        Armando, Gary Norton, Geekesque

        it's not a precedent that there's an authorization, but it is precedent from even the Lochner era that an economic liberty interest is not unlimited where there's a substantial detrimental effect on public health from exercising it to forgo medical care.  It's easily applicable to forgoing paying for medical care.   But it's not the burden of the defenders of the law to show it's constitutional, and that test is met by simply showing that there's a rational relationship to an interstate commercial problem.  So, the only arguments that matter are the countervailing arguments that even if the commerce clause test is met, something else prohibits the law from going into effect.  What Jacobson shows is that not even Rufus Peckham would strike the individual mandate if he had to rely on post-1937 commerce clause jurisprudence.

        The study of law was certainly a strange discipline. -- Yukio Mishima

        by Loge on Wed Apr 04, 2012 at 10:38:17 AM PDT

        [ Parent ]

      •  Not for purposes of the "inactivity" (3+ / 0-)
        Recommended by:
        Armando, Geekesque, Loge

        argument, which is all the challengers are arguing. They do not say health insurance and health care are not interstate commerce. They say that this is the first time Congress has regulated "inactivity." Well, there are other examples of Federal "inactivity" that have been regulated but this case involving a state law is so close. You can be jailed for not having a vaccination.

        The challengers' argument is also tenuous because they concede that Congress could require that insurance be purchased at the emergency room. This is where the baloney was sliced really thin, and reflects a complete misunderstanding of how insurance works.

        Further, affiant sayeth not.

        by Gary Norton on Wed Apr 04, 2012 at 11:01:00 AM PDT

        [ Parent ]

    •  I see 2 differences. (0+ / 0-)

      1.  Vaccinations are free and a public health concern.  Not being vaccinated could directly lead to you causing the death of others.  Not purchasing insurance does not directly cause negative health consequences for others.

      2.  It compels you to receive health care.  It does not compel you to purchase a product in order to receive health care.

  •  Did anyone in their briefs at least.... (2+ / 0-)
    Recommended by:
    Armando, Eric Nelson

    ... argue that THE case that allowed the new deal to go forward is the one that regulated inactivity, and "mandated" negotiations?

    Aren't solicitor generals supposed to know supreme court cases, especially the famous ones, backwards and forwards?

    No snowflake in an avalanche ever feels responsible.

    by Magster on Wed Apr 04, 2012 at 09:40:33 AM PDT

  •  Penalty? (2+ / 0-)
    Recommended by:
    jdsnebraska, Fury

    " ACA imposes a $500 "shared responsibility" penalty on non-exempt persons who do not secure heath insurance."

    Last I looked, the Obama administration had decided this is not a penalty, but a tax.

  •  Now you've figured out (6+ / 0-)

    why Scalia was so insistent that the health insurance market, not healthcare market, was being regulated.

    It shouldn't matter, of course. One's decision to enter into commerce--or not--has absolutely no bearing on the Necessary and Proper analysis. At least, it didn't used to!

    Ok, so I read the polls.

    by andgarden on Wed Apr 04, 2012 at 10:06:13 AM PDT

    •  Was that telegraphing his intention, or what? (0+ / 0-)

      What'd the devil give you for your soul, Tommy? He taught me to play this here guitar REAL good. Oh son, for that you traded your everlastin' soul? Well, I wuddn' usin' it.

      by ZedMont on Wed Apr 04, 2012 at 02:41:08 PM PDT

      [ Parent ]

  •  It amazes me that some around here (2+ / 0-)
    Recommended by:
    eatbeans, jdsnebraska

    callously dismiss the arguments made by the Administration as if someone who posts here, in their sort of weekend reading on the subject, have a far superior grasp of the issues than, say, the Solicitor General does.  

    First, the Solicitor General is one of the leading constitutional authorities in this country.  That's how he got to be Solicitor General.  

    Second, some of the best constitutional scholars in this country -- on both sides of this, frankly -- have been working night and day, for months, analyzing prior court decisions, among other things, among other things. for the best possible arguments to put before the Supreme Court.  And they have come up with what the best constitutional minds in the country think are the most persuasive arguments -- based, among other things, on the prior SCOTUS cases - to put before the Court.  

