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Obamacare: could it actually be declared unconstitutional?


107 replies to this topic

#1
Pong Messiah

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So is the White House just pretending to be confident in the face of "the worst case of judicial activism in the history of the universe" or is there a real risk Obamacare will be declared unconstitutional?

"Because the individual mandate is unconstitutional and not severable, the entire act must be declared void."

OMG.

And if it does get thumped in the Supreme Court, what are the chances that it will actually backfire, and lead to a full-on communist health care system (which would not be unconstitutional)?

:eek:

#2
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The last time I commented on this was in this thread. Don't have a whole lot to add, except the following:

1. This is turning into an inter-circuit mess. Which is actually a good thing, because the quicker we get conflicting decisions on this, the quicker we can get this to the Supreme Court and get the final say.

2. How the Supreme Court will rule on this will likely depend on Kennedy's vote. More analysis in how I think he'll vote (and the other justices) in the above link.

3. Whether this decision is good or bad is debatable. But I don't think it's judicial activism. Judicial activism, as defined by Black's Law, is when "judges allow their personal views about public policy, among other factors, to guide their decisions." Sometimes it can be hard to determine when a decision is activist, but some evidence could be if the decision "invents" new rules or rights not found in the constitution or existing precedent. Here, that didn't happen- existing doctrines were used. Judge Vinson might have incorrectly applied the commerce clause and case precedent, but that doesn't necessarily make the decision activist, unless we have more evidence to suggest he incorrectly applied said law intentionally due to political beliefs. Such evidence would be, for example, if we could find previous cases where Vinson applied the commerce clause in a vastly different way to a more "conservative" piece of legislation.



#3
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For the lazy, here is what I said on what I believe the Sup Ct will do, which I still think holds true at this point. Hopefully JM comes back so we can continue the discussion we started.

Obviously this will probably eventually land in the Supreme Court. The decision will likely come down to what Kennedy thinks (I foresee the other judges voting along "party lines"). Of relevance might be the last large Commerce Clause case to be decided, Gonzales v Raich. Now in that case, Kennedy voted with the majority (to uphold Federal power), which is perhaps telling. That case dealt with Federal marijuana laws, but I think the decision is still quite relevant since it applied Wickard, a case that will undoubtedly have to be dealt with in the Supreme Court's ruling, as that case is most directly applicable to national schemes to control a market, and mandated individual action. In that case, the Supreme Court ruled the Fed Govt could mandate an individual farmer to not produce wheat, so as to not disturb the national price fixing during the New Deal.

What would be awesome, is if the Supreme Court decided to use this as an opportunity to just overrule Wickard, which is probably the worst Supreme Court decision ever. More likely, if the USSC overrules Obamacare, they will distinguish this case from Wickard somehow. Of course, Kennedy is still a bit of a wild card. Whether he finds a difference between applying Wickard in terms of marijuana, and in terms of health, will be interesting to see. More interesting still, will be seeing how Scalia gets out of this one. He had no problem applying Wickard to a federal program he liked (marijuana laws), and we heard not a thing about states rights then. I am looking forward to seeing how he manages to get out of applying Wickard in this case, since obviously he won't be voting for Obamacare.

The only truly reliable vote, will probably be Thomas. I can already predict what he'll say, and that is that Obamacare is an overreach within the Commerce Clause. I doubt he will apply Wickard; he didn't in Gonzales, and held marijuana laws to be a matter of states rights. Love or hate em, this is why Thomas is the best judge on the bench. He's predictable and doesn't make up new law each time a case comes to him.



#4
James Madison

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I am dubious Gonzales v. Raich can satisfactorily indicate or tell us how Kennedy is going to vote, or likely will vote, should the health care law find its way to the U.S. Supreme Court.

I Kennedy, and the other 4 conservative justices on the Court, will be able to look at the Wickard and Gonzales cases and have no trouble distinguishing both from the health care mandate. Neither Wickard or Gonzales involved an exercise of federal power mandating people purchase a service or enter into a contract for services.

I do not know how Kennedy will vote but I do believe it will be a 5-4 vote and I would not be surprised if Kennedy voted against this legislation.

#5
El Chalupacabra

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So is the White House just pretending to be confident in the face of "the worst case of judicial activism in the history of the universe" or is there a real risk Obamacare will be declared unconstitutional?

"Because the individual mandate is unconstitutional and not severable, the entire act must be declared void."

OMG.

And if it does get thumped in the Supreme Court, what are the chances that it will actually backfire, and lead to a full-on communist health care system (which would not be unconstitutional)?

:eek:


I think its quite possible that only the parts that come in conflict with the constitution (if any) will be thrown out.
I don't think the whole thing will be deemed unconstitutional.

#6
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Court of Appeals for the 11th Circuit ruled today that Obamacare was unconstitutional in the case, Florida v. US

The opinion is here

It is a 300 page decision; haven't had the chance to thoroughly read it over, but I plan to this weekend and then post some thoughts.

#7
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JM

I am dubious Gonzales v. Raich can satisfactorily indicate or tell us how Kennedy is going to vote, or likely will vote, should the health care law find its way to the U.S. Supreme Court.

