Why Obama's Healthcare Law Is Constitutional
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RightField
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Wasn't the NYT/Greenhouse arguing that it was consistitutional because Nancy Pelosi would have put up a more spirited defense if it wasn't?
CHNOPS
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Mr. Verrilli seemed taken aback by the hostile reception from the court’s conservatives. He got off to a rocky start and never seemed to quite find his footing during his hour at the Supreme Court lectern.
http://www.nytimes.com/2012/03/28/u...ervative-justices-over-insurance-mandate.html
If this is true, and the law is overturned, it will be because of hubris not in the passage of the law, but in the defense of it. They clearly felt the Constitution was on their side, but Verrilli should not have walked in expecting it to be.
If that's the case, it's a fight they deserve to lose. This was a valid, intriguing and precedent-setting challenge to one of the largest social initiatives in the country's history. If they didn't recognize and value the process of vetting it, they deserve the KO for it.
http://www.nytimes.com/2012/03/28/u...ervative-justices-over-insurance-mandate.html
If this is true, and the law is overturned, it will be because of hubris not in the passage of the law, but in the defense of it. They clearly felt the Constitution was on their side, but Verrilli should not have walked in expecting it to be.
If that's the case, it's a fight they deserve to lose. This was a valid, intriguing and precedent-setting challenge to one of the largest social initiatives in the country's history. If they didn't recognize and value the process of vetting it, they deserve the KO for it.
Colonel Hogan
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Absolutely correct, and I wonder how many people who listened to yesterday's oral arguments understood the significance of what they were hearing.
To begin with, Solicitor General Verrilli seemed shocked that a majority of the Court was inclined to take the precept of specifically enumerated federal powers under the Commerce Clause as a serious Constitutional limitation. While acknowledging the factual basis for the limitation, Verrilli was slightly more evasive about how the individual mandate complied.
The Times article (from your link) got close to the heart of the matter when it cited Justice's Alito's request of Solicitor General Verrilli to "express your limiting principle as succinctly as you possibly can. Congress can force people to purchase a product where the failure to purchase the product has a substantial effect on interstate commerce, if what? If this is part of a larger regulatory scheme?"
Unfortunately, the Times misquoted Verrilli's response that the mandate was a legitimate response to solving a "national economic crisis." What Verilli said, was this:
Quite apart from the question of how counteracting any untold number of risks is in any way a "limiting principle," the SG returned to the real meat of his argument when he added:
This was the government's essential theme. The mandate was nothing more than regulating how certain inevitable costs within the commercial health care market would be paid for.
Unfortunately, Verrilli never directly addressed the justice's previously expressed concern as to precisely what the legal rationale was that limited government regulation under the ACA to the method of funding the individual mandate. Said Justice Roberts, "..once we say this is within Congress's commerce power, there's no reason other than our own arbitrary judgment to say all they can regulate is the method of payment. They can regulate other things that affect this now-conceded interstate market in health care in which everybody participates."
Scalia also challenged the government's contention that the mandate only regulated existing health care commerce rather than creating an entirely new stream of commerce, "By the way, I don't agree with you that the relevant market here is health care. You're not regulating health care. You're regulating insurance. It's the insurance market that you're addressing and you're saying that some people who are not in it must be in it, and that's -- that's different from regulating in any manner commerce that already exists out there."
Hubris, indeed.
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DeepThroat_
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I think the point is that the government can regulate interstate commerce but cannot force people to partake in commerce. Compare this to Paul Ryan's plan: if you buy health insurance, you get a $2,300 tax credit (presumably to help you pay for it). If you don't buy health insurance, you don't. That is neither single payer nor an individual mandate but still achieves many of the same goals. Plus it should be constitutional under the Taxing & Spending Clause (as opposed to the Commerce Clause). So, I don't think this closes as many doors as one might think at first blush.
J
JAMESBJOHNSON
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There's a larger, fatal issue that no one addressed.
If the Supremes okay the mandate it ends contracts as we know them.
In the 30s Hitler ordered every German to buy a Volkswagen on the installment plan. Once the Volkswagen Company collected the full purchase price from you, you were added to a waiting list for a car. The government/company collected millions of Marks but no one ever got a car.
If the Supremes okay the mandate it ends contracts as we know them.
In the 30s Hitler ordered every German to buy a Volkswagen on the installment plan. Once the Volkswagen Company collected the full purchase price from you, you were added to a waiting list for a car. The government/company collected millions of Marks but no one ever got a car.
DeepThroat_
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DeepThroat_
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Your article makes three legal arguments. Here's why they don't work:
(1) Necessary and proper. The article is arguing that this clause says that "Congress can force all people to buy health insurance because it needs to protect people with preexisting conditions". To generalize, it's saying that Congress can force everyone to do something to protect a small subset. If this clause can permit that, then Congress's power is unlimited because virtually every law protects some small subset.
