Saturday, August 22, 2009

Is Healthcare Reform "Unconstitutional"? No -- Why Rivkin and Casey Are Wrong

FOR UPDATED DEVELOPMENTS, SEE: More on the Constitutionality of Healthcare Reform


David Rivkin Jr. and Lee A. Casey, two very conservative partners (see sample of their writings following this article) at the law firm Baker Hostetler LLP, have co-authored an op-ed in the Washington Post that attempts to challenge the constitutionality of pending healthcare reform legislation. Specifically, Rivkin and Casey argue that Congress lacks the authority to require everyone (with a few exceptions) to have health insurance. Rivkin and Casey argue that neither the Commerce Power nor the power to "tax" authorizes Congress to mandate universal coverage.

The Commerce Clause authorizes Congress to regulate commerce with "foreign nations," "Indian tribes," and "among the several states." As Rivkin and Casey acknowledge, for six decades beginning in the 1930s, the Supreme Court interpreted the Commerce Power quite expansively. During that time it became a major source of power authorizing the enactment of measures as diverse as federal criminal laws, environmental laws, labor laws, securities laws and civil rights. The Rehnquist revolution, however, has led to a conservative shift (the degree of which is debatable) in the Court's interpretation of the Commerce Power.

Although the Court has seemingly shifted to a more restrictive analysis of the Commerce Clause, it has not completely abandoned showing deference and flexibility to Congress. In the 2005 Gonzales v. Raich decision, the Court upheld Congress' authority to regulate the "intrastate, noncommercial cultivation, possession and use of marijuana."

Rivkin and Casey argue that Raich cannot justify the individual insurance mandate because the Court found that the Controlled Substance Act (CSA) regulates "economic" activity, while a mandate to enroll in a health plan does not. There are two serious problems with this argument: It misreads Raich, and it fails to recognize the economic impact of uninsured people on the medical services and health insurance markets.

Requiring Health Insurance = Prohibiting Use of Medical Marijuana?
In Raich, the Supreme Court held that Congress could regulate the intrastate use or possession of medical marijuana for three reasons. First, the CSA represents a valid exercise of the Commerce Power because the statute "regulates the production, distribution, and consumption of commodities for which there is an established, and lucrative, interstate market." Second, considered in the aggregate, the use or possession of medical marijuana substantially affects interstate commerce because it increases the availability of marijuana in the nonmedical and interstate markets. Third, regulating the use or possession of medical marijuana is "an essential part of the larger regulatory scheme" accomplished by the CSA.

Justice Scalia wrote separately, concurring in the judgment, and he based his arguments exclusively on the fact that the marijuana prohibition is part of a broader commercial regulation (the CSA). Only two justices (O'Connor and Thomas) dissented.

Raich could indeed justify the insurance mandate. The proposed reforms seek to reduce costs, inefficiencies and inaccessibility in the health insurance and medical services markets. These markets are inherently interstate and commercial. Caring for uninsured persons unduly increases the costs associated with health insurance and medical services and diminishes access and coverage for consumers who desire these services. Finally, requiring universal coverage is an essential part of the Congressional scheme designed to lower costs and expand access in health insurance and medical services markets.

Taxation
Although the Constitution gives Congress the power to "tax" and to "spend" in the general welfare of the country, Rivkin and Casey argue that the Tax Power cannot justify mandatory coverage because Congress cannot use this power to circumvent the constraints imposed by the Constitution. To support this argument, Rivkin and Casey reached deeply into the vault and retrieved the 1922 case Bailey v. Drexel Furniture. In that case, the Court invalidated a 10% tax on the profits of companies that used child labor. The Court held that even though the Tax Power is very broad, Congress could not use it as a pretext to accomplish an otherwise unconstitutional end. There are major differences between Drexel Furniture and proposed healthcare reform.

First, in Hamer v. Dagenhart, decided just 4 years prior to Drexel Furniture, the Court explicitly invalidated a federal law that banned the use of child labor. Because the Court had so recently held that Congress could not prohibit child labor, it was easy to view the onerous tax in Drexel Furniture as an improper attempt to evade prior case law.

Over time, the Court has expanded the scope of the Commerce Power and explicitly overruled Dagenhart. This same doctrinal evolution authorizes Congress to mandate individual coverage. Clearly, if Congress can mandate coverage under the Commerce Power, then taxing or imposing a penalty upon individuals who fail to pay would not contradict Drexel Furniture.

Final Thoughts
On some level, I agree with Rivkin and Casey who argue that raising taxes and funding "universal care" (rather than mandating universal coverage) would provide a "neater" solution to these issues. But this is not a politically popular solution. The fact that a cleaner solution exists, however, does not make the one that Congress has proposed unconstitutional. The current case law permits Congress to regulate health insurance and medical services markets. Requiring universal coverage is an essential component of that broader regulatory effort.

Note: Jonathan Adler, writing for the Volokh Conspiracy, has a similar take:
While I agree that the recent commerce clause cases hold that Congress may not regulate noneconomic activity, as such, they also state that Congress may reach otherwise unregulable conduct as part of an overarching regulatory scheme, where the regulation of such conduct is necessary and proper to the success of such scheme. In this case, the overall scheme would involve the regulation of "commerce" as the Supreme Court has defined it for several decades, as it would involve the regulation of health care markets. And the success of such a regulatory scheme would depend upon requiring all to participate. (Among other things, if health care reform requires insurers to issue insurance to all comers, and prohibits refusals for pre-existing conditions, then a mandate is necessary to prevent opportunistic behavior by individuals who simply wait to purchase insurance until they get sick.)
Note: My essay only addresses the Congressional authority claim. Whether some individuals could successfully assert an individual right against the mandate is a different question. Because the mandate operates like a tax, it is difficult to imagine a successful "rights" claim.

Note: Speaking of "wrong," look at this essay by the same duo: David B. Rivkin Jr. & Lee A. Casey on Amnesty International on National Review Online.

Or this nugget: Tortured Logic on Torture.

Despite all of the evidence to the contrary, Rivkin and Casey still deny that the Bush administration engaged in torture: The Memos Prove We Didn't Torture - WSJ.com.

49 comments:

Anonymous said...

I understand the Commerce Clause, but as it stands only individuals engaging in commerce are affected. How does the Commerce Clause apply to the uninsured who have not bought health insurance? It seems the Obama and the members of Congress in favor of mandating private health insurance (guaranteeing private insurance companies the business of almost 47 million people) are overlooking one simple fact: They are mandating that 47 million people enter into contracts with private companies. The Commerce Clause says nothing about mandating individuals purchase any goods, products, or services. How do you explain this using the Commerce Clause?