    Despite that, every once in a while someone posts a diary that says, "AHA!  I found it!  It's THE case! the one that proves without question that we're right!"  as if all the best constitutional minds in the country, working night and day for months, just "missed it."  

    You know, I think that if someone thinks they've come up with "THE case," the one that unquestionably "proves" the administration's case -- in this case, the argument that NLRB v. Jones and Laughlin Steel "proves" that "Congress can regulate inactivity," they might want to take note of the fact that, in the few times it was mentioned in the Administration's brief,, or in oral argument,  it was never cited for the proposition that the person here is "sure" it stands for -- in this case, NLRB v. Jones & Laughlin Steel was never cited for the principle that "Congress can regulate inactivity."  Perhaps that is a hint that the best constitutional scholars in the country don't see that case the same way you do.  Maybe -- just maybe -- the best constitutional scholars in the country don't interpret it the way you do.  

    Just a thought.  

    •  Here's a thought (4+ / 0-)
      Recommended by:
      andgarden, Magster, ferg, FogCityJohn

      Think for yourself.

      Be honest about what you are arguing.

      Stop arguing from authority.

      It is telling that you never actually address the points made in this post about Jones & Laughlin Steel.

      Never even try to.

      Try and see if you can.

      Just a thought.

      •  I did address NLRB in an extensive post above, (0+ / 0-)

        as did some others.  

        Which you simply answer with perjoratives.  

        •  No you did not (1+ / 0-)
          Recommended by:
          FogCityJohn

          I replied to your comment.

          The fact is Congress, through the Commerce power, in the NLRA mandated that covered employers negotiate with chosen representative of employees.

          To wit, the Commerce power empowered Congress to require ACTIVITY by employers.

          I think the UNPRECEDENTED activity/inactivity argument is specious. But to the degree it is not, it must distinguish NLRB v. Jones & LAughlin.

          You have not even made an attempt to do so.

    •  The SG was reported as having been .... (2+ / 0-)
      Recommended by:
      Armando, Geekesque

      ... tentative and unprepared. Sometimes Kobe Bryant goes 3-20 and the Lakers lose because of it even though he's one of the best to ever play the game of basketball.

      The SG was unprepared for the conservative bloc "going there" as far as eviscerating 75 years of precedent, and by so doing helped enable the conservative bloc to do just that.

      No snowflake in an avalanche ever feels responsible.

      by Magster on Wed Apr 04, 2012 at 10:34:58 AM PDT

      [ Parent ]

      •  In other words, it was a bad day to have a bad day (1+ / 0-)
        Recommended by:
        Geekesque

        No snowflake in an avalanche ever feels responsible.

        by Magster on Wed Apr 04, 2012 at 10:45:39 AM PDT

        [ Parent ]

      •  He was not. That was simply because (1+ / 0-)
        Recommended by:
        Seneca Doane

        he had to clear his throat and drink some water at the beginning.  Purely, purely a style criticism.  

        On substance, I assure you that (1) he, himself, is one of the best constitutional lawyers in the country; and (2) on a case of this magnitude, he spent months and months and months preparing with others who were also some of the best constitutional minds in the country.  

        I cannot imagine that the SG was "not prepared" for the questions about the limits on the Commerce Clause power.  That would have been complete and utter malpractice.  The questions came straight from the briefs on the other side.  Only a lawyer who is in a coma would not have known to expect questions based on the briefs for the other side.  

    •  Just as a spectator (2+ / 0-)
      Recommended by:
      Geekesque, greenbird

      who doesn't actually know anything in particular, I always enjoy your posts on legal matters, and appreciate this differing point of view.  So keep on keeping on, as far as I'm concerned.

    •  I think most have merely helped others understand (0+ / 0-)

      I don't think (at least I have not) most suggest here is the case. Con Law is full of known cases. All of them for a variety of reasons are favorable to the government.

      I would also disagree that you would never find a better advocate than the Solicitor General.  These are very broad constitutional law topics. Ones that attorneys who don't even care about Con Law much know.