I Kennedy, and the other 4 conservative justices on the Court, will be able to look at the Wickard and Gonzales cases and have no trouble distinguishing both from the health care mandate. Neither Wickard or Gonzales involved an exercise of federal power mandating people purchase a service or enter into a contract for services.


I don't know why you keep saying this. I agree that Raich may not indicate how Kennedy will vote, but that's not what I was arguing. What I was arguing was that Raich is going to have to be dealt with somehow, and by extension, Wickard.

You keep saying distinguishing, I call bullsh-t on that. Scalia and Kennedy brought back Wickard from the dead cause they don't like pot-smoking hippies, pure and simple. Well at least Scalia doesn't, who knows what Kennedy was thinking. It was an anti-federalist, completely bullsh-t decision, and I wanna see how Kennedy, Scalia, et al., bullsh-t their way outta having to apply Raich.

Probably by making up some bullsh-t like you suggest- i.e. the difference between having to purchase something vs. not having to sell wheat, but that's a stupid, bordering on solely semantic difference, and you damn well know it. You really think Obamacare is more intrusive than the federal government telling Filburn he can't grow wheat on his own goddamn f-cking property, for his own private consumption. Get the f-ck outta here. Wickard was a stupid and unjustified decision, and the fact that Scalia resurrected it from the annals of shameful jurisprudence is something he's gonna have to deal with.

Only judge that can get out of this clean- Thomas. He didn't join in Scalia's Wickard socialist bandwagon, so he and he only has the right to decline to apply Wickard now. Everyone else has some 'splainin to do.

#8
James Madison

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It was an anti-federalist, completely bullsh-t decision, and I wanna see how Kennedy, Scalia, et al., bullsh-t their way outta having to apply Raich.


I think I have told you how Raich and Wickard can be addressed by the conservatives on the Court seeking to render the mandate unconstitutional. Raich and Wickard are easily distinguishable because neither decision ever addressed the factual issue of the federal government mandating people purchase a product or enter into a contract under the commerce clause. In other words, this is a case of first impression, the issue is novel, never addressed before by the Court, and consequently, no precedent dictating or controlling the outcome. Hence, both Raich and Wickard do not compel a particular outcome, and neither decision requires the Court to find the mandate constitutional, since neither decision ever addressed a factual scenario remotely close to the individual mandate. Hence, the conservatives can rightfully claim they do not fell constrained by precedent and precedent does not compel or dictate an outcome of constitutionality for the individual mandate. As a result, the conservatives can legitimately assert, lacking precedent, they can analyze the individual mandate without the constraints of precedent.

The commentary above, if relied upon by conservatives, as I suspect it will be in some manner should they render the mandate unconstitutional, is not B.S. If you are inclined to think otherwise, I'd be most interested in knowing why.

You keep saying distinguishing, I call bullsh-t on that. Scalia and Kennedy brought back Wickard from the dead cause they don't like pot-smoking hippies, pure and simple. Well at least Scalia doesn't, who knows what Kennedy was thinking. It was an anti-federalist, completely bullsh-t decision, and I wanna see how Kennedy, Scalia, et al., bullsh-t their way outta having to apply Raich.


First, your claim Scalia and Kennedy resurrected Wickard from the grayeyard is an odd claim considering Wickard has been a part of commerce clause jurisprudence, untouched, unweakened, and undiminished since the Wickard decision over a half century ago. They could not have possibly resurrected Wickard from the "dead" when Wickard has never been deceased since the case was decided over 50 years ago.

Second, the opinion was written by Justice Stevens, not Scalia or Kennedy. So pray tell how exactly they can be attributed with "resurrecting" Wickard when, well, neither one of them wrote the freaking opinion? You may respond by stating they "voted" for the majority decision, but in the case of Scalia, he merely voted in the "outcome" and did not agree with the reasoning of the majority, hence his concurring opinion (more on Scalia's concurring opinion below). Futhermore, since neither one wrote the opinion, and Kennedy did not compose a concurrence, how exactly do you know the motives for Kennedy's vote in favor of Stevens' decision? You can repeat, ad nauseum, my position is B.S., but upon closer inspection and scrutiny, your rebuttal is nothing but smoke and mirrors, guesses, unsupported claims of what motivated 2 justices on the Court in regards to a particular case, and not enough toilet paper availbe to wipe up the crap in your rebuttal.

Now, had you read Scalia's concurring opinion carefully, you'd notice he never mentioned Wickard, well, he relegates Wickard to a footnote. Scalia's entire concurrence is replete with references to prior U.S. Supreme Court decisions and conspicuously absent among those cases he explicitly referenced in his concurrence is Wickard. Wickard was of such importance to Scalia's concurring opinion that he designated it for a footnote reference. Wickard did not serve as the basis for Scalia's concurrence and indeed, Scalia's concurrence is not an interpretation of Wickard. It is indeed odd to claim, as you did, Scalia resurrected Wickard in A.) A decision he did not right, B.) A decision in which he merely agreed with the "outcome" but not the reasoning of the Court and C.) HIs concurrence is not predicated upon any interpretation of Wickard and D.) Scalia's concurrence limits Wickard and its progeny. It is impossible for Scalia to have resurrected Wickard from the crypt. You should have read his concurrence first before commenting upon it.

