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[W]hen you are changing the relation of the individual to the government in ... a unique way, do you not have a heavy burden of justification to show authorization under the Constitution?” - Justice Anthony Kennedy during oral arguments regarding the Affordable Care Act
One of the most "fascinating" aspects of the arguments presented before the Supreme Court regarding the Affordable Care Act and the individual mandate and penalty (the shared responsibility penalty), is how the Roberts Court and its members are contemplating, in truly ad hoc fashion, the transformation of the standards by which the constitutionality of Congressional action is to be judged. Indeed, the reason many of us believe the case is easily decided is not only because of the clear line of precedents from 1937 to the present, but by decisions issued by the Roberts Court and other decisions joined by the current members of the conservative bloc of the Roberts Court. I've discussed them before but it is worth revisiting.

In Gonzales v. Raich, decided just 7 years ago, the court, in a decision joined by Justice Kennedy and in which Justice Scalia issued a concurring opinion, the Court held that:

The question before us, however, is not whether it is wise to enforce the statute in these circumstances; rather, it is whether Congress’ power to regulate interstate markets for medicinal substances encompasses the portions of those markets that are supplied with drugs produced and consumed locally. Well-settled law controls our answer. The CSA is a valid exercise of federal power, even as applied to the troubling facts of this case. We accordingly vacate the judgment of the Court of Appeals. [Emphasis supplied.]
Justice Stevens, writing for the Court, was right. Wickard v Fillburn was fully on point:
Wickard [...] establishes that Congress can regulate purely intrastate activity that is not itself “commercial,” in that it is not produced for sale, if it concludes that failure to regulate that class of activity would undercut the regulation of the interstate market in that commodity. [Emphasis supplied.]
Repeating the key words: "Congress can regulate purely intrastate activity that is not itself "commercial." In layman's terms, Congress can regulate what you do even if you are not engaged in commerce. Justice Kennedy fully joined the Raich opinion. As for Justice Scalia, he joined the result but wrote separately. But his words echo the rule stated above:
Congress’s regulatory authority over intrastate activities that are not themselves part of interstate commerce (including activities that have a substantial effect on interstate commerce) derives from the Necessary and Proper Clause. Id., at 78; Katzenbach v. McClung, 379 U.S. 294, 301—302 (1964); United States v. Wrightwood Dairy Co., 315 U.S. 110, 119 (1942); Shreveport Rate Cases, 234 U.S. 342, 353 (1914); United States v. E. C. Knight Co., 156 U.S. 1, 39—40 (1895) (Harlan, J., dissenting).1 And the category of “activities that substantially affect interstate commerce,” Lopez, supra, at 559, is incomplete because the authority to enact laws necessary and proper for the regulation of interstate commerce is not limited to laws governing intrastate activities that substantially affect interstate commerce. Where necessary to make a regulation of interstate commerce effective, Congress may regulate even those intrastate activities that do not themselves substantially affect interstate commerce. [Emphasis supplied.]
Thus, Justice Scalia's conception of Congressional power is even more expansive than that stated in the majority Raich opinion. He says  "Congress may regulate even those intrastate activities that do not themselves substantially affect interstate commerce." The activities regulated need not even substantially affect interstate commerce for Congress to act according to Justice Scalia, because of the power afforded to Congress under the Necessary and Proper Clause. Justice Scalia explained:
Congress’s authority to enact laws necessary and proper for the regulation of interstate commerce is not limited to laws directed against economic activities that have a substantial effect on interstate commerce. Though the conduct in Lopez was not economic, the Court nevertheless recognized that it could be regulated as “an essential part of a larger regulation of economic activity, in which the regulatory scheme could be undercut unless the intrastate activity were regulated.” 514 U.S., at 561. This statement referred to those cases permitting the regulation of intrastate activities “which in a substantial way interfere with or obstruct the exercise of the granted power.” Wrightwood Dairy Co., 315 U.S., at 119; see also United States v. Darby, 312 U.S. 100, 118—119 (1941); Shreveport Rate Cases, 234 U.S., at 353. As the Court put it in Wrightwood Dairy, where Congress has the authority to enact a regulation of interstate commerce, “it possesses every power needed to make that regulation effective.” 315 U.S., at 118—119. [Emphasis supplied.]
According to Justice Scalia, at least in Raich, "where Congress has the authority to enact a regulation of interstate commerce, it possesses every power needed to make that regulation effective." (My emphasis.) Webster's defines the word "every" as follows:
... being each individual or part of a group without exception.
 

In other words, "every power" means, um, every power. My view is that Justice Scalia overstates the case. In McCulloch v. Maryland, Chief Justice Marshall explained:

If the end be legitimate, and within the scope of the Constitution, all the means which are appropriate, which are plainly adapted to that end, and which are not prohibited, may constitutionally be employed to carry it into effect. [...]

If a certain means to carry into effect of any of the powers expressly given by the Constitution to the Government of the Union be an appropriate measure, not prohibited by the Constitution, the degree of its necessity is a question of legislative discretion, not of judicial cognizance. [Emphasis supplied.]

There is the limit—prohibited by the Constitution. In U.S. v. Carolene Products, the Court explained:
The power to regulate commerce is the power "to prescribe the rule by which commerce is to be governed," Gibbons v. Ogden, 9 Wheat. 1, 196, and extends to the prohibition of shipments in such commerce. Reid v. Colorado, 187 U.S. 137; Lottery Case, 188 U.S. 321; United States v. Delaware & Hudson Co., 213 U.S. 366; Hope v. United States, 227 U.S. 308; Clark Distilling Co. v. Western Maryland R. Co., 242 U.S. 311; United States v. Hill, 248 U.S. 420; McCormick & Co. v. Brown, 286 U.S. 131. The power "is complete in itself, may be exercised to its utmost extent, and acknowledges no limitations other than are prescribed by the Constitution." Gibbons v. Ogden, supra, 196.[Emphasis supplied.]
To repeat, "the power is complete in itself, may be exercised to its utmost extent, and acknowledges no limitations other than are prescribed by the Constitution.." (My emphasis.) This is the applicable legal rule and neither Justices Scalia nor Justice Kennedy ever questioned it. At least, not until now. By contrast, Justice Thomas has consistently questioned this constitutional rule. In his dissent in Raich, Justice Thomas wrote:
Even the majority does not argue that respondents’ conduct is itself “Commerce among the several States.” Art. I, §8, cl. 3. Ante, at 19. Monson and Raich neither buy nor sell the marijuana that they consume. They cultivate their cannabis entirely in the State of California–it never crosses state lines, much less as part of a commercial transaction. Certainly no evidence from the founding suggests that “commerce” included the mere possession of a good or some purely personal activity that did not involve trade or exchange for value. In the early days of the Republic, it would have been unthinkable that Congress could prohibit the local cultivation, possession, and consumption of marijuana.[...]

In Lopez, I argued that allowing Congress to regulate intrastate, noncommercial activity under the Commerce Clause would confer on Congress a general “police power” over the Nation. 514 U.S., at 584, 600 (concurring opinion). This is no less the case if Congress ties its power to the Necessary and Proper Clause rather than the Commerce Clause. When agents from the Drug Enforcement Administration raided Monson’s home, they seized six cannabis plants. If the Federal Government can regulate growing a half-dozen cannabis plants for personal consumption (not because it is interstate commerce, but because it is inextricably bound up with interstate commerce), then Congress’ Article I powers–as expanded by the Necessary and Proper Clause–have no meaningful limits. Whether Congress aims at the possession of drugs, guns, or any number of other items, it may continue to “appropria[te] state police powers under the guise of regulating commerce.” United States v. Morrison, 529 U.S. 598, 627 (2000) (Thomas, J., concurring). [Emphasis supplied.]

Under Justice Thomas' reading of the Commerce and Necessary and Proper power, one could plausibly argue that the individual mandate violates the Constitution. But one would need to gut decades of settled precedent to do so. Such a reading would put in jeopardy our modern national state. Civil rights laws? Sorry no power for that. Environmental laws? Sorry, no power for that. Social Security? No can do. Medicare? Ditto.

But that was then, this is now, some might say. Why can't the Roberts Court develop its own limiting principles? Well, obviously they can. The Supreme Court has the final say on these things. But the question is—is there a principled way to do so? I believe the answer is no. And the answer is provided by the Roberts Court's decision in United States v. Comstock, decided in 2010. I'll discuss that case on the flip.