      If you give a good attorney enough time they could make as strong an argument as the SG. And a good Litigator could have performed far better than a performance that made him look unprepared. At the end of the day Oral Arguments shouldn't matter. But it is a bit disturbing that he could not answer two questions (silly or not) that he knew would come up.

      I will grant he has an impressive resume. But in real law, without knowing practicing with or for a person, I don't think you can gauge their competence. There is a lawyer who has a JD graduated from Harvard, was on the Law Review with Obama, and he is from what I can tell primarily a CLE presenter.

      Just like ppl billing 300/hr does not mean they are worth it. I have seen Legal Aide attorneys make Big Firms like Jones Day look foolish, and I've seen the opposite, with volunteers having no clue what they're doing. Honestly when you work at a big firm, it is a bit scary when you see how little the Rainmaking partners do/know.

      To not be a hypocrite I am only basing my opinion on the oral argument, and admit it could have been an off day, I simply do not know enough about him. But if I had to choose given what I saw, I'd rather have many argue on my behalf if it related to health care, than Donald B. Verrilli.

      Yet he still might win entirely. That's law for you.

      . . .

    •  Armando was not saying he is the smartest guy in (0+ / 0-)

      the room but you seem to be. Rudeness is rarely becoming on anyone.

      He was simply pointing out why the activity/inactivity is without serious merit, citing a case he thinks well proves the point. By the way, do you agree or disagree with his point?

      Further, affiant sayeth not.

      by Gary Norton on Wed Apr 04, 2012 at 12:20:31 PM PDT

      [ Parent ]

    •  Because the SG, expert that he is, (1+ / 0-)
      Recommended by:
      eglantine

      does not accept the premise that inactivity is being regulated.  If he did accept that premise, scholar and tactitian at he is, he'd inadvertently hand Kennedy the ammunition to strike the law without seeming to overturn he New Deal.  The activity/inactivity distinction remains one that is not a constitutional difference and more importantly, isn't implicated by the facts of this case.

      The study of law was certainly a strange discipline. -- Yukio Mishima

      by Loge on Wed Apr 04, 2012 at 02:33:20 PM PDT

      [ Parent ]

  •  I think that its making the public scrutinize law (3+ / 0-)
    Recommended by:
    Armando, Kinak, Eric Nelson

    Constitutional law has a long and interesting past (embarrassing at times). If nothing else, this case is at least making the public look at and independently think (right or wrong, or implanted astro-turf) in a way they have not since Bush v. Gore.

  •  So you're saying ... (0+ / 0-)

    that citing this case and 'protection or advancement' of commerce, Congress could write laws outlawing wind and solar energy and mandating use of fossil fuels in perpetuity?

    Congress shall make no law abridging the right of the people peaceably to assemble.

    by edg on Wed Apr 04, 2012 at 11:04:27 AM PDT

    •  If such laws were rational (3+ / 0-)
      Recommended by:
      Geekesque, andgarden, eglantine

      Congress already mandates ethanol in gasoline.

      •  And just to clarify to edg (0+ / 0-)

        "Rational" means that any reasonable person could believe that such laws could have some use. One rational basis would be to improve the economic status of the oil and gas industry.

        Ok, so I read the polls.

        by andgarden on Wed Apr 04, 2012 at 11:08:10 AM PDT

        [ Parent ]

    •  Of course it can (3+ / 0-)
      Recommended by:
      Armando, Geekesque, Loge

      It can do so for the same reason it can ban pot or untaxed consumption of home-grown wheat.

      Ok, so I read the polls.

      by andgarden on Wed Apr 04, 2012 at 11:06:23 AM PDT

      [ Parent ]

    •  If Congress has the power to ban marijuana (2+ / 0-)
      Recommended by:
      andgarden, Loge

      it certainly has the power to ban certain kinds of energy production.