Darren Lenard Hutchinson said...

You have to consider the commerce clause together with the Tax Power. The government can absolutely impose a tax on people to cover the cost. Instead, it is asking everyone to prove coverage. If you don't get coverage - you pay the tax/penalty. The government will not arrest the intentionally uninsured. Instead, they will have to pay a tax.

How does this relate to commerce: treating uninsured people raises the price of medicine and health insurance. Having universal coverage will help alleviate these costs. I guess they could pass a law saying: the government will no longer require hospitals to treat uninsured people....I would like to see how the rebellious "I don't want to be forced to have insurance" crowd reacts to that. Most people who are uninsured would like to have insurance. You are talking about a tiny percentage of the market.

Anonymous said...

Yes, many people want insurance, but I'm not convinced they want to be penalized for not buying it, especially since the government will be determining what constitutes adequate coverage. It's not a simple matter of buying insurance, it's a complicated matter of buying insurance from private companies that the government wants people to have. The government is threatening to punish (economically) those who do not comply. Does this constitute a forced contract.

In Massachusetts, the state mandates that all individuals purchase insurance from private companies. There is no representation at the insurance companies. Consumers' only rights with private companies when they don't like or want a service, good, or product is to complain, file a complaint, or simply refuse to do business with a company.

Can the government supersede the consumer's right to refuse to purchase a product, good, or service that is being paid for with the consumer's own money? Does the tax power and Commerce Clause guarantee the government the right to tell people how to spend their take-home pay upon pain of tax penalities (punishment)?

Darren Lenard Hutchinson said...

Well, you can consider it being penalized for not buying it or being taxed to cover the cost of universal coverage. Because the latter is perfectly constitutional, bickering over whether the coverage is "mandatory" does not advance the conversation. I don't have any kids in school; I don't even have any kids. Still, I have to pay property taxes, which go primarily to funding education. I wish I could get out of it, but I cannot.

Don't you pay an income tax? How is the "penalty" different?

Anonymous said...

Right, the power to tax to provide Medicare or Social Security has been ruled Constitutional. But that money goes directly to the government.

In Massachusetts, the citizens' money must go to private insurance companies, not the government, in order for citizens not to be penalized by the government. Are you suggesting that the government can force people to buy products, goods, and services from private companies? This is the major question and you don't seem to be answering it. You're sidestepping it by talking about property taxes. Taxes I pay to the federal government or the state government are not the same as PREMIUMS paid to PRIVATE COMPANIES. Why are you conflating the two?

I am asking a question about contract law and a simple one at that: Is it Constitutional for the government--state or federal--to force people into contracts with private companies? Please respond directly to this question.

I have no problem with taxes because they are levied and collected by a government elected by the people. Insurance companies are businesses where there is no representation of the people. Why do you confuse government with the profit motives of private industry? Your reasoning isn't clear, nor is your argument. Also, the issue of the mandate is the central question, not some diversion from the major issue.

Finally, income taxes are not a penalty. A penalty is something one faces when he or she does not comply or commits a wrong doing. Working and paying taxes are not wrong doing and paying taxes on our income is not a penalty, according to the government!

Darren Lenard Hutchinson said...

Good grief. I am not sidestepping anything. The FEDERAL LAW (please stop conflating Mass and the Feds -- because Mass would probably have an even stronger argument) requires coverage or a tax is imposed. This tax goes to IRS -- not a private company. Your entire hypothetical fails because it is based on a false factual premise.

Darren Lenard Hutchinson said...

Another thing anonymous: The state can treat private companies as suitable to serve its public function -- in this case, universal coverage. Presumably, insurance companies have to meet certain regulatory requirements to operate within the state, and if they do, the state allows them to insure individuals.

How is this different from states requiring auto owners to pass an inspection - but allowing drivers to go to private mechanics to certify their inspections? It operates the same way.

PS: Tax dollars go to private companies and to private citizens all the time (think subsidies for certain business, government contracts and tax credits for people with children, etc.). If the government could not give $$$ from the Treasury to private concerns, this would imperil the operation of government.

Anonymous said...

Look, I don't want to argue with you. I may simply not be wording my statements in a way that is clear. Let me clarify:

1) I'm not conflating state and federal. My original statement was:
"In Massachusetts, the citizens' money must go to private insurance companies, not the government, in order for citizens not to be penalized by the government."

I should have written:

In Massachusetts, state residents must purchase private insurance policies, paying premiums to private insurance companies. If residents do not buy health insurance that includes benefits the state deems necessary, then the state of Massachusetts fines them and uses those fines as it sees fit.


To keep things simple, I'd like your response to this question:

If the state of Massachusetts decided, for example, that buying oranges was in the public good, could the state mandate that all people buy oranges? And could the state require that those oranges be purchased only in certain stores and only be of a certain size and type?

Darren Lenard Hutchinson said...

Anonymous: The Mass plan is similar to the proposal in Congress. I said before, however, that Mass probably has an even stronger basis. States have very broad power to regulate in the public interest (police power). They just cannot violate the Constitution or legitimate federal legislation.

With respect to your "orange" hypo, I think it is more illuminating to think of things (other than health insurance) that Mass probably makes its citizens (or large amounts of them do). I am sure that Mass requires drivers to have auto insurance - which means buying it directly from private companies.

Also, the state probably requires all children to receive innoculations by a certain age -- which could involve going to a state licensed physician or to a public health clinic.

The state also likely requires children between 6 and 18 to attend school. The state taxes residents to pay for it, but you cannot even opt out of the tax if you "home school" your kids or send them to private school. If you want to home school, you probably have to meet certain state-mandated requirements; also, private schools have to receive state approval to operate.

And I did a quick Google search and discovered that some local governments (I did not look long enough to see what state-wide law is) in the state will fine people who have unkempt lawns. So, either they have to do the work on their own or hire out private individuals to do so.

In sum, states can and do impose affirmative obligations on citizens. The US government imposes fewer, but this does not mean that it cannot.

Anonymous said...

Thank you for your answer; I appreciate the time you are taking to respond. The reason I read your article posted here and engage you is because the federal plan is very similar to the plan in Massachusetts, my home state.

There are some in Massachusetts who contend that the health insurance mandate violates their right to enter into private contracts freely. I will explain:

Granted, the state requires drivers to purchase auto insurance. However, the state does not mandate the purchase of vehicles. Residents can choose to walk or borrow a friend's car and avoid paying car insurance. With vaccines, parents can opt out by homescholing their children or, in the extreme, not having children. If people don't want to be responsible for mowing a lawn or maintaining private property, then they don't buy any property. In other words, people have ways to avoid these mandates by making certain choices.