I might also add, Scalia's reference to Wickard in his footnote is to address some confusion, and in doing so, provides some explication of Wickard, but this explication would constitute as a potential limitation of Wickard, to any expansion of it, and certainly not any resurrection of the decision i his concurrence.

According to Scalia's concurrence, the substantially affects commerce test was decided under the doctrine of the necessary and proper clause, and the substantially affects commerce test is not a power inherent in the commerce clause of the U.S. Constitution but rather a doctrine used to justify Congress' ulta vires by the necessary and proper clause. Scalia made this point without directly citing Wickard in his concurrence but rather cites a host of other decisions to support his contention. The point I am making is Scalia's reading of the caes law actually imposes some limitations on the substantially affects commerce clause test. Scalia's entire concurrence can properly be construed as a conscious effort to impose some limitations on the substantially affects commerce clause test. Scalia's concurrence actually provides conservatives, and the Court, an opportunity to render as unconstitutional Congressional regulation of commerce if it is construed as not being necessary and proper. In other words, it is odd to suggest, as you do, Scalia resurrected Wickard when Scalia's concurrence was not based upon Wickard, can best be understood as limiting Wickard and its progeny, and as a result, his concurrence has the potential to limit the applicability of the decision to a greater extent than under Wickard itself.

So, your remarks about Scalia aren't supported by the facts in the Raich decision. In fact, Scalia's is doing the exact opposite of what you indict him of doing here in this thread.

To comment on another ancillary point...while you may loathe the Raich decision, the reasoning of the decision is consistent with Wickard. As a matter of fact, it is almost impossible to reach a contrary outcome if relying upon the reasoning of Wickard. So on what basis do you deride the Raich decision as B.S.?

Probably by making up some bullsh-t like you suggest- i.e. the difference between having to purchase something vs. not having to sell wheat, but that's a stupid, bordering on solely semantic difference, and you damn well know it


My goodness...re-read the Wickard decision before commenting on it, as opposed to inaccurately recalling what the decision itself was about. Wickard did not involve not having to sell wheat...rather the decision involved a federal statutory scheme limiting how much farmers could grow...we can't have an intelligent dialogue when one party to the conversation can't even get the facts correct. Furthermore, a limit on how much wheat a farmer could grow is different from compelling the farmer to buy a product, good, or service. There is a fundamentally important difference between a limitation on growing some good and being compelled to purchase something. To suggest, as you do, a "semantic difference" between the two is non-sense and irrational. You may not like the distinction, which is perfectly okay, but at least come up with a better objection to it, as opposed to this stupid, non-sense, illogcal and irrational claim of "semantic difference." A limitation on growing something and being compelled to buy something is not a semantic difference but a difference in kind, type, and degree. I hope you have a better objection than the bullcrap you just espoused.


You really think Obamacare is more intrusive than the federal government telling Filburn he can't grow wheat on his own goddamn f-cking property, for his own private consumption. Get the f-ck outta here.


I couldnt' care less whether it is more or less intrusive...this isn't the issue and if you want to argue with yourself in this thread whether it is or isn't more intrusive, then knock yourself out. However, this was not, has not been, and is not my argument. I might also add, even if I accepted as true your notion Wickard is more intrusive than the individual mandate, or as intrusive, this tell us nothing about the constitutionality of the mandate. Commerce clause jurisprudence, thankfully, is not predicated upon considerations of intrusiveness.


Wickard was a stupid and unjustified decision, and the fact that Scalia resurrected it from the annals of shameful jurisprudence is something he's gonna have to deal with.


As I said previously, this is non-sense. It is impossible to resurrect something which is not dead, and Wickard has never been deceased. I might also add Wickard has never come close to being on life support. Scalia did not write the Raich opinion but rather a concurrence, Scalia's concurrence is not consistent with the Wickard decision, and indeed proposes some limits on Wickard and its progeny, and his concurrence is not predicated upon Wickard.



He didn't join in Scalia's Wickard socialist bandwagon, so he and he only has the right to decline to apply Wickard now.


This notion is based on your non-sense reliance of "semantic difference." While it may be true Scalia and others may have to explain why Wickard and Raich do not compel the Court to hold the individual mandate is constitutional, your pitiful remark of "semantic difference" certainly does not suggest this is the case. Well, as a matter of fact, few remarks if any, make any showing why Scalia has to explain why Raich and Wickard do not apply.

I do not think, at the time you made your post, you properly understood the Raich decision, Scalia's concurrence, or who in fact wrote Raich. Surely you can conjure up a better rebuttal?

Edited by James Madison, 10 September 2011 - 03:19 PM.


#9
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Oh JM, my dear. I have waited nearly a month for this response, and I have to say, you did not disappoint. I haven't seen you this fired up since the Citizens United thread!