      "[R]ather high-minded, if not a bit self-referential"--The Washington Post.

      by Geekesque on Wed Apr 04, 2012 at 11:06:56 AM PDT

      [ Parent ]

    •  Congress Could (2+ / 0-)
      Recommended by:
      ZedMont, eglantine

      1.) Based on the aggregation of all those using fossil fuels (Wickard) would give them the power under the Commerce Clause, it would only be struck down if it had no rational relationship to its purpose.

      2.) The SCOTUS is NOT supposed to make scientific findings, they defer to Congress, so if Congress had scientific findings it would be presumed rational.  Jacobsen (Vaccination Case), Buck v Bell (terrible case one of SCOTUS worst re forced sterilization).

      3.) Congress Could tax wind and solar energy so much that you would have to use fossil fuels.  

      4.) Congress Could do so as part of something else and it would be necessary and proper.

      5.) If you said I am an individual you are discriminating against me. Doesn't matter. Unless the discrimination is a protected class (Race being the big one). Theoretically, if I owned a restaurant I could refuse to serve people with Red Hair if I wanted (they are not a protected class).

      I can think of plenty of law or ways to fight, but if it was any other issue (it makes it hard because it is political also) I would prefer to be on Congress' side.

  •  In an even more recent ruling by Reagan appointee (3+ / 0-)
    Recommended by:
    Gary Norton, hazzcon, eglantine

    .. If inactivity is used to strike doen ACA they'll be amending the constitution by fiat
    consortiumnews
    And they're ignoring the Founders

     For instance, in a Nov. 8, 2011, ruling, U.S. Appeals Court senior judge Laurence Silberman, an appointee of Ronald Reagan, wrote a legal opinion affirming the law’s constitutionality.
    The inactivity argument sure sounds like a re-write
    “In other words, to ‘regulate’ can mean to require action, and nothing in the definition appears to limit that power only to those already active in relation to an interstate market. Nor was the term ‘commerce’ limited to only existing commerce. There is therefore no textual support for appellants’ argument” that mandating the purchase of health insurance is unconstitutional. - emphasis added
    So the court spent time making up goofy what-ifs like broccoli gym memberships, cell phones and other silly items, the Republican partisans were signaling that they were not only going to second-guess Congress and the President but the Framers as well:
    In such cases, the Right also has argued that these issues should be left up to the elected branches of government and it is not up to the Supreme Court to intuit new “rights” in the Constitution. Except it appears when the process goes against the Right. Then, it’s up to the Court to invent new “rights” and declare duly enacted legislation to be in violation of those “rights.”
    consorrtiumnesw

    I know this District of Columbia Appeals ruling is not as convincing/important as a supreme court ruling cited in this diary/post but thought it would show a more modern context.

  •  Amen, this should be easy (3+ / 0-)
    Recommended by:
    Magster, Gary Norton, Eric Nelson

    With some history/other cases less mentioned. I had a thread that talked specifically about the Commerce Clause Cases that not surprisingly were in the 11th Circuit Opinion and Briefs. ACA-SCOTUS-HISTORIC-OVERVIEW-OF-COMMERCE-POWER-AND-FALLOUT

    Still even without those, there is much precedent to simply overturn the 11th Circuit.

    I.    The Federal Gov’t has been allowed to intercede in the Contracts of two private parties regardless of the 14th Amendment

    “The question is no longer merely that of one party to a k as against another, but of the use of reasonable means to safeguard the economic strcture upon which the good of all depends” Home Building & Loan Ass’n v. Blaisdell (1934)
    In Blaisdell, it  was a law impairing K’s (why there is a K Clause) but the holding still was that the clause is not absolute and that it’s clearly so reasonable as to be within the legislative competency. Does not violate the K clause.

    II. The federal Government has The means of  enacting and doing things not enumerated in Article 1 of Section 8 of the Constitution, SCOTUS has held for almost Two Centuries.


    The view adopted is that if Congress had the power to do something or pursue an end they also had the power to choose the means to achieve this end. (if creating a bank is a means to regulating commerce, that’s fine) McCulloch v. Maryland-

    In McCulloch there was nothing in the Constitution allowing Congress to create a national bank. Maryland tried to tax when created. Big Q was whether Congress has power to create a bank. Making a bank is not in Article 1 section 8 of the enumerated powers.  So Maryland said since they shouldn’t be allowed to have it we can tax them because the bank has no protection.