But, health insurance is very different from all other kinds of insurance. How? It must be purchased regardless of whether an individual wants to partake of the medical apparatus, visits physicians, takes prescription drugs, has money in the bank to pay for emergency and other medical services, and so forth.

There are some "naturalists" in the state who don't see cancer, diabetes, and heart disease, for example, as reasons to visit doctors or go to hospitals. They treat themselves with herbs and roots, for better or for worse, and accept the consequences when they don't get better or even die. Yes, the number of these people is small, but they exist.

It seems that simply existing in the state of Massachusetts is enough for the state to impose the mandate. This is the crux of the existential argument for those who believe the mandate amounts to having people enter into forced contracts.

From this perspective, is the mandate constitutional?

Darren Lenard Hutchinson said...

YES! I already answered this. There are a couple of reasons. First, the mandate is essentially the same as a tax. Don't get hooked on the wording; courts look at the "substance" of legislation - not the form. At least under the federal legislation, people are "required" to have insurance, but if they don't they are not arrested and thrown into prison. Instead, they have a higher tax to pay. This is the same thing as saying "we are raising taxes to cover universal healthcare, but if you already have insurance you are exempt from the tax." Do you really believe that exempting insured people from the tax is UNCONSTITUTIONAL? IF not, then the federal plan and the Mass plan are constitutional because they do the same thing.

Second, states and Congress can impose affirmative requirements on citizens so long as they have a legitimate basis for doing so. Universal coverage can sharply reduce healthcare costs to society at large. All of the "exceptions" you listed above (people can avoid lawn requirements by not owning property) do not make the insurance requirement unconstitutional. The only way that the law is unconstituional is if the requirement infringes an individual right. There is no fundamental constitutional right against paying an uninsured tax.

Mike Stollenwerk said...

I linked to your mistaken analysis from http://www.examiner.com/x-2782-DC-Gun-Rights-Examiner~y2009m9d5-Why-federal-health-control-is-like-federal-gun-control

Darren Lenard Hutchinson said...

Mike: I never said Drexel Furniture was overruled, and I have responded to your misrepresentation of my post on your blog.

Also, your argument on why the proposed legislation is unconstitutional contains many flaws.

First, you try to analogize healthcare reform with gun control. That's preposterous. Heller rested on an explicit constitutional provision -- the Second Amendment. Even so, it was still a 5-4 opinion. That case is irrelevant.

Second, you cite to Roe v. Wade (which conservatives hate) and argue that healthcare reform might violate the "right of privacy." But as Justice Scalia argued in Washington v Glucksburg (denying a right to physician-assisted suicide), the fact that the court has recognized certain personal liberties under the right of privacy, does not mean that all personal privacy interests receive protection as fundamental rights.

Also, the Court recently upheld a federal law that bans "partial-birth abortion" (Gonzales v Carhart). That law does not, according to the conservative majority, violate the right of privacy, even though it interferes with personal medical decisions between pregnant women and their doctors. The Court held that Congress had a rational basis for believing it needed to "protect" women from their bad judgment (having a partial-birth abortion). This case and the physician assisted suicide ruling defeat your "privacy" argument.

Your Commerce Clause argument is flawed because in Lopez (the Gun-Free Schools case), the Court held that possessing a gun near a school was unrelated to commerce. Receiving medical care and purchasing health insurance, however, are indisputably related to interstate commerce. Congress can also regulate things that are not themselves a part of interstate commerce (like uninsured people), if these things have a substantial effect on interstate commerce. The lack of insurance makes health insurance expensive and unaffordable for many other Americans. Also, requiring insuarance will prevent "gaming" from people who wait until they get sick to purchase insurance. Because the legislation would ban denial of coverage for "pre-exisiting conditions," it can only work with universal coverage.

You cite to Printz, but that was a completely different issue -- the 10th Amendment. In that case, Congress required states to do background checks on people purchasing guns. The Court held that Congress could not "commandeer" state legislatures and executive branches.

But in New York v. US (another 10th Amendment case), the Court held that Congress could impose requirements upon states through the "Spending Power." In other words, if Congress offers funding to states to, say, provide universal healthcare, it can also impose obligations upon states as a condition for the receipt of the money. Printz did not involve $$$ going from Congress to the states. If Congress had funded a system of background checks in the states, any states accepting the $$$ could have been required to perform the checks. Healthcare reform will provide $$$ to states; the Printz ruling is irrelevant.

Finally, your reliance on Drexel is flawed because the case rebuked Congress for trying to avoid a previous court ruling; the original ruling, however, has been overruled. Although I would accept that Congress cannot evade judicial rulings today, the Commerce Clause, the Spending Power and Taxation Power all authorize Congress to reform healthcare.

Remember: the plan is not forcing you to get rid of your insurance. Most Americans already have insurance, and they can keep it under the plan. The rest either have to buy it or get taxed to pay for universal coverage. Essentially, the mandate operates as a tax on people who do not have health insurance. Congress, however, has wide authority to tax.

Mike Stollenwerk said...

Darren, come on, 2 (Thomas & Scalia) of the 5 votes sustaining the partial birth abortion ban in Cahart would have jumped ship had the Plaintiffs had the balls to challenege the federal government's power to regulate abortion to begin with because "[w]hether the Partial-Birth Abortion Ban Act of 2003 constitutes a permissible exercise of Congress' power under the Commerce Clause is not before the Court. The parties did not raise or brief that issue; it is outside the question presented; and the lower courts did not address it. See Cutter v. Wilkinson, 544 U.S. 709, 727, n. 2, 125 S. Ct. 2113, 161 L. Ed. 2d 1020 (2005) (Thomas, J., concurring)." Gonzales v. Carhart, 550 U.S. 124, 169 (U.S. 2007).

As for Drexel, it, as Kurth Ranch noted, remains standing tall for the proposition that Congress cannot legislate beyond its enumerated power under color of taxing power.

Darren Lenard Hutchinson said...

Thomas has been more conservative than the others on commerce clause issues (see Lopez, Morrison). BUT, he is only one vote!

Also, Scalia's opinion in Raich supports MY conclusion, not yours. In Raich, he joined the liberals and, writing separately argued that Congress could regulate activity that is not "commerce" so long as this was part of a broader regulation of interstate commerce. Thomas vehemently disagreed with Scalia in his dissent. As I have said repeatedly at this point, the provision of medical services and health insurance are indisputably features of interstate commerce. Even if partial-birth abortion is not "in commerce" (which the Court never addressed), the entirety of the medical industry and the markets for health insurance are.