Anyways, for clarity's sake, I'm organizing this reply into the 3 main areas of discussion:
A. Scalia and Raich
B. Wickard and Raich
C. Wickard and Obamacare

A. Scalia and Raich

Yes, Stevens wrote the opinion in Raich, I know this. First, a note on Kennedy. Kennedy voted with Stevens, with no concurring opinion, which suggests that either a) he disagreed with Stevens but was too lazy to write an opinion, or b) he agrees with Stevens' reasoning. Otherwise, he would've wrote a concurring opinion, or something, and as such, I expect to see Kennedy explain how he gets out of applying Raich, if he writes an opinion on Obamacare.

Now as far as Scalia goes. First off, while he may not have gone on about Wickard in the same way that Stevens did, that is no less damning. Yes, he wrote a concurring opinion, but it was a concurring opinion, not a concurring opinion in part, and a dissent in part, or a straight out dissent. Obviously Scalia doesn't disagree completely with Stevens in this case. And besides, don't you find it rather curious that, just years after Lopez and Morrison, we have a case that brings back Wickard, which is perhaps the most expansive reach of federal power in the history of US jurisprudence, and an opinion that's written by Stevens of all people? Jesus Christ, JM, Scalia jumped on Stevens for probably 20 years at every given opportunity, especially when it came to 4th amendment cases... and yet here.. totally chill with Stevens.

We don't see anything like Thomas' opinion, where he writes:
"Certainly no evidence from the founding suggests that "commerce" included the mere possession of a good or some 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...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."

And O'Connor, discussing federalism and the laboratories of states:
"if I were a California legislator I would not have supported the Compassionate Use Act. But whatever the wisdom of California’s experiment with medical marijuana, the federalism principles that have driven our Commerce Clause cases require that room for experiment be protected in this case."

What of Scalia, JM? Well, he doesn't seem to have any problem with this whatsoever. Keep in mind Rehnquist dissented as well, and given that he WROTE Lopez and Morrison, I think that says something. Admit it man, Scalia is pulling some shuck and jive here. Scalia, indeed, isn't really a conservative. He is, rather, a Republican, and an unprincipled one at that- conservative when it suits his ideology, and all for big government when it does not. Look, I don't like pot smoking hippies either. They smell bad, are poor dressers, and are generally pretty retarded. But I know an overreach of federal power when I see it, and Raich was it.

Yes, I do know Scalia tries to make a distinction. And while you label my last post pathetic, what is truly pathetic is Scalia's attempts to weasel his way out of this. First, yes indeed Scalia just discusses Wickard in a footnote, but that footnote is all I really need to make my point, as in the footnote Scalia seems to have no problem whatsoever with Wickard. You say he suggests a limitation to Wickard. May I ask, excatly how? I'm not seeing it.

Second, Scalia is unfair to, and inadequately responds to, O'Connor's dissent. I understand completely his argument JM- that the necessary/proper gives birth to the substantially effects test; and that the test reaches non-economic intrastate activity. My question for you is two-fold: a) how in the world is Scalia's opinion a limitation upon substantial effects, and b) how can Scalia's application of substantial effects in this case, not be seen as complete undercutting of the primary thrust in Lopez and Morrison.

In other words JM, I think O'Connor is on to something when she states that Scalia's view of substantial effects reduces Lopez and Morrison to a "drafting guide."

I'm not buying your argument that Scalia actually limits substantial effects in any way. He says in one paragraph that proper application of the test would not undercut what is truly national and local, and then in the next paragraph, basically uses the test to reach a non-econoimc, purely local activity... because why? Well, it would undercut national regulation. And how? Because a small bag of pot is a moments notice from the interstate market? SERIOUSLY? Go back and look JM- that's his justification, and we both know it's retarded. Whether Scalia admits it or not, this is the same sort of reasoning that the government relied upon in Lopez and Morrison.. that bullsh-t about how non-economic activities in the aggregate, somewhere down the line, you know... eventually get to interstate commerce. It's too attenuated, and if you give O'Connor's dissent a fair reading, I think you'll agree.

Of particular note is her quotes here: "the Court sanctions an application of the federal Controlled Substances Act...without any proof that the personal cultivation, possession, and use of marijuana for medicinal purposes, if economic activity in the first place, has a substantial effect on interstate commerce...the case before us is materially indistinguishable from Lopez and Morrison."
And note: "Today’s decision allows Congress to regulate intrastate activity without check, so long as there is some implication by legislative design that regulating intrastate activity is essential (and the Court appears to equate “essential” with “necessary”) to the interstate regulatory scheme."

Don't you see what she's on to here? Scalia, by implication, seems to agree with the natural consequence that O'Connor fears and he basically seizes the opportunity to expand federal power in just this way. If you think about it, Morrison could've been drafted in a way that would implicate some fictional "interstate market," but that would be an instance of form over substance. Scalia, by virtue of his concurrence, seems to be ok with that. O'Connor echoes that point here: "Lopez stands for nothing more than a drafting guide: Congress should have described the relevant crime as “transfer or possession of a firearm anywhere in the nation”–thus including commercial and noncommercial activity, and clearly encompassing some activity with assuredly substantial effect on interstate commerce. Had it done so, the majority hints, we would have sustained its authority to regulate possession of firearms in school zones."