(Continued reading below the fold)  

In Comstock, the Court considered the constitutionality of a federal civil commitment law. The Court described the question thusly:

The federal statute before us allows a district court to order the civil commitment of an individual who is currently “in the custody of the [Federal] Bureau of Prisons,” §4248, if that individual (1) has previously “engaged or attempted to engage in sexually violent conduct or child molestation,” (2) currently “suffers from a serious mental illness, abnormality, or disorder,” and (3) “as a result of” that mental illness, abnormality, or disorder is “sexually dangerous to others,” in that “he would have serious difficulty in refraining from sexually violent conduct or child molestation if released.” §§4247(a)(5)–(6).
Note what the statute does not address: commercial activity. Indeed, it does not address activity at all. For the person so committed is not being committed as punishment for a crime, but because he would be considered "sexually dangerous to others." As a constitutional question, this certainly seems to reach the outermost limits of government power of any kind—the detainment of persons. Short of the death penalty, there seems little that can match this awesome power of the government, any government. The Court upheld the federal statute as a valid exercise of Congressional power under the Commerce and Necessary and Proper clauses.  

And how did the conservative bloc of the Roberts Court vote in Comstock?

Breyer, J., delivered the opinion of the Court, in which Roberts, C. J., and Stevens, Ginsburg, and Sotomayor, JJ.
And Justices Kennedy and Alito? They concurred in the judgment. In his concurrence, Justice Kennedy wrote:
Respondents argue that congressional authority under the Necessary and Proper Clause can be no more than one step removed from an enumerated power. This is incorrect. When the inquiry is whether a federal law has sufficient links to an enumerated power to be within the scope of federal authority, the analysis depends not on the number of links in the congressional-power chain but on the strength of the chain. [Emphasis supplied.]
While we have heard many arguments regarding the constitutionality of the individual mandate, we have heard none that question the "strength of the chain" connecting it to the Affordable Care Act and thus, the valid exercise of the Commerce power. Indeed, in arguing for striking down the entire ACA, constitutional opponents of the law state that the entire law is only viable if the mandate remains intact.

Justice Kennedy continues:

[A] basic principle that the powers reserved to the States consist of the whole, undefined residuum of power remaining after taking account of powers granted to the National Government. The Constitution delegates limited powers to the National Government and then reserves the remainder for the States (or the people), not the other way around, as the Court’s analysis suggests. And the powers reserved to the States are so broad that they remain undefined. Residual power, sometimes referred to (perhaps imperfectly) as the police power, belongs to the States and the States alone.

It is correct in one sense to say that if the National Government has the power to act under the Necessary and Proper Clause then that power is not one reserved to the States. But the precepts of federalism embodied in the Constitution inform which powers are properly exercised by the National Government in the first place. See Lopez, 514 U. S., at 580–581 ( Kennedy , J., concurring); see also McCulloch , supra, at 421 (powers “consist[ent] with the letter and spirit of the constitution, are constitutional”). It is of fundamental importance to consider whether essential attributes of state sovereignty are compromised by the assertion of federal power under the Necessary and Proper Clause; if so, that is a factor suggesting that the power is not one properly within the reach of federal power.

There are two points to make about this argument from Justice Kennedy. First, the individual mandate and penalty do not in any way implicate principles of federalism. No party has made such an argument and Justice Kennedy's own questioning excludes such a concern. He asked:
[W]hen you are changing the relation of the individual to the government in [..] a unique way, do you not have a heavy burden of justification to show authorization under the Constitution? [Emphasis supplied.]
Thus even Justice Kennedy could find no federalism concern with regard to the individual mandate and penalty. The second point is, in my view, the more serious one. It involves Justice Kennedy's utter disregard for settled precedent. In U.S. v. Carolene Products, the Court stated:
The [Commerce]  power "is complete in itself, may be exercised to its utmost extent, and acknowledges no limitations other than are prescribed by the Constitution." Gibbons v. Ogden, supra, 196. [...]  And it is no objection to the exertion of the power to regulate interstate commerce that its exercise is attended by the same incidents which attend the exercise of the police power of the states. Seven Cases v. United States, 239 U.S. 510, 514; Hamilton v. Kentucky [p148] Distilleries & Warehouse Co., 251 U.S. 146, 156. [Emphasis supplied.]
If Justice Kennedy seeks the overturn of Carolene Products, he should forthrightly say so.

And now we get to Justice Kennedy's bottom line about the unprecedented change in the relation of individuals with the federal government enacted by the federal civil commitment statute:

[T]his is a discrete and narrow exercise of authority over a small class of persons already subject to the federal power.
In other words, the federal government's detention of persons not based on their current activity is a "discrete and narrow exercise of authority over a small class of persons already subject to the federal power." It is not clear to me how any honest and reasoning person could find such an exercise of power within the Commerce and Necessary and Proper power and then find the requirement to purchase insurance or alternatively, pay a penalty, to exceed that authority. Such a result would not be principled.

As for Justice Alito, in his concurrence, he wrote:

I entirely agree with the dissent that “[t]he Necessary and Proper Clause empowers Congress to enact only those laws that ‘carr[y] into Execution’ one or more of the federal powers enumerated in the Constitution,” post , at 1, but §4248 satisfies that requirement because it is a necessary and proper means of carrying into execution the enumerated powers that support the federal criminal statutes under which the affected prisoners were convicted. The Necessary and Proper Clause provides the constitutional authority for most federal criminal statutes. In other words, most federal criminal statutes rest upon a congressional judgment that, in order to execute one or more of the powers conferred on Congress, it is necessary and proper to criminalize certain conduct, and in order to do that it is obviously necessary and proper to provide for the operation of a federal criminal justice system and a federal prison system.
But Justice Alito does not explain why, after these persons, after having served their criminal sentences, are still subject to the Commerce power. He writes:
The only additional question presented here is whether, in order to carry into execution the enumerated powers on which the federal criminal laws rest, it is also necessary and proper for Congress to protect the public from dangers created by the federal criminal justice and prison systems. In my view, the answer to that question is “yes.” Just as it is necessary and proper for Congress to provide for the apprehension of escaped federal prisoners, it is necessary and proper for Congress to provide for the civil commitment of dangerous federal prisoners who would otherwise escape civil commitment as a result of federal imprisonment.
I'm not sure that passage even makes sense. How do you "escape civil commitment as a result of federal imprisonment?" Apparently, once you have been charged with a crime, you are subject to the Commerce power forever. Fair enough, but how then is a person who has, at some time, entered the health care market any different in that respect? (Setting aside the fact that health care and health insurance are clearly species of interstate commerce and criminal law is not.)

Again, there is no principled manner in which these justices can argue that the individual mandate is "different" in any way that makes it unconstitutional. It is certainly different because the regulations in question are unquestionably commercial in character. Indeed, therein lies the point—the Affordable Care Act is as clear an exercise of the Commerce Power as one could possibly imagine. The enactment of the individual mandate is as clear an exercise of the Necessary and Proper power as one could possibly imagine.

It would take the abandonment of all principle for these justices to rule otherwise.

There is one exception to this statement—Justice Thomas. In his dissent in Comstock, Justice Thomas remained consistent with his stated views:

No enumerated power in Article I, §8, expressly delegates to Congress the power to enact a civil-commitment regime for sexually dangerous persons, nor does any other provision in the Constitution vest Congress or the other branches of the Federal Government with such a power. Accordingly, §4248 can be a valid exercise of congressional authority only if it is “necessary and proper for carrying into Execution” one or more of those federal powers actually enumerated in the Constitution.

Section 4248 does not fall within any of those powers. The Government identifies no specific enumerated power or powers as a constitutional predicate for §4248, and none are readily discernable. Indeed, not even the Commerce Clause—the enumerated power this Court has interpreted most expansively, see, e.g. , NLRB v. Jones & Laughlin Steel Corp. , 301 U. S. 1, 37 (1937) —can justify federal civil detention of sex offenders. Under the Court’s precedents, Congress may not regulate noneconomic activity (such as sexual violence) based solely on the effect such activity may have, in individual cases or in the aggregate, on interstate commerce . Morrison , 529 U. S., at 617–618; United States v. Lopez , 514 U. S. 549, 563–567 (1995) . That limitation forecloses any claim that §4248 carries into execution Congress’ Commerce Clause power, and the Government has never argued otherwise, see Tr. of Oral Arg. 21–22. 5

Here Justice Thomas' argument is at its strongest, for there is virtually no nexus to commerce in this federal civil commitment statute. For persons looking for limits to the Commerce and Necessary and Proper power, Comstock provided the ideal case.

Justices Roberts, Alito, and Kennedy declined that opportunity. (Interestingly, Justice Scalia reversed his views stated in Raich and joined Thomas' dissent. With an eye on the mandate issue perhaps?)

The Affordable Care Act case provides the worst opportunity for principled application of limiting principles to the Commerce and Necessary and Proper power. The Affordable Care Act involves a sector clearly at the nexus of interstate commerce. The individual mandate and penalty are textbook examples of a Necessary and Proper regulation to the valid exercise of the Commerce power.

This is not a difficult case. This is an easy case for principled justices.

But we're not exactly dealing with principled justices are we? Expect contortions in our Commerce Clause and Necessary and Proper jurisprudence. Let us hope that they are sui generis and apply only to this case.