Also, The Spending and Taxation powers do not require a "commercial" angle. So, even though your recitation of the procedural history of Carhart is correct, it does not alter the analysis regarding healthcare rerform.

Finally, I have never disagreed with the reading of Drexel you cite. Nevertheless, because the commerce clause, spending and taxation power validate healthcare reform, Drexel is irrelevant.

dubijj said...

Rather than wasting time talking about judicial precedence, we should simply look at the documents which give this Government whatever limited authority it is supposed to have. The Government of the united States of America rests on the charter laid out in the Declaration of Independence, because that document is the reason we are not British Citizens today.

"We hold these truth to be self evident" - If the truths declared in the Declaration of Independence were ever true, then they are true today, and always have been true. Whether or not anybody today agrees with those truths, does not change the FACT that they are the foundation which authorizes our Government's existence. When determining what is, or is not, Constitutional, the Declaration of Independence is your guide. Also, a self-evident truth is a truth which is supposed to be obvious to people with common sense. In other words, if a judge rules in such a way as to violate any of the self-evident truths which were declared in that document, the judge is WRONG.

One of the self-evident truths laid out in the Declaration of Independence, was that each person is equal under the law . In practical application, this would mean that one person's Rights end where another person's Rights begin, this is the only way to achieve equality. An unalienable Right to Liberty was declared to exist, concurrent with a Right to life and Pursuit of Happiness. Since the Rights are concurrent, i.e. each individual has a Right to Life AND Liberty AND the Pursuit Of Happiness, all at the same time, the practical application must be that one person's Right to Life ends where another person's Right to Liberty begins. In other words I cannot be FORCED to provide the fruit of my labor, i.e. money, in order to provide somebody else with goods or services that they may need to preserve their life. Their Right to Life ends where my Right to Liberty begins. The Declaration of Independence declares that it is the duty of Government to protect my Liberty, not violate it by forcing me into the servitude of somebody else's who cannot afford Health Care. The Declaration of Independence also declares that if the Government fails to protect the basic Right declared therein, then the Government is supposed to be altered or abolished., whether that Government be a Democracy, a Monarchy, or a Constitutional Republic such as we have now. Government can hedge on my Right to Liberty enough to make me pay taxes for Military, Police, and Judges, in order to protect MY Liberty, but Government cannot tax me in order to FORCE me to provide help for somebody else - Servitude. This means that all charity must be voluntary.

All Socialism and Communism rests on the idea that Society can FORCE one person to the servitude of another, this is antithetical to the very foundations of this country, and the opposite of what made this country great. The 13th Amendment put the final nail in the coffin for Government imposed Socialism/Communism in this country, by making Involuntary Servitude clearly prohibited.

The proponents of "Health Care Reform" have made it clear that the goal of this reform is to provide Heath Care for people who currently cannot afford it. The goal of this "Health Care Reform" is to FORCE those who have earned enough money to pay for Health Care, to pay for those who have not. This is in fact Involuntary Servitude, a clear violation of the 13th Amendment, and the Liberty that this country was founded on. Even if the goal of this "Reform" was not to FORCE one Citizen into the Servitude of another, the FACT that their plan does in fact do this, makes it unconstitutional anyway.

If you are saying that the Government already FORCES one Citizens into the Servitude of another with programs such as Food Stamps, you would be correct. Every Government Social/Welfare/Handout Program is a violation of the Liberty that this country was founded on. Food Stamps are a violation of the 13th Amendment, and 2 wrongs do not = a Right, in any sense of the word.

Darren Lenard Hutchinson said...

Dubijj: Your essay is flawed on many levels. First, the Declaration of Independence is a political document -- not a governing document. The Supreme Court does not use it to interpret the meaning of the Constitution. The most popular documents outside of Constitution itself that are used to shed light on the meaning of the text are the Federalist Papers, which were written by the Framers. Jefferson was not a drafter of the Constitution, and he was not a member of the convention.

Second, although you describe the Declaration of Independence as establishing the liberty and equality for everyone, this is a crock. Slavery existed -- despite the Declaration of Independence. Jefferson, its author, had 100s of slaves. Women were not equal under the law; they didn't even have the consitutional right to vote until 1920.

Also, the notion that you cannot be taxed to provide goods and services for others is a terribly inaccurate statement of the law. First, even if we go with your argument that the Declaration of Independence is the governing document, it says nothing about taxation. And as a point of history, the tax protests challenged "taxation without representation." Unless you live in Washington, DC, you are represented in Congress.

More importantly, the US Constitution (the real one -- not the one imagined by many conservatives) gives Congress the power to tax in order to promote the "general welfare" of the nation. This provision gives Congress the very same power you claim it does not have!

Finally, if you think taxation is servitude, then you clearly don't know much about slavery.

Mike Stollenwerk said...

Darren, Raich does not show Scalia has gone wobbly on federalism, his concurring opinion hinges on Congress' effort to "extinguish" the interstate market in a commodity: "In the CSA, Congress has undertaken to extinguish the interstate market in Schedule I controlled substances, including marijuana. The Commerce Clause unquestionably permits this." Gonzales v. Raich, 545 U.S. 1, 40 (U.S. 2005).

Back to the original issue: Congress has no general police power to force Americans to buy health insurance, therefore it cannot accomplish the same goal under color of rasing revenue. See Drexel Furniture.

Darren Lenard Hutchinson said...

You are really trying hard here, and you're distorting Scalia's argument in the process. I never said that Scalia was "wobbly" on commerce. Instead, I said that he has never embraced the conservatism of Thomas on that issue. Notice that Thomas writes alone in Lopez and in Morrison. Scalia joins the the other conservatives, leaving Thomas as the most conservative on matters related to commerce.

Also, Scalia refused to join O'Connor and Thomas in Raich. If you think that Scalia and Thomas have the same views on the commerce clause, then you have not read the opinions closely.

In Raich, Scalia said that so long as the regulation of the "intrastate" activity -- like "being uninsured" -- is part of a broader statute that regulates interstate commerce -- like the markets for health insurance and medical services -- then Congress can reach it.

Also, in Raich, the Court considered whether Congress could regulate homegrown, home consumed, medical marijuana -- not marijuana used on the open market. So, the drug in the case was not a "commodity." It was simply a plant that the Raich grew and used in her own home. The Court nonetheless held that this noncommercial use was still reachable by Congress under the "substantial effects" test.

You have never admitted that health insurance and medical services markets are forms of interstate commerce. And you have never admitted that Congress can regulate things that have a substantial effect on interstate commerce. For those reasons, your argument continues to miss the mark.