Certainly Congress can do this sometimes when aided by other powers (IE taxing to raise an army), but creating something unsupported by any other power/right? I mean, really, look at the words: Congress has the power "To make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the government of the United States, or in any department or officer thereof." This says that Congress can mandate insurance?
(2) Commerce Clause. Congress can regulate commerce. If people do not purchase health care, it is not commerce - it is the lack of commerce. The article assumes that all people will purchase insurance and therefore Congress can regulate it. I propose: a person may never buy insurance, thus this is invalid. Furthermore, if Congress can argue that "people will buy it at some time so we can regulate it", again, what can't Congress regulate? All people will buy apples in their life, can they then force people to buy apples at preordained times or for a preordained amount? Invalid logic.
(3) Taxing power. This is where they would have their best argument. BUT in order to pass the law in Congress, the politicians declared it was NOT a tax but a penalty. It was only by explicitly stating that it was not a tax that the Act was passed. The Supreme Court cannot say that it is a tax (thus making any further consideration of this clause moot) because those who passed the legislation said it wasn't!
If you want universal health care, that's a policy decision. But if the laws aren't there to back it, the Supreme Court shouldn't bend laws to make it fit. That's making policy (legislating) instead of interpreting (adjudicating). That's for Congress, not for the Court. And it sounds like, after oral arguments, that the S. Ct. believes this as well.
Because, honestly, if Congress can regulate this - what can't they regulate? And even if it has universal healthcare, is that really the kind of nation you want to live in? No one minds overreaching authority when it's benevolent, but...
If this is truly something that deserves to be in place, it should be able to hold up to constitutional analysis - not snuck through by bending rules and thus giving the government more power later down the road. If this can't hold up (which, my opinion is, it can't), then the wisest thing to do would be to cancel it and send it back to be properly legislated by Congress.
mercury14
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Everyone engages in the health care commerce sooner or later. Even if they're uninsured and have their commerce paid for by someone else.
The difference between buying health care and buying food is that people can't show up at the Piggly Wiggly cash register with a cart full of groceries and no way to pay, and have the store pay for their stuff anyway. So it's a false equivalency.
Unfortunately I appear more capable of illustrating this than the administration's council.
Why does anyone here in the US want to become more dependent on our feds? I want a Govt that when and if it shuts down no one cares cause it really doesn't effect us. That's the beauty of America. The people make it run not our politicians. I don't want to keep marching down the road of dependence on our Feds. Of course they want that because dependence means power. Senators would hate to feel they didn't matter.
Yes I am assuming that a national healthcare system would make us more dependent on our Feds. I don't want that.
Yes I am assuming that a national healthcare system would make us more dependent on our Feds. I don't want that.
J
JAMESBJOHNSON
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The court already said what the problem is: THE BILL IS TOO DAMN LONG TO READ. They aint gonna read 2700 pages of legalese and take notes.
And that means THEY AINT GONNA BUY A PIG IN A POKE. They aint going on no legal blind date.
So you naturally gotta wonder which asshat at the White House thought 2700 pages was a great idea?
And that means THEY AINT GONNA BUY A PIG IN A POKE. They aint going on no legal blind date.
So you naturally gotta wonder which asshat at the White House thought 2700 pages was a great idea?
Look around the world. No country you would want to live in fits that description.
U
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Sean Renaud
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Meh. Given the choice between dependence on a government that I vote in and an employer who can replace me at a whim I'll choose the government.
Besides this country you speak of doesn't exist and if it ever existed hasn't in modern time.
mercury14
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You're just appealing to stupidity then.
Here's the law, which is only one-third the length you say: http://housedocs.house.gov/energycommerce/ppacacon.pdf
http://www.gpo.gov/fdsys/pkg/PLAW-111publ148/html/PLAW-111publ148.htm
You've got a Ph.D, right? Which part of it the law goes over your head? Here, let me give you the short form summary: http://thomas.loc.gov/cgi-bin/bdquery/z?d111:HR03590:@@@L&summ2=m&summary
Why now is length a problem for you?
J
JAMESBJOHNSON
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The court sez the law is 2700 pages.
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Sean Renaud
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Who cares how long it is?
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JAMESBJOHNSON
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Their combined intellect is reduced to miniscule insignificance when placed next to the VAST AND ALL ENCOMPASSING wisdom of Merc14.³
It seems to me that if they aint gonna read the law lotsa liberals aint got they ears to the ground.
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mercury14
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mercury14
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Its length depends on what page width format it's put into. Republicans are taking the skinniest page width on order to scare stupid people.
I just gave you the law in its exact text form. How many pages do you see?
U