    Answer by CJ Marshall, yes. Even if not in text. Why?
    -> the framers couldn’t have intended to list all the powers

    “only the great outline should be marked”
    Jefferson and rational- If you have power to establish roads, you need the power to clear trees
    Decision- the grants to Congress, the enumerations were to be construed in a liberal and expansive way, Congress has great latitude in deciding what means are necessary to carry out enumerated powers.
       
    Since Aggregation is allowed in Wickard, and the 11th Circuit Decision makes clear that Congress is allowed to regulate health care how they struck down is rediculous.

    Idea of it as a Tax

    Congress has the “Power to lay and collect Taxes, Duties, Imposts and Excises to pay the Debts and provide for thecommon Defense and general Welfare of the United States”

    The Truth is Every tax regulates behavior. Even Income tax, considered, is a disincentive to work or not.

    The SCOTUS has frequently upheld laws compelling action based on tax.
    United States v. Kahriger- Like Narcotics case(s). If you’re a bookie you have to register. Not invalid because the tax is negligible.
    If you say something is not commerce it is not a tax, they could conceivably try to say that but it is in reality ridiculous and wrong.

    I could go on and on almost every strand of Con Law could be considered here. Even say Congress can discriminate against ppl without insurance, they are not a protected class "race, gender, age (most recent" so they are subject to no strict scrutiny of the law, but the lowest level, ie rational relationship.

  •  Doesn't US v. Lopez partially overrule this? (0+ / 0-)

    If anything, I think that 5-4 decision rather nicely encapsulates the kind of decision we're probably going to see on the PPACA, while addressing (perhaps not to your satisfaction) how tenuous a connect a law can have to interstate commerce.

    •  No (0+ / 0-)

      Lopez is about non economic activity.

      •  It would have been if (0+ / 0-)

        the statute said “no possession of a gun in a school zone, any part of which has been shipped in interstate commerce” They just got lay and left that part out . . . that isn't just made up the Appeals court indicated it likely would have been constitutional if that was the wording.

      •  The government's argument in Lopez, however... (0+ / 0-)

        ...was that virtually any activity could be economic activity (by in any way tangentially effecting interstate commerce)

        ...or do you think the court will reverse the PPACA without reaching the Interstate Commerce argument?

        •  Don't know if you are asking me, if u are (1+ / 0-)
          Recommended by:
          eglantine

          This is not what I think they should do. It should be upheld 8-1. What people thought, but we probably underestimated the politicization of the SCOTUS. Everyone like Armando's diaries are right.

          First- As to the tax/jurisdictional issue- I think it will be 9-0 too late in the game to punt (as they should've).

          Otherwise, I actually don't think it's time to waive the white flag. I'd say either 6 -3 in favor of upholding its constitutionality. Roberts, along with Kennedy who will sign on to the very narrow plurality opinion, will find that the unique nature of the health care market and the widespread direct effect that non-participation has on costs necessitates this somewhat radical exercise of Congressional power…but only for this market and only to the narrow ends that the law defines. Justices Ginsburg, Breyer, Sotomayor, and Kagan will all concur with the result but write separately to say what most on here who think it should be 8-1 think.

          Or Kennedy/Roberts author an opinion with an even more fragmented plurality saying it is unprecedented and because of that they are required to weigh in and will claim it is something that is so unique that it is plenary as there is nothing instructive to support and offer a way that it could be accomplished, but will not. Scalia/Alito Concur, Thomas Concur in part and dissent in part for some really insane reason. Ginsburg, Breyer, Sotomayor, and Kagan write something like Breyer's dissent in Lopez.

          What makes it so hard to predict is that historically/tradition dictates one thing, but signs seem to point elsewhere, so every con law scholar's head is spinning. Because of the latter it would not shock me if they had the hubris to make a decision seeming to usher in a new era of Lochner. Anyone who says they are not completely guessing at this point is not being honest (except as to what they should rule).