Finally, note where O'Connor f-cking schools Scalia right here: "something more than mere assertion is required when Congress purports to have power over local activity whose connection to an intrastate market is not self-evident. Otherwise, the Necessary and Proper Clause will always be a back door for unconstitutional federal regulation....Indeed, if it were enough in “substantial effects” cases for the Court to supply conceivable justifications for intrastate regulation related to an interstate market, then we could have surmised in Lopez that guns in school zones are “never more than an instant from the interstate market” in guns already subject to extensive federal regulation...There is simply no evidence that homegrown medicinal marijuana users constitute, in the aggregate, a sizable enough class to have a discernable, let alone substantial, impact on the national illicit drug market–or otherwise to threaten the CSA regime."

BAM. I need say no more. So much for Scalia's f-cking retarded "pot is a moment away from the interstate market" bullsh-t.

B. Wickard and Raich

You state that Wickard necessitates the decision in Raich. My my my, JM... to what lows you will go to defend your home boy Scalia. I have two responses, and two responses are all I need.

First, even if that was the case, one could use the opportunity to OVERRULE the case. Wickard was, to borrow a phrase of Kennedy: "not correct when it was decided, and it is not correct today. It ought not to remain binding precedent."

Second, O'Connor deals rather nicely with Wickard. There are two arguments here-

a) Wickard actually involved an effect on the interstate market: "consumption of homegrown wheat was the most variable factor in the size of the national wheat crop, and that on-site consumption could have the effect of varying the amount of wheat sent to market by as much as 20 percent," contrast to Raich: "Nor has it shown that Compassionate Use Act marijuana users have been or are realistically likely to be responsible for the drug’s seeping into the market in a significant way."

b) Wickard carved out an exception for small producers, whereas Raich was sweeping in scope: " The AAA itself confirmed that Congress made an explicit choice not to reach–and thus the Court could not possibly have approved of federal control over–small-scale, noncommercial wheat farming. In contrast to the CSA’s limitless assertion of power, Congress provided an exemption within the AAA for small producers."

C. Wickard and Obamacare

Let me point out, as a preliminary manner, that politically speaking, I am lukewarm on Obamacare at best. Although I am Republican in the moderate/liberal sense, and recognize that Obamacare really is just Bob Dole's old health plan, I am not particuarly convinced that the individual mandate will have much of an effect on the health care costs.. primarily for the reason that I don't think the tax penalty serves as a sufficient disincentive to economically shape the market.

But. As a constitutional matter, I am having difficulty seeing exactly why this case is substantially different from Wickard. If I was on the bench, I would probably rule Obamacare unconstitutional, but I would do so by overruling Wickard. You go on and on... and then go on and on some more... about one point really. The difference between buying something and being prohibited from doing something. Yeah sure, I'll agree that distinction is one of first impression, but Wickard, assuming its not overruled (which it should be), provides ample guidance to the Court and has to be dealt with.

You state this is a fundamental difference. I really don't think so JM. It's a semantic difference. I'll agree with you that it's different in "kind," but not really in type and certainly not in degree. You write that "Commerce clause jurisprudence, thankfully, is not predicated upon considerations of intrusiveness."

No no NO, JM. That's a central consideration.. in fact, one could say the third prong of Lopez, i.e. the substantial effects test, essentially turns on a degree of intrusiveness. Consider Lopez and Morrison.. one of the biggest problems the Court had was that the statutes were essentially criminal laws that affected activity that was non-economic, and only reached an interestate market in some attenuated, aggregate fashion. Essentially the court is saying the federal govt is intrusive- i.e. over-reaching into a traditionally state role of government, and coming close to enacting a federal police power.

Florida seems to echo my point there, by stating "two overarching considerations within the Supreme Court’s Commerce Clause jurisprudence: (1) preserving the federal-state balance and (2) withholding from Congress a general
police power."

So yes, while Lopez gives us a three-prong test, we must also consider the crux upon which all Commerce Clause rests upon, those two principles above.

Now let's look at the recent decision in Florida v. US, JM. A couple of key quotes I think you should consider.

"Whereas the parties and many commentators have focused on this distinction between activity and inactivity, we find it useful only to a point. Beginning with the plain language of the text, the Commerce Clause gives Congress the power to “regulate Commerce."...The nature of Chief Justice Marshall’s formulation presaged the Supreme Court’s tendency to describe commerce in very general terms, since an attempt to formulate a precise and all-encompassing definition would prove impractical...we are not persuaded that the formalistic dichotomy of activity and inactivity provides a workable or persuasive enough answer in this case. Although the Supreme Court’s Commerce Clause cases frequently speak in activity-laden terms, the Court has never expressly held that activity is a precondition for Congress’s ability to regulate commerce....Simply put, the individual mandate cannot be neatly classified under either the “economic activity” or “noneconomic activity” headings."