Heck, the Roberts Court could cite Bush v. Gore for that.

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Comment Preferences

  •  Shorter Roberts Court (18+ / 0-)

    We make up stuff to suit our pre-FDR worldview......

    Response: If you "got it" you wouldn't be a republican

    by JML9999 on Sun Apr 15, 2012 at 10:08:03 AM PDT

  •  Two Questions (1+ / 0-)
    Recommended by:
    orestes1963

    I rarely post here anymore, but I find this diary interesting.

    I have two questions:

    (1) On economic issues, you have not found the S.Ct. radically conservative until now?

    My view is that its always been extremely conservative on economic issues. We wouldn't have regulatory capture nearly as much in this country without a trusty court.

    (2) Economic issues are rarely considered important in nominating justices. That's by design so that the status quo and corporate interest can be maintained. Do you see that changing?

    •  This Court? (1+ / 0-)
      Recommended by:
      scott5js

      Any Supreme Court?

      This post is about the Commerce and Necessary and Proper power.

      The Lochner Era was radically conservative by any standard.

      As a more general matter, there is a lot of merit to the Beard argument for an "Economic Interpretation of the Constitution: though their factual argument was certainly not the best.

      •  Response (3+ / 0-)
        Recommended by:
        eglantine, wsexson, Nisi Prius

        (1) "Court" for me really starts since the conservative packing began in the 70s of the federal bench, and working its way up the the S.Ct. both throughout the 80s until now. I am not interested in any particular clause or doctrine because I don't think it matters to the Conservatives other than in getting what they want, which is servicing corporate interest.

        (2)  There is already an economic interpretation. It just happens to be a Conservative one. The only ones playing at that not being the truth are Liberals, who seem in a permanent state of denial and then surprise followed by more denial.

        In part because Liberals are trying to accommodate Conservatives rather than defeat them.

        (3) An economic interpretation would have been necessary to defeating the Conservatives. When I discussed this with Adam B after Citizen United came out. I made the point then, and I will make it now, if the Equal Protection Clause were seen as an instrument for economic justice rather than identity, it would have been a strong weapon against the ruling in that case.

      •  Once you make them about more than enumerated (1+ / 0-)
        Recommended by:
        orestes1963

        powers, you can justify anything, if it's for the "good of the people".

        This post is about the Commerce and Necessary and Proper power.

        [T]here is no more dangerous experiment than that of undertaking to be one thing before a man's face and another behind his back. - Robert E. Lee

        by SpamNunn on Sun Apr 15, 2012 at 10:40:07 AM PDT

        [ Parent ]

  •  Fifty or so years ago I had a great deal of (13+ / 0-)

    respect for the Supreme Court.  I have now made an 180 degree turn and find myself with very little respect for this once great institution.  I am convinced that most of the Supreme Court Justices knew how they were going to vote on the ACA before hearing any oral arguments.  Most will overlook precedent, twist the law like a pretzel, in an effort to justify their vote, as they have evolved into appointed politicians wearing black robes.  

    "It took us a couple of days because I like to know what I'm talking about before I speak." President Barack Obama 3/24/09

    by sfcouple on Sun Apr 15, 2012 at 10:18:42 AM PDT

  •  Raich, how ironic it is used both (3+ / 0-)
    Recommended by:
    Armando, followyourbliss, Eric Nelson

    to take away the Americans rights to vote the Laws of their States and their own wellbeing, and make sure that they don't have insurance to cure the 1st fuckup.

    "the government's role should be to uplift, enlighten, educate and ennoble the citizen, not oppress them with taxation and intrusive laws," Gatewood Galbraith, Historic Marijuana Advocate, aka "The Last Free Man In America," RIP 1-3-12

    by SmileySam on Sun Apr 15, 2012 at 10:18:43 AM PDT

  •  It is forcing individual private purchase (8+ / 0-)

    ...that is at issue here to me.  Forcing us to use an intentionally less efficient (because private insurers admitted they couldn't compete), more expensive private system doesn't promote the general welfare in my book.  Having a public option would have of course eliminated that concern and the constitutional argument.

    I do not like the business-at-the-expense-of-the-consumer aspect of the mandate and do not want that upheld by the Supreme Court.  I see it as a dangerous precedent that, if upheld, would be abused by the predominantly business conservative congress going forward.

    It is unfortunate that this can be used to undermine the whole of ACA by a conservative court, but the architects of the law built it that way on purpose.  If various prevailing interpretations of the commerce clause are overturned as a result it will be bad, but it was foolish to hand a conservative court this loaded weapon in the first place.

    "Money is like manure. You have to spread it around or it smells." J. Paul Getty

    by Celtic Pugilist on Sun Apr 15, 2012 at 10:20:43 AM PDT

    •  That's an argument on the merits of the mandate (9+ / 0-)

      not on its constitutionality.

      In case you are wondering, I also don't like the mandate.

      •  But would either of you feel differently if (1+ / 0-)
        Recommended by:
        jes2

        There was a so-called 'public option', i.e. a government run non-profit insurance taht would be included in the mandate? Or just moving to a medicare-for-all system such as Canada has?
           Perhaps using the Swiss system, where the Swiss are mandated to buy private insurance - but the insurance companies are not allowed to make a profit out of basic insurance - seems a bette way to handle this, but would it pass constitutional muster or you and other's approval?
           Clearly I side with Armando in that any of these options are fully constitutional and perhaps a better way forward

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

        by MichiganChet on Sun Apr 15, 2012 at 10:34:40 AM PDT

        [ Parent ]

        •  I advocated for (4+ / 0-)

          autoenrollment in a public insurance plan.

          So obviously, I would feel differently.

          •  OK, but should people have the choice of private (0+ / 0-)

            insurance then? I well realize that this question takes us all off-topic in that debating the good and bad points of the mandate are much a different question than whether it is constitutional or not; I only bring this up because I have a bias toward this Swiss system - which I candidly admit - but also because it is very unclear to me that in the present circumstances (which includes an absence of political courage in many Democratic party members) that a better system than what was currently invented would be feasible politically, even though there are excellent arguments as to why it has severe limitations practically.

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

            by MichiganChet on Sun Apr 15, 2012 at 11:04:32 AM PDT

            [ Parent ]

        •  Of course. Public option fits in existing (0+ / 0-)

          ...interpretations as I understand them.

          "Money is like manure. You have to spread it around or it smells." J. Paul Getty

          by Celtic Pugilist on Sun Apr 15, 2012 at 10:57:26 AM PDT

          [ Parent ]

      •  No, that is where the extension of powers (2+ / 0-)
        Recommended by:
        MichiganChet, orestes1963

        under the commerce clause seems to apply.  I didn't see a convincing argument that granting this new power was necessary and the only way that the desired end could be accomplished.

        (I don't doubt that you dislike the mandate and I'm not trying to take a swipe at you.)

        This reminds me of the extremely unpopular private-to-private eminent domain case that liberal justices pushed through.  I don't get that one any more than the mandate.  This is one of the ways I see a clear divide among what I consider progressive views, and liberal views and why I do not self identify as liberal.  It is also very dangerous to the left as it allows conservatives to portray us as authoritarian.

        "Money is like manure. You have to spread it around or it smells." J. Paul Getty

        by Celtic Pugilist on Sun Apr 15, 2012 at 10:39:35 AM PDT

        [ Parent ]

        •  Two points (1+ / 0-)
          Recommended by:
          cheerio2

          (1) It is not a new power.

          (2) I do not think anyone has ever argued that the individual mandate is not necessary to the reform elements of ACA.

          Your argument is singular in my experience.

          •  You might want to re-examine (3+ / 0-)
            Recommended by:
            Clem Yeobright, wsexson, hmi

            This forcing private purchase does indeed appear to be a new power.  It has been latched onto by the public as well, and is very unpopular...so much so that the Supreme Court will have cover for virtually anything they do if they overturn the mandate.

            I'm pretty sure that I read right here at dKos several times that the Administration argued before the Court that the individual mandate was required for ACA and that could not be separated.  I disagreed with that argument, and I would have instead said they were completely separable and dared them to strike the business lobby's mandate down.  

            "Money is like manure. You have to spread it around or it smells." J. Paul Getty

            by Celtic Pugilist on Sun Apr 15, 2012 at 11:04:36 AM PDT

            [ Parent ]

          •  Sure it is (1+ / 0-)
            Recommended by:
            Celtic Pugilist

            ACA forces citizens into the stream of commerce.  Are you aware of any CC precedents where the persons affected by congress's action were not in the stream of commerce (accepting the Wickard principle as satisfaction of this requirement).  Here, congress is compelling citizens to participate in commerce.  

            One can similarly argue that Kelo did not create a new power because eminent domain exists as a constitutional power.  That merely begs the question because Kelo did extend the interpretation of that right to permit the state to take property for the benefit of a private party.  