Finally, of course Congress lacks a police power, but so long as Congress can tie its regulations to a delegated power, it can regulate in a way that resembles traditional police power regulations. Certainly, you do not believe the federal criminal code (much of which rests on the commerce clause) is unconstitutional. If you do, then your analysis is probably more outside of the mainstream than Justice Thomas.

dubijj said...

Quote by Darren H.
"the Declaration of Independence is a political document -- not a governing document. The Supreme Court does not use it to interpret the meaning of the Constitution. The most popular documents outside of Constitution itself that are used to shed light on the meaning of the text are the Federalist Papers, which were written by the Framers. Jefferson was not a drafter of the Constitution, and he was not a member of the convention."

You seem to think I believe that my Right to Liberty comes from the Declaration of Independence, I do not. The Declaration of Independence did not grant any Rights to anybody, it Declared the Rights which already existed whether anybody likes the FACT that these Rights, exist or not. The Declaration of Independence is not a political document, it is a statement of Facts/Truths. It is not a Governing document any more than Sir Isaac Newton's paper on gravity governed the laws of physics, but just like a person would be making a mistake by stepping off of a cliff and thinking the laws of gravity did not apply to them, judges make a mistake if they think they can ignore the self-evident truths which are stated in the Declaration of Independence. A self-evident truth is an obvious truth, so judges have no excuse for ignoring them. Since truth, like the law of gravity, is not a matter of popularity, it doesn't make any difference how popular the Declaration of Independence is with judges. If judges ignore the truths stated in the Declaration of Independence long enough that the slide towards tyranny goes too far, the Declaration of Independence says that it is the Right and DUTY of the people to abolish the Government, and start over. So, judges ignore the Declaration of Independence at the peril of their own job security.

dubijj said...

Quote by Darren H.
"Second, although you describe the Declaration of Independence as establishing the liberty and equality for everyone, this is a crock. Slavery existed -- despite the Declaration of Independence. Jefferson, its author, had 100s of slaves. Women were not equal under the law; they didn't even have the constitutional right to vote until 1920."

As I said in my previous post, the Declaration did not establish anything, it Declared truths which were already established by the Creator of the universe, truths which apply to all people everywhere just like the law of gravity. Your and my Right to Liberty exists whether the Declaration was ever written or not. The fact that Thomas Jefferson owned slaves made his Declarations all the more credible, because he told on himself. Owning slaves would have made the 'truths' Thomas Jefferson declared lack credibility if he had declared that all men were not created equal, or that the Government could FORCE one person into the servitude another, because he could have gained from that. Instead, when Thomas Jefferson declared that we have certain unalienable Rights which no Government on earth has authority to violate, he was giving that valid justification for why the Colonists could tell their King good-bye, because the King had abused his authority over them by violating their God given Rights. When Thomas Jefferson wrote the Declaration of Independence he had also declared the existence of Human Rights, and let the cat out of the bag on the FACT that slavery is wrong, thank God.

What person today would be foolish enough to say that Thomas Jefferson was wrong, that there are no rules which Governments must obey. If our Rights do not come from a source higher than Government, then our Rights must come from the Government itself, which means that no Government has every done anything wrong, because Government sets the standard. If Government sets the standard, then slavery and the World War II Holocaust were not wrong, because the Government at the time said it was ok.

dubijj said...

Quote by Darren H.
"Also, the notion that you cannot be taxed to provide goods and services for others is a terribly inaccurate statement of the law. First, even if we go with your argument that the Declaration of Independence is the governing document, it says nothing about taxation. And as a point of history, the tax protests challenged "taxation without representation." Unless you live in Washington, DC, you are represented in Congress."

"Finally, if you think taxation is servitude, then you clearly don't know much about slavery."

I do not think that all taxation is servitude, only taxes which are collected for Government Handout Programs amount to servitude.

All wealth is actually mental and physical labor in a stored format, certainly my paycheck is my previous labor in a stored format. When the Government takes the fruit of my labor, via taxation, for the purpose of funding Government Handout Programs, they have FORCED me into the servitude of the person who received the handout. I am the person who gets to say whether or not my servitude is voluntary or involuntary. I declare that my servitude is involuntary, this automatically makes all Government Handout Programs a violation of the 13th Amendment, which specifically forbids involuntary servitude. In actuality, all current Government Handout Programs are unconstitutional, because they put the Taxpayer in a position of Involuntary Servitude by not allowing the Taxpayer to opt out.

When people today violate the principal of Liberty by agreeing that one person can be FORCED by the Government to help another, those people put their own Liberty in jeopardy by agreeing that the Government gets to decide who will be FORCED into servitude and how much they will be FORCED to help. The amount of servitude that person can be FORCED into, is not up for negotiation, it is all forbidden. This is the principal that protects you and I.

dubijj said...

Quote by Darren H.
"More importantly, the US Constitution (the real one -- not the one imagined by many conservatives) gives Congress the power to tax in order to promote the "general welfare" of the nation. This provision gives Congress the very same power you claim it does not have!"

The agenda of a Conservative is Truth and Justice based upon Wisdom which includes the realities of Human Nature. Even if it is personally inconvenient for the Conservative himself, a true Conservative will stand by the truth. It appears to me that the agenda of Liberals is either power with Truth and Justice taking a back seat, or blind idealism disregarding the realities of Human Nature. The proof of the truth of this, is how the united States prospered under the Conservative values put in place by the founders, and how the united States continues going down hill as the power grab and foolish ideals of the Liberals replace Truth and Justice. Attacking the messenger and/or taking something out of context, are some of the most common tricks Liberals use in order to subvert Truth and Justice.

The preamble to the Constitution, where the words 'general welfare' appear, prove that all Government Handout Programs are unconstitutional. Let's take a look at those words in context:

The Preamble the united States Constitution
We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquillity, provide for the common defense, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.

Notice that in the above paragraph it states that the some of goals of the Constitution is to "provide for the common defense, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity,"

PROVIDE for the common defense,
PROMOTE the general welfare,
secure the Blessings of LIBERTY to ourselves and our Posterity,

How about that, PROVIDE defense, but only PROMOTE the general welfare. If you look at our Government today, you would think that the preamble said 'provide the individual welfare'. The preamble does not say provide welfare because that would require the Government to violate the Liberty of some Citizens in order to FORCE them to help other Citizens, and this would negate the words which come after 'general welfare' which say that the Constitution is supposed to secure Liberty.