Read, and re-read that bolded sentence JM. You're gonna have to do better than just saying OMGLOL THIS IS NON-ACTIVITY. My response, and the response of the Court in Florida, is.. uh.. so f-cking what?

The fact that it is non-activity does not automatically render it unconstitutional, and if you think so, you're gonna have to explain to me why. Instead, we have to look at cases that are perhaps the most similar, such as Wickard and general principles of federalism and what not.

In Florida, the Court distinguishes Wickard by saying "The wheat-acreage regulation imposed by Congress, even though it lies at the outer bounds of the commerce power, was a limitation—not a mandate—and left Filburn with a choice. The Act’s economic mandate to purchase insurance, on the contrary, leaves no choice and is more far-reaching."

I'm not sure I agree with that. What choice did Filburn really have? To stop growing wheat and buy it all on the market? That seems to be what the Court is saying, which is a Faustian choice really. In essence, the Court is saying Filburn had a choice to stop farming, but in reality, what they're saying is the govt was basically forcing him to either face a penalty or to buy on the market. In other words, Filburn had to purchase wheat, just like under the mandate, citizens have to purchase insurance. I think these two cases are much more similar than the court gives them credit for.

More on this part later... I gotta get back to work.

Edited by Amidala777, 12 September 2011 - 08:56 AM.


#10
James Madison

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My time is limited at the moment and your post too long to address in its entirety. I am going to address your post in three separate replies. I first begin with your analysis of Scalia's concurrence.

Now as far as Scalia goes. First off, while he may not have gone on about Wickard in the same way that Stevens did, that is no less damning. Yes, he wrote a concurring opinion, but it was a concurring opinion, not a concurring opinion in part, and a dissent in part, or a straight out dissent


Ami, he begins his concurrence by stating he either disagrees with the majority opinion or his concurrence is more nuanced. "I write separately because my understanding of the doctrinal foundation on which that holding rests is, if not inconsistent with that of the Court, at least more nuanced."

Obviously Scalia doesn't disagree completely with Stevens in this case.


You are right. Scalia agrees with the holding but quite possibly nothing else in Stevens' opinion. Scalia's analysis is different, vastly different from Stevens' opinion. Look, you attempted to cast Scalia as an advocate of Wickard, and indeed resurrecting Wickard, on the basis of his concurrence in Gonzalez v. Raich. However, his concurrence does not support your contention, not even close. You made a false claim. No point in trying to defend the indefensible with additional ridiculous remarks of "Obviously Scalia doesn't disagree completely with Stevens in this case," when Scalia agrees with the holding but the rest of his concurrence is vastly different from Stevens' opinion.


Yes, I do know Scalia tries to make a distinction. And while you label my last post pathetic, what is truly pathetic is Scalia's attempts to weasel his way out of this. First, yes indeed Scalia just discusses Wickard in a footnote, but that footnote is all I really need to make my point, as in the footnote Scalia seems to have no problem whatsoever with Wickard. You say he suggests a limitation to Wickard. May I ask, excatly how? I'm not seeing it.



Nope...Scalia's footnote is not evidence of him finding Wickard palatable. Had you read the concurrence carefully, Scalia was citing to Wickard as an example of a case in which there is confusion and a distinction missed.

"As the Court put it in Wrightwood Dairy, where Congress has the authority to enact a regulation of interstate commerce, “it possesses every power needed to make that regulation effective.” 315 U.S., at 118—119.

Although this power “to make … regulation effective” commonly overlaps with the authority to regulate economic activities that substantially affect interstate commerce,2 and may in some cases have been confused with that authority, the two are distinct. The regulation of an intrastate activity may be essential to a comprehensive regulation of interstate commerce even though the intrastate activity does not itself “substantially affect” interstate commerce. FOOTNOTE 2: Wickard v. Filburn, 317 U.S. 111 (1942), presented such a case. Because the unregulated production of wheat for personal consumption diminished demand in the regulated wheat market, the Court said, it carried with it the potential to disrupt Congress’s price regulation by driving down prices in the market. Id., at 127—129. This potential disruption of Congress’s interstate regulation, and not only the effect that personal consumption of wheat had on interstate commerce, justified Congress’s regulation of that conduct."

Scalia did not cite the Wickard decision as evidence of his approving affection for the decision but rather as an example of a case in which a distinction was missed and the presence of confusion.

I'm not buying your argument that Scalia actually limits substantial effects in any way.


Scalia says it is limited in, at least, the two following ways. "Our cases show that the regulation of intrastate activities may be necessary to and proper for the regulation of interstate commerce in two general circumstances. Most directly, the commerce power permits Congress not only to devise rules for the governance of commerce between States but also to facilitate interstate commerce by eliminating potential obstructions, and to restrict it by eliminating potential stimulants."

But I digress, and so do you. Scalia didn't resurrect Wickard. Now, if you want to criticize Scalia's concurrence on other grounds, then fine, but you should dispense with your criticism of falsely accusing his concurrence of resurrecting, baptizing, and approving of Wickard.