            I find your claim unconvincing- unless you can provide precedent where an inactive citizen was compelled to participate in commerce by congress.

            •  Look (0+ / 0-)

              If you are not going to read my posts, then I am not going to respond to your comments.

              As I've told other folks, I enjoy engage in my threads, but only with people who engage my arguments by actually reading them.

        •  That sounds like a political argument, not a (0+ / 0-)

          constitutional one. I think you were thinking of Kelo vs New London. Which incidentally Kennedy was in the 5-4 majority and may provide a clue as to the thinking

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

          by MichiganChet on Sun Apr 15, 2012 at 11:12:14 AM PDT

          [ Parent ]

    •  Well, I'm being forced to pay a higher premium (9+ / 0-)

      because somebody who is able to pay for health insurance will not do it.

      That isn't right, either.

      Barack Obama for President '08

      by v2aggie2 on Sun Apr 15, 2012 at 10:25:28 AM PDT

      [ Parent ]

      •  I could use that argument for many products (2+ / 0-)
        Recommended by:
        Clem Yeobright, orestes1963

        ...but it wouldn't make it any more constitutional to force others to buy a product that they don't want.  Afterall, the only reason one person's cost is declining is because the total revenue for the vendors is greater than before.

        For instance, the cost of many niche products is higher because of the small volume resulting in high unit cost.  Increase the volume and my price will drop.  Now, do you want me legislating that everyone must buy a product so that my cost to purchase the same will go down?

        There isn't a Federal constitutional issue with doing this as a govt. pool.  There is one in forcing people into private pools without a Federal option.

        "Money is like manure. You have to spread it around or it smells." J. Paul Getty

        by Celtic Pugilist on Sun Apr 15, 2012 at 10:54:41 AM PDT

        [ Parent ]

        •  But everybody uses health care (5+ / 0-)

          that is the difference

          Barack Obama for President '08

          by v2aggie2 on Sun Apr 15, 2012 at 11:02:28 AM PDT

          [ Parent ]

          •  Not in a given year. (2+ / 0-)
            Recommended by:
            Celtic Pugilist, wsexson

            The ACA reboots every year; penalties are assessed based on the previous year's behavior and there is no carryover.

            Immigrants are not penalized for joining the system at age 50, e.g. - as they are for Social Security, please note.  There is no 'credit' for making your economically-unjustified sub-40 y.o. risk-avoidance contributions when you pass 40.

            ACA could have been made a 'lifetime' system. It wasn't. So your argument carries no weight.

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

            by Clem Yeobright on Sun Apr 15, 2012 at 11:07:38 AM PDT

            [ Parent ]

          •  Personally I use it very little. (3+ / 0-)
            Recommended by:
            Clem Yeobright, Odysseus, orestes1963

            Wife and kids?  Much more so.

            You could add up my past 20 years of personal health care and have trouble paying an annual premium.  I recognize at some point that I can't predict that can or will change.  

            The problem here is in requiring that I use local monopoly private insurers without a public option.  I have no problem with a cradle to grave shared health care pool with universal coverage that extends past one's ability to pay.

            "Money is like manure. You have to spread it around or it smells." J. Paul Getty

            by Celtic Pugilist on Sun Apr 15, 2012 at 11:19:44 AM PDT

            [ Parent ]

            •  Then change the law (4+ / 0-)
              Recommended by:
              Armando, cheerio2, Loge, andgarden

              but that doesn't the current law and mandate unconstitutional.

              And that is Armando's point in the first place, as he has eloquently stated on numerous occasions.

              Barack Obama for President '08

              by v2aggie2 on Sun Apr 15, 2012 at 11:32:21 AM PDT

              [ Parent ]

              •  Yes, it does make it unconstitutional to many (0+ / 0-)

                ...until some precedent declares otherwise.  That is why it is before the Court.  

                I didn't support this law because of the mandate with lack of public option (that and its failure to address cost control.)  There are many things worthy of support, but the mandate spoils the whole.  And from what I've read on the Front Page here in the past (as memory serves) those arguing for ACA before the Supremes have considered the mandate inseparable.

                If it is ruled unconstitutional, the burden will be on those who foisted this mandate albatross on us to revise the law to make it fit within precedents.  The path is obvious but the legislative majorities are gone, as is the momentum.  What constitutional law professor could have predicted this?

                "Money is like manure. You have to spread it around or it smells." J. Paul Getty

                by Celtic Pugilist on Sun Apr 15, 2012 at 12:07:12 PM PDT

                [ Parent ]

                •  That's incorrect (4+ / 0-)

                  Congressional acts are presumed to be constitutional.

                  You have it precisely backwards.

                  •  No, it is an unknown, awaiting ruling (1+ / 0-)
                    Recommended by:
                    Clem Yeobright

                    You can't anymore claim it is constitutional than it is not when the very issue is before the Court as we speak.  If it had been tested before I would argue the other way.  If it showed no signs of even approaching the higher courts I would agree with you, but there it is right at the top, hanging in the balance.

                    It does appear to be an extension of powers to the majority of the public--and not a popular one.  Whether or not the Supreme Court will consider it a new extension, and whether or not they will consider such constitutional is something none of us will know until the ruling is made.

                    "Money is like manure. You have to spread it around or it smells." J. Paul Getty

                    by Celtic Pugilist on Sun Apr 15, 2012 at 12:40:09 PM PDT

                    [ Parent ]

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

                      They are presumed constitutional.

                      Look, you may not like existing constitutional law, but please stop pretending it is not what it is.

                      •  Agreed (0+ / 0-)

                        it is presumed to be constitutional going in, and I have seen published in a lot of places.

                        This isn't up for debate

                        Barack Obama for President '08

                        by v2aggie2 on Sun Apr 15, 2012 at 02:43:54 PM PDT

                        [ Parent ]

                      •  It's merely a semantic point (1+ / 0-)
                        Recommended by:
                        Celtic Pugilist

                        The fact that it is before the court indictes that its
                        constitutionality is being considered.  So, yes, today it is constitutional.  However, that determination will be
                        moot when the court rules (regardless of how it rules).

                        •  No (1+ / 0-)
                          Recommended by:
                          v2aggie2

                          It is a point of law.

                          A basic point.

                          Am important point.

                          Of course, some people really do not care about the constitution, just the result.

                          •  Which people don't care? (0+ / 0-)

                            That's a double edged sword so you might want to be careful with it while we are still having a civil discussion.  

                            The new precedent required to survive this review seems straightforward enough to me.  (Which way the notoriously fickle court will go with it I have no idea.)  The private mandate raises disturbing constitutional questions as well as some basic moral ones.  The only way I don't see this as worthy of a Supreme Court ruling is if one assumes the Commerce Clause permits any new regs.  That is overly broad for most.

                            After the eminent domain ruling (again business friendly thing), there was a strong backlash and a rush by states to eliminate the new power.  This has a similar odor about it.  In both cases whether or not the new power is deemed constitutional, there could very well be a majority of us who see the issue that ended up in court itself as basically wrongheaded and rife for abuse.

                            "Money is like manure. You have to spread it around or it smells." J. Paul Getty

                            by Celtic Pugilist on Sun Apr 15, 2012 at 07:46:26 PM PDT

                            [ Parent ]

                          •  What new precedent? (1+ / 0-)
                            Recommended by:
                            v2aggie2

                            The one where Congressional acts are presumed tobe constitutional?

                            Look, you were wrong in what you wrote.

                            Look it up if you want.

                            It's not disputed  by anyone. Not even Thomas.

                          •  Your evasiveness isn't working (0+ / 0-)

                            The precedent being discussed is the private mandate.

                            You can play silly semantic games forever, but it won't help your legal argument.  The claim that no precedent is necessary doesn't seem to have passed muster since the very issue is before the Court on an accelerated schedule.  Actually, even if they were to rule that existing precedent covers it, the fact that they took it up is proof that this was not settled as you are claiming.

                            And if the ruling comes out tomorrow that the mandate is unconstitutional you will be retroactively wrong as well.  That's the silliness of the semantic argument you are making.  For example, one can claim that since something was passed by congress it is constitutional even if it was a virtual certainty that it would be stricken down by the court.  

                            Now it is time to turn the sword on its former master.  Of course, some people really do not care about the constitution, just the result. <==  From here it looks like that charge could better be leveled at you since this seems to be about saving ACA by allowing a constitutionally undecided private mandate.  The private mandate is a tool that business conservatives can use against the interests of consumers.  By supporting it you are playing into the hands of conservatives who make the charge that the left plays fast and loose with the constitution by waving their hands and saying the Commerce clause will allow anything.  It never ceases to amaze me how frequently Democrats carry the water for business conservatives and don't even realize they are doing it.  