Well, there you have it in context, the words 'general welfare' in the preamble to the Constitution cannot be referring to Government Handout Programs, because Government Handout Programs violate the God given unalienable Right to Liberty. Promoting the general welfare necessarily includes promoting things which protect Life, Liberty and the Pursuit of Happiness, as per the Declaration of Independence.

Darren Lenard Hutchinson said...

dubijj said: The agenda of a Conservative is Truth and Justice based upon Wisdom which includes the realities of Human Nature. Even if it is personally inconvenient for the Conservative himself, a true Conservative will stand by the truth. It appears to me that the agenda of Liberals is either power with Truth and Justice taking a back seat, or blind idealism disregarding the realities of Human Nature.

You say that you are promoting "truth," but you make the claim that the Constitution does not allow for the use of tax dollars to provide goods and services to others -- despite the fact that the plain language of the Constitution contradicts your assertion. I am thoroughly unconvinced that you are seeking to promote truth, rather than ideology.

Also, you are citing the "preamble," which is not a specific provision of the Constitution. I, on the other hand, am referring to Article I, which defines the powers of Congress. These powers include the following: The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States. . . .

Accordingly, the Constitution itself literally contradicts your argument.

Also, your distinction between "general" and "individual" is artificial. Imagine a situation where 1/2 of the workforce was sick with a chronic, but treatable illness. The continued sickness of these individual workers threatens the economic output of the country. How do you separate the individual from the general? Hint: You don't!

Finally, your argument that taxation for the purpose of providing services to individuals "forces you" to help others is a misguided. The only thing taxation forces you to do is to pay taxes! You have the right to contest taxes through the political process; you have the right to contest public policies through the political process. You do not have a "right" to prevent your taxes from funding otherwise valid policies. I opposed the Iraq War; I think there is a strong argument that the attack violated the UN regulations. But I cannot claim that my "rights" were violated beause the country funded the War. That's preposterous.

Darren Lenard Hutchinson said...

Dubijj: The Declaration of Independence is not the law. The Constitution is. Judges who cite the Constitution are actually doing their job!

Also, the taxation power defined in the Constution does not contain an exception for "handouts," and the 13th Amendment does not place any explicit limits on taxation. I suppose that at some point, taxation of, say, all income could violate due process, but you are not contesting the tax rate, but the usage of tax revenue. That, however, is a bankrupt argument. Nothing in the Constitution forbids Congress or state governments from providing goods and services to individuals in need.

Question: Do you think it is wrong for the government to subsidize corporate activity? Do you have an employer health plan? If so, please demand that Congress stop subsidizing it.

dubijj said...

Quote by Darren H.
"Dubijj: The Declaration of Independence is not the law. The Constitution is. Judges who cite the Constitution are actually doing their job!

Also, the taxation power defined in the Constution does not contain an exception for "handouts," and the 13th Amendment does not place any explicit limits on taxation. I suppose that at some point, taxation of, say, all income could violate due process, but you are not contesting the tax rate, but the usage of tax revenue. That, however, is a bankrupt argument. Nothing in the Constitution forbids Congress or state governments from providing goods and services to individuals in need.

Question: Do you think it is wrong for the government to subsidize corporate activity? Do you have an employer health plan? If so, please demand that Congress stop subsidizing it."

In response to your above question as to Government subsidizing corporate activity the answer is YES, it is wrong for the Government to subsidize corporate activity. I have demanded that Congress cease all of their 13th Amendment violating activity. Here is what I told my Representative at the town meeting:

Statement to Representative - Part 1
"If I were FORCED by the Government to mow my neighbors lawn, it would be a violation of Liberty. It is actually a violation of Liberty for me to be FORCED to do anything FOR my neighbor. It is proper for Government to tax me in order to fund the Military, Police, Judges and Firemen, because these taxes are taken for the protection of my Rights and property. Taxing me for the protection of my Rights and property is appotriate because it is me being made to pull my own weight, to pay my bill, but when the Government taxes me in order to pull somebody else's weight, to pay their bills such as food, housing, or medical, then Government has stepped over the line, Government has violated the Right to Liberty that it is supposed to be protecting. Socialism/Communism in this country, is illegal, and a violation of basic Human Rights where ever it exists.

To say it short and to the point: The Government is not allowed to FORCE me to DO something FOR somebody else - Involuntary Servitude. It is the duty of Government to protect me FROM other people doing something TO me, such a Socialists violating my Liberty by Forcing me to serve others.

This country took a wrong turn a long time ago when well meaning people decided that they could FORCE Taxpayers into the Involuntary Servitude of people who would take Government Handouts, and it has gotten way out of hand. When this country started doing Government Handouts, it converted my unalienable Right to Liberty into a Negotiable Privilege, subject to the whim of Government. This is the key to most of the problems we are having in our country today. If the Government respected the Right of Liberty, I would not be paying for ACORN, Abortions, the Palestinian terrorist organization Hamas, and many other things. The Fanny Mae and Freddy Mack debacle that crashed the economy would not have happened because the fruit of my labor would not have been made into collateral for bad loans. There would be no maximum wages and no minimum wages. Hospitals would no longer be forced to take non-paying patients at the Emergency Room, which causes Health Care costs to sky rocket. Taxes would be lower and jobs would be plentiful.

Note to Christians:
As for Citizens who vote for politicians that promise Government Handouts, by violating our neighbors God given Rights, we invite the judgment of God. Charity is a beautiful thing, and I highly recommend it, but charity is only charity, when it is given voluntarily. Jesus told each person to give to the poor, He did not tell us to FORCE our neighbors to give to the poor, via the Government or any other means."

dubijj said...

Statement to Representative - Part 2
"There are at least 4 ways to help those in need, Family, Friends, Private Charities, and Government. When Government tries to act like a charity, it violates the very purpose for the Government's existence, which is to protect the individual's Right to Liberty. The fact that so many people think that if the Government does not help the needy, the needy won't get help, it a testament to how Socialist this country has become, thanks to our Socialist Public Schools.

In a country which was founded on Freedom, you would expect the law to protect freedom, and it does. The short and easy to understand 13th Amendment to the US Constitution makes Slavery and Involuntary Servitude unconstitutional. All Government Social/Welfare/Handout/Programs put the Taxpayer into a position of Involuntary Servitude to those people who receive Government Handouts, because the Taxpayer cannot opt out. Even the person who makes so little money that they do not pay incomes taxes, has their labor harnessed by paying higher prices for the things they buy due to corporate taxation. Once the Government starts taking care of individuals, the Taxpayer is FORCED into a position of Involuntary Servitude.