  •  As was Bush v Gore, 2000: (1+ / 0-)
    Recommended by:
    Eric Nelson
    To rule otherwise would be a radical, extreme and extraordinary decision by the current Supreme Court.
    There are members of the Court who think nothing of "one off" decisions, regardless of the turmoil caused in the national legal system.  These are truly extreme radicals pursuing an ideological agenda at the expense of the consistency of the law.  You'll find them attending 'conservative' conventions year after year and their relatives working for 'conservative' causes for hundreds of thousands of dollars.

    Conservative is in quotes because "conservative" means to preserve things the way they are.  Instead, these are judicial activists of the worst kind -- radicals who do not care what damage they cause in pursuit of their agenda.

    What a Police State Looks Like: "On one side: soft human flesh, unprotected human skulls, cardboard signs, slogans they chant, armed with belief in 1st Amendment rights. On the other: helmets, body armor, guns, batons, chemical weapons." -- JanetRhodes

    by YucatanMan on Wed Apr 04, 2012 at 12:58:45 PM PDT

    •  Story you never hear about O'Connor (2+ / 0-)
      Recommended by:
      YucatanMan, eglantine

      Was she was at an election party. It got called for Gore. She said "now I am going to have to serve at least 4 more years" or something like that.

      Guess who was the fifth vote in Bush v. Gore?

      The Court is so different than the Pre-Burger Court of the Brethren for example (it seems).

    •  Here's one Story of that blatant partisanship (2+ / 0-)
      Recommended by:
      YucatanMan, eglantine
      Supreme Court Justice Sandra Day O'Connor and her husband, John, a Washington lawyer, have long been comfortable on the cocktail and charity-ball circuit. So at an election-night party on Nov. 7, surrounded for the most part by friends and familiar acquaintances, she let her guard drop for a moment when she heard the first critical returns shortly before 8 p.m. Sitting in her hostess's den, staring at a small black-and-white television set, she visibly started when CBS anchor Dan Rather called Florida for Al Gore. "This is terrible," she exclaimed. She explained to another partygoer that Gore's reported victory in Florida meant that the election was "over," since Gore had already carried two other swing states, Michigan and Illinois.

      Moments later, with an air of obvious disgust, she rose to get a plate of food, leaving it to her husband to explain her somewhat uncharacteristic outburst. John O'Connor said his wife was upset because they wanted to retire to Arizona, and a Gore win meant they'd have to wait another four years. O'Connor, the former Republican majority leader of the Arizona State Senate and a 1981 Ronald Reagan appointee, did not want a Democrat to name her successor. Two witnesses described this extraordinary scene to NEWSWEEK. Responding through a spokesman at the high court, O'Connor had no comment.

      Link
  •  Interesting how Romneycare was upheld with ease (0+ / 0-)

    despite every legal argument, but so many questions here. Yes I understand Federalism. But I can switch two words from Fountas v. Dormitzer and it would still be accurate (the main challenge to Romney's Care in Mass.)

    The case was ultimately dismissed on procedural grounds, the judge clearly explained that Mitt Romney’s health care did not violate Federal or State constitutional principle because a state can regulate health care on the basis of a state’s police power. The judge writing in Fountas v. Dormitzer explains the legal concept of police power.

    Change it to "can regulate health care on the basis of . . . the commerce power."  Which seems to be conceded by all sides they just don't like how.  I do not think anyone could ever make the argument that the Health Care industry/Aggregate of individual decisions does not affect interstate commerce.

  •  Strategic blunder to put the ball in play... (0+ / 0-)

    with a conservative Supreme Court.  Of course this could have been avoided and the pressure kept on for real reform.  Instead the initiative was squandered and given to conservatives.

    11th Dimensional Chess?  Dem leadership has shown an inability to master tic-tac-toe.

    "Money is like manure. You have to spread it around or it smells." J. Paul Getty

    by Celtic Pugilist on Wed Apr 04, 2012 at 01:52:47 PM PDT

  •  If I Don't Take Out A Mortgage, I Pay (0+ / 0-)

    How is ACA any different?

Subscribe or Donate to support Daily Kos.

Click here for the mobile view of the site