                            Obviously those keen legal minds and constitutional law professors leading the party did not factor in the relative plasticity of interpreting the Commerce clause...and that it would be done by a conservative Court that might take this as excuse to narrow the limits--something that is within their authority to do.  No, the "we-passed-a-law-therefore-it-is-constitutional, because-we-say-it-is" mindset seems to have prevailed.  From the snippets I saw posted at dKos of the questions and responses in court, that doesn't appear to be too far off.

                            The private mandate may very well open Pandora's box.  The Court is presently jiggling the key in the lock but we aren't yet sure if it will open the box or what awaits inside.

                            "Money is like manure. You have to spread it around or it smells." J. Paul Getty

                            by Celtic Pugilist on Mon Apr 16, 2012 at 02:36:32 PM PDT

                            [ Parent ]

                  •  Congressional acts "were presumed" to (1+ / 0-)
                    Recommended by:
                    Celtic Pugilist

                    be constitutional.  Oral argument convinced me that will no longer be the case.  

          •  But the law compels health insurance (1+ / 0-)
            Recommended by:
            Celtic Pugilist

            It is important to understand the difference in promoting one's argument.

            •  It compels health insurance (1+ / 0-)
              Recommended by:
              Clem Yeobright

              as a way to regulate the consumptoin of health care.

              If you are forced to take in patients in all circumstances, then a requirement to have health insurance if you can afford it can be used as an additional regulation.  It isn't the only option or even the best option, but it is a legally valid option in my view

              Barack Obama for President '08

              by v2aggie2 on Sun Apr 15, 2012 at 10:44:32 PM PDT

              [ Parent ]

        •  Health care is different due to ER laws (1+ / 0-)
          Recommended by:
          v2aggie2

          Health care is different from a number of other products in that it's provision is mandated but the payment is not.

          If someone ends up in an ER, they must be treated even if they can't pay. If they can't the cost is eaten by the hospital. Part is covered by the government and part is passed through everyone else through higher prices.
          This is different from other products.
          If someone walks into a supermarket, they are not obligated to give him food if he can't pay for it and raise prices on everyone else to cover the free food they are mandated to give away to all comers.
          That is an issue unique to healthcare and it's that requirement to give care, that is part of the reason for an insurance mandate.

          For instance, the cost of many niche products is higher because of the small volume resulting in high unit cost.
          This is not an issue of low volume causing higher prices. The volume is there, in fact the goal is to decrease the volume in the ER.
          It's an issue of cost shifting (of where possible having people cover their own costs through insurance, rather then everyone else covering it through paying higher premiums to cover ER visits the person can't pay for) and dealing with those costs , that already exist, that will always exist, in a better manner.
          There is one in forcing people into private pools without a Federal option.
          What is the difference between a private pool and a government pool constitutionally ?
          •  You rely upon a false- and conservative- premise (0+ / 0-)

            The person who uses the emergency room without insurance is still liable for the expenses s/he incurs.  No one is given a free ride.  Of course, some do not pay and are judgment proof, but this is a risk that all businesses take.  Does this risk justify compelling us to buy other products as well?  I could argue that my phone bill is higher because others default on their payments.  So, I guess congress should be able to compel everyone to have a mobile phone.  It's a dangerous argument.

    •  I feel the mandate would be fine if there were a (5+ / 0-)

      public option, i.e. a Medicare buy in.  Health care is not free but it should be affordable which is why Romney care is proving to be in MA.  It is beginning to hold costs in check.

    •  The Court shouldn't usually have to rule on (1+ / 0-)
      Recommended by:
      v2aggie2

      Whether a law actually works, at least not without some long-term data to base that opinion upon.  The mandate doesn't have to actually promote the general welfare.  I think the standard merely should be that a rational person could think it does.

      Congress would not work if it were not give sufficient power that there is a risk of that power being abused.  The remedy is to elect a better Congress, not to neuter it.

  •  fascinating (4+ / 0-)

    I will reread it many times.  I really needed something like this to understand this part of the law.  

    BTW, on my first go round I noticed that it read this:

    Repeating the key words: "Congress can regulate purely interstate activity that is not itself "commercial."
    and I think you meant to use maybe intrastate?

    I'm not liberal. I'm actually just anti-evil, OK? - Elon James White

    by Satya1 on Sun Apr 15, 2012 at 10:25:53 AM PDT

  •  Still misses the point (5+ / 0-)

    Q. What is the commerce being regulated?
    A. Oh, it doesn't yet exist. The law says that you must bring the commerce into existence by buying, from a private party, a product might not want, whether you want it or not.

    Q. Can I be required to spend any particular amount of money for this product?
    A. You will have to spend whatever amount of money Congress decides you ought to spend in order to get the coverage Congress says you must have.

    Q. Is Congress constitutionally required to subsidize my required purchase, either now or in the future?
    A. No. The constitution permits Congress to do whatever they please, so long as they can successfully maintain the fiction that they are regulating commerce.

    •  Your purchase is required (2+ / 0-)
      Recommended by:
      Armando, Odysseus

      only if you are above certain income levels.

      And insurance is subsidized in various income ranges.

      Barack Obama for President '08

      by v2aggie2 on Sun Apr 15, 2012 at 10:32:42 AM PDT

      [ Parent ]

    •  This comment misses the point (4+ / 0-)
      Recommended by:
      jes2, Gary Norton, Sychotic1, Eric Nelson

      The Commerce being regulated is the health care and halth insurance market.

      To make that regulations effective, the Necessary and Proper clause empowers the Congress to regulate in all aspects, including areas that do not have a substantial effect on interstate commerce.

      Look, you may not like what the precedents say and what THIS COURT has said, but that's you arguing for overturning settled precedent.

      Your questions demonstrate a misunderstanding of the applicable law.

      I ;ve addressed your mistakes in your first question.

      Let me now address your errors in your 3rd question. You ask "Q. Is Congress constitutionally required to subsidize my required purchase, either now or in the future?
      A. No. The constitution permits Congress to do whatever they please, so long as they can successfully maintain the fiction that they are regulating commerce."

      That's actually false. If the requirement is such that it rises to the level of a taking, then the government would have to provide you fair compensation..

      Remmebr the part about the limits being "prescribed by the Constitution?" That's where it comes in. As it would on the whole "broccoli" question.

      As for you second question, it is a rather ironic one.You ask " Q. Can I be required to spend any particular amount of money for this product?

      How about this question - how much can the government tax me? What if the Medicare tax is increased?

      No doubt you will say "that's different." I suppose it is. But not from the constitutional perspective.

      Just realize what you aare arguing - it is the Lochner argument.

      •  And there it is: (0+ / 0-)
        Let me now address your errors in your 3rd question. You ask

        "Q. Is Congress constitutionally required to subsidize my required purchase, either now or in the future?

        A. No. The constitution permits Congress to do whatever they please, so long as they can successfully maintain the fiction that they are regulating commerce."

        That's just wrong.  

        [T]here is no more dangerous experiment than that of undertaking to be one thing before a man's face and another behind his back. - Robert E. Lee

        by SpamNunn on Sun Apr 15, 2012 at 10:42:40 AM PDT

        [ Parent ]

      •  Confused as ever (0+ / 0-)

        1) Do you maintain that Congress has the power to require my purchase of something from a private party because of the commerce power?; the necessary and proper clause?; both?; either?
        [Is the N&P clause at issue in the current case. I didn't think so.}

        2) "If it rises to the level of a taking" is admirably vague. What makes this "not a taking," in the first place? Is there some level of Congressional siphoning off of my income that transforms it to "a taking"? Would you care to specify that? And are you now arguing that Obamacare could be authorized as an exercise of the power of eminent domain???

        3) Are you, unlike the Obama administration, arguing that Obamacare is a tax, except that (unlike other taxes) you pay it directly to some private party? You, no doubt, will say that from a constitutional perspective it's exactly the same. You would be wrong. And it would be because you simply fail to understand Justice Kennedy's question about the citizen/government relation.

        •  You mean regarding ACA? (4+ / 0-)
          Recommended by:
          v2aggie2, Loge, Odysseus, andgarden

          ACA actually requires you to purchase insurance OR pay a penalty.

          I think the power of Congress to do tis derives from 3 sources - the taxing power, the Commerce power and the Necessary and Proper power.

          I believe the soundest least controversial argument is the N&P power for the reasons explained.

          Rises to a taking is vague. But your hypothetical was vague. Talking concretely, the penalty is the ACA is $695.

          Not a taking.

          Finally, the Obama Administration is arguing that the penalty is an exercise of the TAXING POWER. That the penalty is not denominated a tax does not mean the penalty is not exercised under the taxing power. The Congress expressly invoked the taxing power.

          Anything else?

          •  Broccoli (0+ / 0-)

            "I think the power of Congress to do tis derives from 3 sources - the taxing power, the Commerce power and the Necessary and Proper power."