The foolishness of taking the wrong fork in the road a long time ago has become obvious in this country. Violating Liberty started small and it happened very slowly at first, so maybe our Representatives do not realize the 13th Amendment violation. It is proper to petition the Government for redress of grievances just as our founders did before they had to separate themselves. Be we have something the founders didn't have, the law of the land is on our side, and the self evident truth of our Right to Liberty has been Declared, any court ruling to the contrary not withstanding.

Congresswoman Fallen, I hereby notify you that the Servitude I am under, because of every Government Social/Welfare/Handout/Bailout Program, is Involuntary. I am officially claiming my 13th Amendment Right in this public forum. It is now incumbent upon you, by your oath of office, to dismantle the Welfare State in an orderly fashion. I recommend that you start by introducing a bill which puts a moratorium on any new recipients.

I also recommend that taxes are lowered to the point of diminishing returns, about 23% total for all taxes combined for the average person, so that this economy can get moving and create the jobs people will need in absence of the Social Safety Net/Hammock.

Ask Question to others at the meeting: Every Taxpayer here is being made to work for people who receive Government Handouts, who else here is willing to say that your Servitude is Involuntary?

Congressman Fallen, do you think that the founders of this country were correct when they said that we had certain unalienable God given Rights including Liberty, and are you going to stand up for those Rights?"

Robert said...
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Robert said...

Darren:
Under your interpretation of article 1, specifically "The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defense and general Welfare of the United States. . . ." there is no limit to what congress can do if it deems it for the general welfare of the United States.
I find it a tad bit foolish that the founding fathers would go to the trouble of enumerating the powers of the federal government, then allow it to circumvent those restrictions with 1 sentence.
I truly believe that if the intent of the founding fathers were for the government to provide a "nanny state" then they could have worded the constitution much differently to make that obvious to any reader.
This is not what the founding fathers intended for this country, and all one needs to do is look back on our history to see that is true. There is a reason why social programs weren't popular before the 20th century. That is because the politicians of the 19th century understood that the role of the federal government was to safeguard the freedoms granted by the constitution. Their powers were few and spelled out, anything beyond that was up to the states and the people.
Taxes have historically been used to generate revenue and later used to discourage behavior also known as a "sin tax". Never in the history of this country has a tax been used to compel behavior of any kind. Dress it up any way you want, this is a fine for failing to purchase a good or service. Calling it a "tax" doesn't make it so if it's being levied to compel a desired behavior. Hopefully the Supreme Court will see it as such and strike down this awful piece of mandatory social legislation if it passes.

Darren Lenard Hutchinson said...

Robert: You are misinterpreting my post. My discussion of the tax power is not as open-ended as you suggest. My discussion of the tax power was specifically linked to the Commerce Clause discussion.

Second, I find your "sin tax" distinction weak. The problem lies in the unsophisticated treatment of action versus inaction. When the government punishes behavior (like smoking), it is, in fact, trying to force you to take affirmative steps to cease this behavior. That sounds quite similar to the point of the insurance tax -- it encourages folks to insure their utilization of medical services.

Robert said...

How would you rationalize government mandated health insurance falling under the commerce clause?

Darren Lenard Hutchinson said...

Robert: did you actually read this article?

Robert said...

I did read it, several times. What I don't see is the authority of congress to regulate an activity that by law is intrastate. Some people don't know this, but health insurance policies can't be purchased across state lines.
Something else I didn't see when reading was the similarities between (wickard v filburn) and the current situation. Before I begin I want to say that I disagree with the Wickard decision in its entirety. The intent of the founders was to allow congress the power to make trade between states "regular", not tell John Smith how much he can grow in his field because it "might" have an effect on national prices. If that had been their intent other similar laws would have been upheld prior to Roosevelt's threats to pack the court with like minded judges.
Even if Wickard was correctly decided, Filburn had to actively a) grow a crop covered under the AAA of 1938. b) grow more than his "allotment".
Failing to satisfy both of these conditions would have put him out of the reach of congress, yet under the current health insurance reform legislation, just being an American and sitting on your hands is enough to be "taxed" (fined). A person living in the woods completely isolated and self sufficient would run afoul of the law for failing to purchase a health insurance policy even if its their desire to have no human interaction at all.
How, as a professor of constitutional law can you reconcile this legislation with the intent of the founders? Do you really believe that it was their intent to create a "nanny state", and if this was in fact their intent, what was the purpose of allowing the states to exist if the federal government was suppose to micro manage the lives of all Americans?

Robert said...

I wish you could edit posts.

"Failing to satisfy both of these conditions would have put him out of the reach of congress" should have read:
Failing to satisfy either of these conditions would have put him out of the reach of congress

Darren Lenard Hutchinson said...

Robert: Since the very first commerce clause ruling by the Supreme Court (Gibbons v Ogden), the Supreme Court has held that Congress can regulate "intrastate" activities that "affect" commerce. This is called the "affecting commerce" rationale. This rationale survived even the most conservative period in the Court's interpretation of the commerce clause -- and it survives today (endorsed by the court's conservatives). Only one justice would abandon it -- Justice Thomas.

Remember, the "necessary and proper" clause allows Congress to do things that are necessary and proper for the execution of its enumerated powers. The Court's theory finds that regulating intrastate activities is sometimes "necessary and proper" for Congress effectively to regulate interstate commerce.

Robert said...

I believe Justice Thomas has it right.

These are quotes from his dissent in Gonzales v. Raich:

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."

If the majority is to be taken seriously, the Federal Government may now regulate quilting bees, clothes drives, and potluck suppers throughout the 50 States. This makes a mockery of Madison's assurance to the people of New York that the "powers delegated" to the Federal Government are "few and defined", while those of the States are "numerous and indefinite."

I fail to see an interstate component in the purchase in health insurance and my refusal to purchase said insurance has no effect on the market at the national level.

As you may have noticed, I am a Libertarian and as such am highly skeptical about the federal governments involvement in issues that can be handled by the states.
The federal government has a proven track record of waste and mismanagement. Once the federal government has taken over an area typically handled by the states, costs skyrocket and performance takes a nosedive.
Our students rank near the bottom in the industrialized world while we spend more than any other country in education.
Social security has to cash in I.O.Us to meet current obligations (due to funds being diverted to other programs) and for the first time since the 1980s it will pay out more than it takes in.

It makes me want to cry when I see our nations debt in the trillions of dollars and in the face of that our "representatives" want to spend more money and inject themselves further in to our daily lives. How can any sane American condone this kind of reckless behavior?

Darren Lenard Hutchinson said...

Robert, I would not accept Thomas' arguments so quickly - especially after just reviewing some quotes. First, he is the only Supreme Court justice in US history to announce this rule.