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Ok, I'll concede to you that Scalia didn't "resurrect" Wickard. I was trying to make a point that is largely parallel to that, but you are right that it is distinct. I was not that precise in my original wording.
But I feel my original point stands. We have a case wherein:

a) Wickard is resurrected (albeit by Stevens)
b) Wickard, probably the most expansive reach of federal power in US history, was cited as overwhelmingly relevant precedent, despite Lopez and Morrison being decided just years earlier
c) The author is Stevens, who we all know Scalia loves to jump on, for even the most minor quibbles
d) The author of Lopez and Morrison, Rehnquist, dissented
e) O'Connor and Thomas both write, scathing, and very well done dissents that are more "in tune" with Lopez, Morrison, and general principles of federal/state balance of power.
And yet- Scalia sticks out as a sore thumb.. the lone conservative, supposedly the champion of the right on the bench, bucking the reputation and writing a concurrence that seems more like something the left-wing justices would write.

And why?

Do you see what I'm getting at, JM? I think you are probably right that Scalia doesn't necessarily give Wickard a huge thumbs up, and you are right to point out my word choice was a stretch. But I also think you have to admit that it's certainly suspect that a case such as this, one which even got Thomas writing more than 2 sentences (and we know he never does that)... has Scalia on board.

So maybe while Scalia doesn't wax poetic about Wickard, we don't see anything coming near his trademark passion. One little sentence about how his concurrence is more "nuanced" than Stevens. Big whoop. Scalia had a chance to pen a fiery dissent as O'Connor did, and yet seems oddly unconcerned. We have Stevens bringing back a case that marked the height of the New Deal, and Scalia has absolutely nothing to say. In fact.. I'm still not so sure his footnote is irrelevant either. I think you're misinterpreting it a bit... from my reading, it seems Scalia, while not going on and on about Wickard, still admits to it being a case in which the government, regulating an intrastate non-economic activity, was still justified even if the activity itself didn't directly impact interstate commerce. He says it right there man- that Wickard "presented such a case" and Congress was "justified."

Look, my larger point is thus- Raich, whether Scalia is wholly on board with the analysis in Wickard or not, must be dealt with by Scalia in a convincing fashion. He demonizes pot possession, probably because he just doesn't like potheads, and makes several leaps in logic to justify Congress reaching it, no matter how attenuated it may be. O'Connor points this out rather elegantly, and I don't think the fact that Obamacare is regulating "non-activity" is enough to get out of the rule he presented in Raich. Nothing in his rules makes that dichotomy, and I wanna know why possessing 6 pot plants on your own damn property is a matter of federal intervention, but a person not possessing health insurance is not.

By Scalia's own rule: "the power to enact laws enabling effective regulation of interstate commerce can only be exercised in conjunction with congressional regulation of an interstate market, and it extends only to those measures necessary to make the interstate regulation effective."

Not exactly sure why or how the individual mandate falls outside of that.

Thomas has an out.

O'Connor and Rehnquist were they still on the bench, has an out.

Scalia does not, and neither does Kennedy.


Look forward to the rest of your replies to my arguments if you find the time.

#12
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B. Wickard and Raich
You state that Wickard necessitates the decision in Raich. My my my, JM... to what lows you will go to defend your home boy Scalia. I have two responses, and two responses are all I need.


This is quite impossible since Scalia did not rely upon Wickard in his concurrence.


Second, O'Connor deals rather nicely with Wickard. There are two arguments here-
a) Wickard actually involved an effect on the interstate market: "consumption of homegrown wheat was the most variable factor in the size of the national wheat crop, and that on-site consumption could have the effect of varying the amount of wheat sent to market by as much as 20 percent," contrast to Raich: "Nor has it shown that Compassionate Use Act marijuana users have been or are realistically likely to be responsible for the drug’s seeping into the market in a significant way."


Has it ever occurred to you O'Connor's argument defies, if not ignores and oblivious to, a fundamentally important principle covered in Economics 101? Does the phrase supply and demand evoke any thoughts O'Connor's argument is rather weak? Marijuana sellers and producers are not going to bring the drug to the market when there is no demand for it. O'Connor's argument is parallel to the claim soda drinkers are realistically likely to be responsible for soda being interjected into the market in a significant way.

Since I prosecuted narcotics cases for 5 years, I can attest, based on my personal experience, O'Connor's reasoning is dubious. I have witnessed individuals involved in moving large quantities of marijuana up, from Mexico, through Evansvile, Indianapolis, up to Chicago. The marijuana being shipped was not for personal consumption but for sale. How did the marijuana produces know where to ship the marijuana? The same way any producer knows what to make, how much, and where to ship it, i.e. the signals and information provided by the market, i.e. the consumers. If there wasn't a market for the marijuana in Chicago, then marijuana wouldn't be shipped to Chicago. So, this is a very poor argument espoused by O'Connor to distinguish the facts of Raich from Wickard.

b) Wickard carved out an exception for small producers, whereas Raich was sweeping in scope: " The AAA itself confirmed that Congress made an explicit choice not to reach–and thus the Court could not possibly have approved of federal control over–small-scale, noncommercial wheat farming. In contrast to the CSA’s limitless assertion of power, Congress provided an exemption within the AAA for small producers."