            You've convinced me ... to buy broccoli futures. And allow me to predict once again that if this argument succeeds, you are going to very, very unhappy at where it will lead during President Santorum's 2nd term [that will start in 2021].

            I mean, so long as abortion isn't completely outlawed, so what if abortion surgeons must be specially licensed by the federal government, that there is a $695 fee to apply to have an abortion, and all abortions will have to be performed at one of the 3 national centers established for the procedure (as a safety measure)? I mean, that's all constitutional, isn't it?

            •  I'm pretty sure (0+ / 0-)

              you were convinced of your view long ago.

              And nothing I could possibly write would ever change your mind.

              Nothing wrong with that.

              Yours is the view of the Constitution in Exile crowd.

              Your perogative.

            •  We're back to broccoli again? (3+ / 0-)
              Recommended by:
              Armando, andgarden, indie17

              You do realize that government could accomplish the exact same thing as a mandate through a tax on people who don't buy health insurance or broccoli or whatever, do you not?  Turn off the Sean Hannity and change the channel, please.  

              •  Unfortunately (0+ / 0-)

                you don't understand the arguments that are summed under the broccoli heading. Nor do you realize that it makes a difference how things come about. If Congress had established a national health service and taxed us for it, none of these issues would be under discussion. Instead, they passed a dumb measure by unorthodox parliamentary means and which will use constitutionally questionable methods to go into effect.

                You—I suggest you stop getting all your news from John Stewart and DK. For myself, I have never seen Mr. Hannity and don't actually know who he is. You ought to get past the dimwitted notion that anyone who disagrees with you must be The Enemy. As Bugs would say, "What a maroon!"

    •  Healthcare in this country is delivered through (0+ / 0-)

      commerce, in every transaction whether through the government or through private enterprise, money changes hands, by the nature how how all our healthcare is delivered(fee for  service or performance), it is commerce, for anyone to argue that it is not, begs credulity.

    •  point by point. (3+ / 0-)
      Recommended by:
      cheerio2, Armando, indie17

      1.). Not the argument -- commerce is the right to use health care in emergencies which everyone presently has.  Also not the law, as commerce isn't needed, just an effect on commerce.  The information needed to address the point is in the diary so it wouldn't be a point "missed."

      2.). Not true.  Doesn't matter to the Constitutional power.

      3.). Not whatever.  See the elsewhere proscribed by Constitution argument, and "fiction" replaces analysis with rhetoric.

      Liberal judges an court commentators should be willing to uphold even questionable policy when clearly constittionally, or else it takes away the ability to criticize conservstives for changing constitutional doctrine to suit their policy.  Comstock is hard to sure with Lopez, but you'll still see tons of cites to it in the opinion that would hold the ACA unconstitutional

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

      by Loge on Sun Apr 15, 2012 at 11:55:55 AM PDT

      [ Parent ]

  •  Learned, or re-learned today: (2+ / 0-)
    Recommended by:
    Armando, Odysseus

    entire federal criminal law system rests on the Commerce Clause.  

  •  The argument can be made, and has been, that (0+ / 0-)

    The Hughes Court got it wrong in United States v. Carolene Products Co., and that "strict scrutiny" is not in the Constitution but, rather, was a footnote to a case that was added to save the asses of the Supreme's from FDR's court packing scheme.  

    Don't be surprised if the Roberts Court swings that pendulum back the other way, while it can.  

    [T]here is no more dangerous experiment than that of undertaking to be one thing before a man's face and another behind his back. - Robert E. Lee

    by SpamNunn on Sun Apr 15, 2012 at 10:38:31 AM PDT

  •  simple premise (3+ / 0-)

    The Roberts court is packed with justices who think almost every decision from FDR on was wrong. The weight of precedent becomes very different when you start by disregarding decades of jurisprudence to go back to 'original principles' that only exist in the fever dreams of conservatives.

    "No special skill, no standard attitude, no technology, and no organization - no matter how valuable - can safely replace thought itself."

    by xaxnar on Sun Apr 15, 2012 at 10:38:59 AM PDT

  •  If it's not unconstitutional... (3+ / 0-)
    Recommended by:
    Celtic Pugilist, Theden, Nisi Prius

    ... it is, at the very least, extremely unethical and immoral to force people to "contribute" to the profit margins of corporations, and outrageous and unearned yearly bonuses for CEOs, for the "privilege" of having health insurance.

    Other countries consider health care a right, not a privilege.

    Other countries who consider health care a right have to pay a certain percentage of their wages to their government's health care fund and their government administers the whole health care system via the government health care.

    I would not mind that; we already pay into Medicare while young and working, just as we pay into FISA (the last tax cut will put a crimp in the amount given to FISA toward Social Security; that was a bad move on Obama's part).  Why not extend Medicare to people who are not retired or disabled, cover all costs like other countries do?  The infrastructure is already in place and running efficiently via Medicare.  They'd have to hire more workers to do the paperwork, but it could be done rather easily.  (Americans would have to be hired to do the jobs, too, I should think.)

    Retired and disabled people who get Medicare still pay into the system; it's not free after retirement.  It's a deduction.  [Every time there's a Social Security cost of living increase, the cost of Medicare goes up, right along with everything else, so the small increase is eaten up immediately by an increased payout to Medicare.]  Retired and disabled people who qualify for Part D [Prescriptions] were forced to get prescription insurance when that went into effect under Bushistas, but it only came with a "buy insurance or else" clause; no punishment was meted out.

    Paying out to a for-profit corporation for the "privilege" of getting their crappy health insurance as they rake in record-setting profits?

    Not something about which I'm enthusiastic, to put it mildly.

    I'm sick of attempts to steer this nation from principles evolved in The Age of Reason to hallucinations derived from illiterate herdsmen. ~ Crashing Vor

    by NonnyO on Sun Apr 15, 2012 at 10:43:50 AM PDT

    •  It's not an "Ethical" Court (2+ / 0-)
      Recommended by:
      v2aggie2, Loge

      The question is a constitutional one.

      •  No, they are not ethical (2+ / 0-)
        Recommended by:
        orestes1963, Nisi Prius

        They've proved that already. They installed Dumbya in the White House with their 12 December 2000 decision, and then they declared corporations are persons with first amendment rights.

        Neither are our Congress Critters ethical since they adamantly refused to consider single payer when their constituents were writing, calling, faxing and asking, telling, then begging them to not pass this POS for-profit health insurance legislation and go for a single-payer system instead, and/or an option to buy into Medicare.  Our Congress Critters (most of them - two exceptions I can think of off the top of my head) were certainly willing to take insurance, medical, and pharmaceutical corporate bribes via campaign contributions.  Their votes were bought and paid for by for-profit corporations going back to the mercenary and MIC corporations who are still profiting off of the Afghanistan and Iraq wars based on lies for oil.

        This country went off the tracks with the SCOTUS election decision in 2000, and between the religious fanatics who insist on inserting religious values into our secular laws and illegal wars, torture, the refusal to deal with the "leaders" who are so clearly war criminals, and now this for-profit health insurance mess, I have zero belief this country can ever get back to something resembling normal or ethical (at least not within the next 34 years, since I plan to live to age 100).  We are being mired deeper and deeper into Corporatism (per Mussolini's definition).

        If I were young and had my health again, I'd emigrate.

        I'm sick of attempts to steer this nation from principles evolved in The Age of Reason to hallucinations derived from illiterate herdsmen. ~ Crashing Vor

        by NonnyO on Sun Apr 15, 2012 at 02:30:52 PM PDT

        [ Parent ]

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

      against the mandate.  

      If the mandate is struck down, it will make it harder for Congress to pass legislation in the health care field.  that will make it harder to get any broad health care measures passed, including single payer or the public option.

      Perhaps, the actuall merits of any rule might not prohibit a single payer or public option system.  But viewing things that way is to believe that a Supreme Court ruling striking down the mandate will be a straight up legal analysis.  To the contrary, it would be a political ruling, in support of conservative economic values.

      So, the true precedent will be a Supreme Court that will strike down progressive values.

    •  the trouble with understanding the mandate (3+ / 0-)
      Recommended by:
      Armando, pico, indie17

      In isolation.  It's part and parcel of an extremely moral act, amazing it financially feasible to cover those whom the market left alone did not.  There may be better ways, but the diary's cite to the Carolene Products decision is from a line of cases that say economic regulations are best left to Congress -- on textual, policy, and democratic grounds.  And once the mandate is not seen in pure isolation, the concession that it's not there for Congress's health (pardon the pun), the commerce clause critique is about the worst possible one, with dangerous effects.  

      Asking any court, let alone this court, to rule based on its views of the morality of economic regulation is fraught ith peril.  If you want to say there's a due process right to refuse to pay, that's not a commerce argument, and the mandate enforces the penalty against considerably fewer people than assumed.  One could indeed argue that with the ability to pay for access to emergency services in advance, given the effects on the prices charged to others, it'd be immoral not to.  for me, it's enough that congress deliberated and came to a not completely irrational conclusion.  That's also an argument that opens the door to striking down the entire regulatory state as infringing the freedom of congress.