Second, he does not fully grapple with the Necessary and Proper clause. That clause has always given Congress implied power to the extent necessary to carry out its enumerated powers. This means that if Congress can show a connection between the intrastate activity and interstate commerce, then the Court will validate the regulation. The Constitution is not in all respects a libertarian document. It certainly has those aspects, but it definitely contemplates regulation - whether we like it or not.

Ironically, conservatives who advocate the tougher view of commerce want the Court to go against the legislature, which is a "sin" under most conservative views of the Court. Suddenly, "judicial activism" is fine.

Finally, Thomas does not grapple with the extent to which having a "legal" market for some marijuana will increase the amount of marijuna available for illicit purposes. This is the argument that got Scalia to join the liberals. The prohibition was a necessary and proper part of the statute prohibiting the possession and trafficking of marijuana. This strikes me as sound jurisprudence. If you dislike it, then take it up with Congress. As liberal as I am, I do not believe the Court must implement my own view of society.

Robert said...

I have read more than the quotes I have selected, I have read the entire opinion both concurring and dissenting. Through a broad interpretation of the commerce clause, there is no limit to the areas of our lives that Congress can regulate. This is NOT what the founders had envisioned as the role of the federal government, and I dare you to show me any writings of the time that would contradict that.

I don't want Congress to implement my view of society, I want them to implement the founders views.

Darren Lenard Hutchinson said...

The founders views are not uniform. Consider the debate over the federally chartered bank. People act as if the Framers spoke on one accord. That is a terrible myth. They had some of the same arguments we have today. Quite often, demanding that people "implement the founders views" is a simple smokescreen. Those views are typically unclear and/or mixed.

If anything, the Commerce Clause, however, was designed to augment federal power. The Articles of Confederation was horrific on the matter of a national economy.

Second, "broad" is a matter of interpretation. But assuming my view is broad, you still have not grappled (just like Thomas) with the Necessary and Proper clause. Assuming, as you must, that this clause gives Congress implied powers that are necessary and proper for the execution of enumerated powers, isn't this textual justification for regulating "intrastate" activities (which is the original question you asked)? Whether or not you think this is broad is a nonissue. The FRAMERS clearly extended Congress the power over "interstate commerce" and anything else that is necessary and proper for the regulation of interstate commerce. Nothing in Thomas' rulings or libertarianism can change this.

Darren Lenard Hutchinson said...

PS: I have read virtually every commerce clause ruling issued by the Supreme Court. Using one case is not entirely illuminating. I am speaking from over a century of Supreme Court jurisprudence.

Robert said...
This comment has been removed by the author.
Robert said...

Apparently a federal judge thinks this health care law may violate the constitution.

http://jurist.org/paperchase/2010/08/federal-judge-allows-virginia-health-care-suit-to-proceed.php

On a side note, I find it funny how Obama states on national television that this health care mandate isn't a tax yet defends it in federal court as a tax.

http://blogs.abcnews.com/george/2009/09/obama-mandate-is-not-a-tax.html

I love how Obama equates this health care mandate to auto insurance. It would appear he forgot only people that drive an automobile need to purchase auto insurance while having a pulse is enough to bring you under the thumb of his health insurance scheme.

Darren Lenard Hutchinson said...

Robert: I suspect that if the case made it to the Supreme Court, it would divide the justices. So, the fact that a district judge found that there was enough to Virginia's argument to let the case go forward is not surprising at all.

Also, Obama is not a DOJ lawyer. He made that statement as a politician. The lawyers who argued the case were smart to ignore his statement.

Robert said...

Obama was a professor of constitutional law at the University of Chicago for 12 years prior to his being elected to the Senate. He knows what a tax is.

He knew it was a tax from the very beginning, but would never be able to sell it to the public (not that the public at large was sold on the idea anyway) as such.

Darren Lenard Hutchinson said...

Robert: All I said is that Obama is a politician. It does not matter that he once taught con law. By the way, the government argument essentially follows the logic of my blog entry -- that BOTH the commerce and taxation power allows Congress to impose the mandate. Either/or analysis is quite common in legal arguments.

Robert said...

I disagree, it does matter than he taught constitutional law. What it means in essence is that he knowingly lied to the American public to get his health care mandate passed. He KNEW, it was a tax, and would have to be defended as such.

This is a quote from the Federalist #45

http://www.constitution.org/fed/federa45.htm

James Madison wrote: "The powers delegated by the proposed Constitution to the federal government, are few and defined. Those which are to remain in the State governments are numerous and indefinite. The former will be exercised principally on external objects, as war, peace, negotiation, and foreign commerce; with which last the power of taxation will, for the most part, be connected. The powers reserved to the several States will extend to all the objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people, and the internal order, improvement, and prosperity of the State."

I would love to see what he would say about the government he helped create. I have doubts he would be pleased.

If the Supreme Court upholds this law then there is absolutely no limit to the power of the federal government, they can exercise control in any area they choose under the distorted interpretation of "To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;"

Darren Lenard Hutchinson said...

I disagree. Slippery slope arguments sound like "hysteria" to me. This argument has been made repeatedly within law, and it is always proven wrong.

You have no idea how Madison would approach this subject. That's the problem with extracting quotes from history as if they reprented some universal truth. Besides, I could give you other quotes that support greater flexibility (e.g., Hamilton).

Obama as president is a politician - not a law professor or lawyer. Period. He does not practice law when he gives speeches.

I have blogged on the fact that the DOJ defended it as a tax -- despite Obama's previous statement. So, I understand the disconnect. But when government lawyers sit down to decide what approach is best from a legal perspective, they often have to ignore what politicians have previously said about the law. This is the way law works. You are approaching this issue as if Obama had some secret legal strategy mapped out, but told the public something else. HIGHLY doubtful. I doubt he even taught taxation issues; most first-year con law classes don't even cover the subject.

Chuck said...

The arguments have been refined since the Dissenting Justice opined about the constitutionality of the individual mandate. Yes, both health care and health insurance are markets that participate in interstate commerce------for those who are active in those markets.

There has been no SC case to date in which a person or business which is not CURRENTLY active in an area of commerce was mandated to purchase a product or service. The possibility or even the probability of FUTURE activity in a market is not enough to justify a Congressional mandate to BECOME active in a market by buying a product or service.

The precedents are on the side of the opponents. The legal stretches and attempts to expand Commerce Clause jurisprudence are on the side of the government. Witness the attempts at trying to equate "decisions" and "choices" NOT to be active in either the insurance or the health care markets with "activity". As Judge Vinson rightly observed, the torturing of language and logic is truly Orwellian.

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