      The court will no doubt refuse to go that far even if striking the mandate, but that'll be politics, not reason.  They shouldn't be encouraged to act political, though saying to the right wing critics of the mandate (how were the ones who presented argu,wnts to the court, hypocritically) that they can't win in the courts what they lose in the legislature, is a political claim. And I'm not willing to give up that which the mandate -- or, people who could afford the mandate -- pays for, which is most of what the ACA does well.  Attacking the mandate's morality in isolation, and wothout a full accounting of the consequences of an unelected branch striking it down on law, policy, or otherwise, is thus dishonest.

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

      by Loge on Sun Apr 15, 2012 at 12:12:15 PM PDT

      [ Parent ]

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

       

       Wickard [...] establishes that Congress can regulate purely intrastate activity that is not itself “commercial,” in that it is not produced for sale, if it concludes that failure to regulate that class of activity would undercut the regulation of the interstate market in that commodity. [Emphasis supplied.]

    Repeating the key words: "Congress can regulate purely interstate activity that is not itself "commercial."

    Should the italicized interstate be "intrastate"?
  •  word police (0+ / 0-)

    "thusly" is not a word with any different mean than the simple "thus". It is a corruption of language seen in the use of "lastly" for "last", etc.  

    Fructose is a liver poison. Stop eating it today.

    by Anne Elk on Sun Apr 15, 2012 at 10:52:07 AM PDT

  •  7-2 mandate will be upheld. (5+ / 0-)

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

    by Cartoon Peril on Sun Apr 15, 2012 at 10:53:56 AM PDT

  •  I'm no lawyer but (1+ / 0-)
    Recommended by:
    Celtic Pugilist

    I'd argue that the act isn't regulating commerce but rather compelling it or creating it (with a tax penalty). That to me has always been the achilles heel.

    •  The commerce takes place regardless (1+ / 0-)
      Recommended by:
      Armando

      everybody consumes health care

      Barack Obama for President '08

      by v2aggie2 on Sun Apr 15, 2012 at 11:04:45 AM PDT

      [ Parent ]

      •  at some point, yes (0+ / 0-)

        but that doesn't seem to give congress the right to coerce an individual's purchase of a good or service when they do not want it or need it. As i said i'm not a lawyer but that does seem antithetical to the constitution to me.

        •  The act does not create health care (1+ / 0-)
          Recommended by:
          v2aggie2

          nor does it create the fact that companies supply it, or that people perform jobs that involve intrastate commerce.  At that point, if Scalia believes his own words, the government can regulate it, even though it is not commerce itself.  

          Occupy the voting Booth!

          by anonevent on Sun Apr 15, 2012 at 11:31:11 AM PDT

          [ Parent ]

        •  Congress requires hospitals to take care of people (3+ / 0-)
          Recommended by:
          Armando, v2aggie2, Odysseus

          with no insurance whether they want to or not.  What Congress did not require is that they not cost shift, which they do.  I should not be required to pay for your health care if you can afford it but I am.  Congress has been mandated this kind of thing for years.  Humanity and good sense requires that you have health insurance just as you have car insurance because your decisions affect me.

          •  I disagree (1+ / 0-)
            Recommended by:
            orestes1963

            and I suspect we will on the matter for ever more. "I should not be required to pay for your health care if you can afford it but I am." Nope. You are not required to pay for my health insurance currently, but you certainly will under the ACA.

            You also say "Humanity and good sense requires that you have health insurance just as you have car insurance because your decisions affect me." But I do not HAVE to drive a car. I can do without car insurance for that reason without affecting you in least. I HAVE to purchase the insurance mandated by the ACA. Regardless of need or want.

            I agree that "Humanity and good sense requires that you have health insurance .." but does the constitution?

            As I said we will probably disagree on the matter.

            •  We will disagree, I AM required to pay for your (1+ / 0-)
              Recommended by:
              v2aggie2

              health care by the doctors and hospitals that are required to take care of you whether or not you have health insurance, they tack it on to my bill by overcharging me for my care.  If the government pays your care and they underpay then I overpay.  It is our system.  

              •  no (1+ / 0-)
                Recommended by:
                orestes1963

                the institution pays. maybe they charge your insurer more? maybe not? But you are not charged by anyone for anyone else's health insurance. With the ACA you WILL pay, in taxes, for everyone's.

                •  I did not say I was charged for the health (0+ / 0-)

                  insurance but for their care.  Somebody has to pay because businesses that lose money over a period of time go out of business.   It is a fact of life, you like many Americans disconnect yourself from the costs because your insurer pays or you do not see the bill.  I always look at the bill and I see the ridiculous cost of my care. The people that really get hammered at people that are self insured, they foot the bill for all of us.  

    •  That reallty ignores (1+ / 0-)
      Recommended by:
      v2aggie2

      my post.

      Certainly you don't have to read or address what I write when commenting in this thread, but it does make it pretty pointless from my perspective.

  •  The thing about Kennedy is ... (6+ / 0-)

    ... that he's not too sharp. He sometimes goes by what is in his gut rather than what is in the law.

    I can't blame Verilli for not anticipating that Anthony Kennedy would suddenly manufacture a new standard of review. His supposed "heavy burden" comment has no constitutional or legal basis. Its citation would be the interior of Anthony Kennedy's stomach lining.

    The correct answer to that question would have been: "No, Justice Kennedy. Congress does not have a heavy burden of justification to show authorization under the Constitution that the people's representatives have deemed necessary and proper to a valid commercial regulation. The heavy burden rests on the challengers to show that the regulation is improper, which this Court has always taken to mean: "otherwise expressly prohibited."

    The continued conflation of the state sovereignty argument with an individual liberty argument is mind-boggling. It's even more amazing that so many otherwise intelligent people have been taken in by it.

  •  "shared responsibility penalty"? (1+ / 0-)
    Recommended by:
    Clem Yeobright

    Welcome, Winston, to our warped world.

  •  I don't see how Roberts can depart (5+ / 0-)

    from signing-on to the Comstock opinion in full. He has no concurrence to reinterpret and fit the circumstances. He's stuck with his vote for Breyer's opinion.

    Unless, of course, he has absolutely no principles.

    Ok, so I read the polls.

    by andgarden on Sun Apr 15, 2012 at 11:34:50 AM PDT

  •  Have they been willfully inconsistent? (0+ / 0-)

    Have they not been irrational, unethical and self-contradictory?

    Have they not been moved and motivated by political considerations rather than the discipline of Constitutional law?

    Has Scalia not thumbed his nose at any convention and offered the people a very public "fuck you?"

    Roberts needed two tries to get the oath of office right.  There's is a very public example of their irresponsibility and corruption.  

    They will do only what is politically expedient.  This is the worst bunch of white collar criminals to have ever taken the helm at SCOTUS!  Thomas was ABA's lowest-ranked nominee of all time!

    I have no clue how this will turn out, but I think that SCOTUS will screw the people if it is in the general corporate and wealthy elite interest to do so.  All that Republicans want to do is fuck up this country as much as possible in every way (without prompting violent revolution) so as to make it dysfunctional and chaotic - unlivable and unattractive to illegal immigrants.  Compliant Democrats go along with this.  None of them have any creed.  Disorder gives established government an excuse and an opportunity to suppress dissent and impose regressive laws.  Perhaps that sheds some light on SCOTUS's agenda.  Fuck them.  

  •  Thank you so much for this! (2+ / 0-)
    Recommended by:
    v2aggie2, Clem Yeobright

    "Women shall not control their own reproduction." Fallopians 10:16 --Republicans' new Eleventh Commandment.

    by BlueMindState on Sun Apr 15, 2012 at 11:55:03 AM PDT

  •  health insurance as commerce (1+ / 0-)
    Recommended by:
    v2aggie2

    Isn't somehow the notion that the purchase of health insurance, not just medical care, also at issue regarding interstate commerce? If I buy insurance in one state, it is still applicable across state lines. I buy my own that way now that I'm retired. I find it hard to accept that Congress has no Constitutional power to regulate that. So how is the mandate separable? The argument about being forced to purchase something is specious. By not purchasing health insurance, an individual is still involved directly in commerce, driving up costs of both insurance and of health care. Or am I wrong about this and how law applies?

  •  With feeling and a step by step progression to .. (0+ / 0-)

    ..follow, with the vulnerabilities in their arguments exposed:
    If:

    The Constitution delegates limited powers to the National Government and then reserves the remainder for the States (or the people), not the other way around, as the Court’s analysis suggests. -  Kennedy
    Then: the next point  explains why the argument I've heard from the right about the person who "was born...
    Fair enough, but how then is a person who has, at some time, entered the health care market any different in that respect? (Setting aside the fact that health care and health insurance are clearly species of interstate commerce and criminal law is not.)
    ..and lived a full life without ever setting foot in a hospital"  is a bs argument; because nearly everyone has benefited in some way from national health if nothing more than a flu, smallpox vaccinations, or being born in a hospital etc.

    And even if that isn't considered; in an emergency or accident , anyone will receive emergency hospital care.

    Therefore no matter how"discrete and narrow" exercise of authority over a small class of persons it is:

    ...the federal government's detention of persons not based on their current activity is a "discrete and narrow exercise of authority over a small class of persons already subject to the federal power." It is not clear to me how any honest and reasoning person could find such an exercise of power within the Commerce and Necessary and Proper power and then find the requirement to purchase insurance or alternatively, pay a penalty, to exceed that authority. Such a result would not be principled.
    Thank you Armando for the clarity on this -

    P.S. Post is much more clear than my comments wording suggests

  •  Judicial review and the bootstrap problem (0+ / 0-)

    The Constitution punts on judicial review.  It almost had to, because the only way to limit this power, once formally granted, would be to limit what matters the Court could accept for its review and decision.  I don't see how you do that in a constitution, and the Founders understandably didn't want to explicitly grant a power that they couldn't limit.

    The minimal judicial review is that which logically has to exist in order to allow the Law to not require contradictory things of people and institutions.  Federal statutes could establish requirements that contradict protections or requirements of the Constitution.  Federal statutes could contradict state statutes, and the 10th Amendment means that the Supremacy Clause does not guarantee that the federal statute automatically prevails.   Statutes could be passed that conflict with the common law, and the 9th Amendment means that such statutes do not necessarily set aside the common law.   As a minimum, the federal courts, with SCOTUS at the apex, have to be able to resolve all such conflicts arising as the courts try to enforce  statues passed by our legislatures.

    That's a pretty substantial minimum, even if the courts bend over backwards to limit to a minimum the sorts of questions they agree to decide.  But no power sits formally in judgment of their granting of cert.  And their reputation is such that a majority of SCOTUS that wants to assert absolute power to decide any question that might arise over any conflict that might arise in these United States, faces no practical curb from informal pressures.  You can point out until you're blue in the face how inconsistent this majority is being in asserting power, and that is no problem at all for a majority that doesn't care to limit its own power.

    Sure, there are several mechanisms in the Constitution that could theoretically be used to limit the power of the courts.  But practically speaking, their only limit is what they can get Kennedy to go along with.  Why would anyone believe that this Federalist Society stooge majority we have now would not declare invalid any law that limits their jurisdiction, or any impeachment of a member of that junta, or any attempt to repack the Court by way of an expanded membership?  

    The admittedly only incipient reigin of terror of this Federalist Five is only going to end one of three ways:
        1) Kennedy gets cold feet
        2) death deprives them of the majority before they get to the point of controlling new appts to their ranks
        3) the rest of us start ignoring their rulings.

    #1) has been our default hope-that-is-not-a-plan, but is getting harder and harder to believe in.

    #2) relies on Ds either winning the presidency forever, or resolving to never again allow on the Court anyone that any R president would ever nominate.  Neither seems likely.  Any victories we have on that front will be only temporary --- barring the collapse of the other party and the conservative movement it embodies.

    That leaves #3).  As Jackson once said, "Mr. Justice Marshall has made his decision, now let him enforce it."   Even if the Rs collapse, their place will be taken by another party to represent the spirity of mookish Know-Nothinghood.  The idiots we will have with us always.  We cannot leave any path to absolute power open to them, or they will some day go down that path.

    We can't rely on the self restraint of the Nine to protect us from their dictatorship.  Judicial review must be limited, and the only practical limit is that the other branches must become willing to simply ignore rulings that arise from cert overreach.

    A Court that couldn't restrain itself enough to recognize that no one had standing to bring these anti-ACA suits needs to be restrained from outside.  Let's try #1 and #2 first, but sooner or later in the future history of our repubilc, we're going to get to the point that #3 will be required, or we won't have a republic any longer.

    We should have destroyed the presidency before Obama took office. Too late now.

    by gtomkins on Sun Apr 15, 2012 at 01:42:23 PM PDT

  •  sidebar: McConnell repeal Obamacare plan (1+ / 0-)
    Recommended by:
    Eric Nelson
    Planning for a GOP takeover, McConnell and other top Republicans have begun shaping an early legislative agenda for 2013 aimed initially at repealing Obama’s health care law.

    Texas Sen. John Cornyn, who wants to be the No. 2 Senate Republican, said the “most obvious way” to kill the law would be to wait until there’s a GOP Senate and push repeal via a 51-vote, simple majority through the budget reconciliation process.

    For the campaign season, McConnell has appointed Sen. Ron Johnson (R-Wis.) to develop a joint agenda with House Republicans and the eventual GOP presidential nominee — a move aimed at both tamping down internal dissension and creating a stark contrast with Democrats.

    McConnell is beginning to speak one by one with GOP senators to secure enough commitments to ensure he remains Republican leader in 2013-14, according to senators.

    Not only is McConnell thinking about winning in 2012 with a message focused largely on health care, he’s also starting to chart a course for a Republican Senate in 2013 and what could be a bruising reelection bid in 2014.
    McConnell, the most calculating Republican operator in the Senate, may have said his No. 1 goal is to defeat President Barack Obama in 2012. But becoming majority leader is at least a close second.
    http://www.politico.com/...

    V. P. Biden - introduced the "Romney Rule" good blow to Mitten's glass jaw - - just how much capital$$ could Romney et al make under the Romney/Ryan/Rove tax cut plan

    by anyname on Sun Apr 15, 2012 at 01:58:53 PM PDT

  •  Roberts Court Jurisprudence (1+ / 0-)
    Recommended by:
    charliehall2

    Actually, it's fairly simple.  They give due deference to a co-equal branch of government unless it's doing something they happen not to agree with.

    "The test of our progress is not whether we add to the abundance of those who have much. It is whether we provide enough to those who have little. " --Franklin D. Roosevelt

    by jg6544 on Sun Apr 15, 2012 at 02:37:40 PM PDT

  •  So Congress can (2+ / 0-)
    Recommended by:
    orestes1963, Nisi Prius

    simply force commerce into existence under the auspices of Commerce.

    Maybe you're ok with Congress having the authority to spend every cent you make on their pet projects (I'm sure there won't be ANY lobbying for similar mandates) but I'm not.

    Furnishing congress with the authority to promote and regulate interstate commerce simply by no stretch of the imagination, also includes the authority to force unwilling consumers into a market to buy anything.

    There is a reason Congress' reach into your pocketbook is expressly and constitutionally limited to taxation, WITHOUT having to torture another constitutional clause into a pretzel to award a blood-sucking industry with a 3.1 billion person captive market.

    Didn't you hear, they took the word "gullible" out of the dictionary?

  •  Single-payer resolution, Houston area (0+ / 0-)

    Democratic district conventions meet 8 AM Sat Apr 21. more info at http://www.hcdp.org.
    It will take several election cycles to pass single-payer, but the time to start is NOW. HR 676 has 76 co-sponsors. They have not given up and quit, in spite of a Republican House.

    "Whereas the cost of medical care is steadily rising in the United States,
    and whereas the Affordable Care Act was a compromise package that does not
    really close the issue,
    and whereas all or part of the ACA may be declared unconstitutional,

    be it resolved that Democrats in the Texas 15th district support a
    single-payer bill such as HR 676,
    and be it further resolved that we thank Rep John Conyers for re-introducing
    HR 676 and thank Reps. Sheila Jackson Lee, Al Green, and Eddie Bernice
     Johnson for co-sponsoring HR 676."

    Censorship is rogue government.

    by scott5js on Sun Apr 15, 2012 at 08:04:41 PM PDT

  •   (0+ / 0-)

    Democratic district conventions meet 8 AM Sat Apr 21. more info at http://www.hcdp.org.
    It will take several election cycles to pass single-payer, but the time to start is NOW. HR 676 has 76 co-sponsors. They have not given up and quit, in spite of a Republican House.

    "Whereas the cost of medical care is steadily rising in the United States,
    and whereas the Affordable Care Act was a compromise package that does not
    really close the issue,
    and whereas all or part of the ACA may be declared unconstitutional,

    be it resolved that Democrats in the Texas 15th district support a
    single-payer bill such as HR 676,
    and be it further resolved that we thank Rep John Conyers for re-introducing
    HR 676 and thank Reps. Sheila Jackson Lee, Al Green, and Eddie Bernice
     Johnson for co-sponsoring HR 676."

    Censorship is rogue government.

    by scott5js on Sun Apr 15, 2012 at 08:05:09 PM PDT

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