She should probably re-read Wickard, because the wheat grown by the farmer in Wickard was for "non-commercial" purposes, and yet, the Court stated this was not sufficient to exempt Wickard from the law.

But. As a constitutional matter, I am having difficulty seeing exactly why this case is substantially different from Wickard.


Well, if "substantially different" is your standard, then you will have a very difficult time distinguishing many cases from prior decisions. The substantially different test is an unnecessary standard. Rather, the better question is whether the individual mandate is from Wickard and whether this distinction makes any difference. The individual mandate is different from Wickard. The issue in Wickard was the use of Congressional authority to preclude some people, specifically those growing wheat, from growing a certain amount of wheat. This is different from the individual mandate which reaches every person, not just some, but every person, and mandates they purchase a product. Being compelled to purchase a product is different from being prohibited from growing wheat beyond some amount.

There is a reason why every district court, or nearly every federal district and federal appellate court, is characterizing this case as a matter of first impression, a novel issue, because the facts surround the individual mandate are facts which no prior precedent has ever addressed before, including Wickard.

You state this is a fundamental difference. I really don't think so JM. It's a semantic difference. I'll agree with you that it's different in "kind," but not really in type and certainly not in degree. You write that "Commerce clause jurisprudence, thankfully, is not predicated upon considerations of intrusiveness."


A law limiting how much wheat can be grown is different than a law compelling someone to buy a can of soda. This is not a semantic difference but a difference in kind and type. One is prohibitive, the other is a mandate, i.e. the law compels people to do something, specifically to expend money on a particular product. The two are not remotely close at all.


No no NO, JM. That's a central consideration.. in fact, one could say the third prong of Lopez, i.e. the substantial effects test, essentially turns on a degree of intrusiveness. Consider Lopez and Morrison.. one of the biggest problems the Court had was that the statutes were essentially criminal laws that affected activity that was non-economic, and only reached an interestate market in some attenuated, aggregate fashion. Essentially the court is saying the federal govt is intrusive- i.e. over-reaching into a traditionally state role of government, and coming close to enacting a federal police power.


Degree of intrusiveness is not a central consideration. Furthermore, the Lopez decision was not predicated upon such a consideration. If you have this understanding of Lopez, then you need to carefully re-read the decision, because you have misinterpreted the Lopez decision, along with Morrison.


Florida seems to echo my point there, by stating "two overarching considerations within the Supreme Court’s Commerce Clause jurisprudence: (1) preserving the federal-state balance and (2) withholding from Congress a general
police power."


Yet, the Florida decision does not analyze the degree or amount of intrusiveness. The intrusiveness the Florida decision, if any part of the decision can be properly construed as an exercise in analyzing intrusion, is based within the context of the U.S. Constitution.


Read, and re-read that bolded sentence JM. You're gonna have to do better than just saying OMGLOL THIS IS NON-ACTIVITY


Fortunately, I do not have to respond at all, since I have never made an argument in this thread predicated upon non-activity contrasted with activity.


The fact that it is non-activity does not automatically render it unconstitutional, and if you think so, you're gonna have to explain to me why.


I never made this argument so it is not necessary I do any explaining on this point. I am not going to defend a position I have never and yet to articulate.


In fact.. I'm still not so sure his footnote is irrelevant either. I think you're misinterpreting it a bit... from my reading, it seems Scalia, while not going on and on about Wickard, still admits to it being a case in which the government, regulating an intrastate non-economic activity, was still justified even if the activity itself didn't directly impact interstate commerce. He says it right there man- that Wickard "presented such a case" and Congress was "justified."


You need to re-read it because Scalia references Wickard as an example where a distinction is ignored, and as a result, there is confusion. Scalia references Wickard as a footnote in the midst of his discussion of making a distinction, a distinction ignored, and as a result, confusion.


By Scalia's own rule: "the power to enact laws enabling effective regulation of interstate commerce can only be exercised in conjunction with congressional regulation of an interstate market, and it extends only to those measures necessary to make the interstate regulation effective."

Not exactly sure why or how the individual mandate falls outside of that.


The answer is easy...the case law upon which this principle rests, once again, involved Congressional legislation which did not require anyone to purchase anything.

#13
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The DC Circuit ruled today that Obamacare, including the individual mandate was constitutional. The case was Seven-Sky v. Eric Holder

http://www.cadc.usco...047-1340594.pdf

The decision was a 2-1. Of particular note, is that the majority opinion was written by Silberman, a conservative appointed by Reagan. The dissenting opinion was also from a conservative, but it should be noted he only objected on procedural grounds.

These comments are directed primarily at JM:

JM, I regret that I was unable to write a response to your reply above. I got laid off from my job, and other events led to this being a pretty bad month and I haven't been around. But I think this case, rather on point, discusses many of the arguments you were making.

First, I don't understand why you seem to continue to think that activity vs. in-activity is a distinction that has constitutional weight. You said above that you weren't making that distinction, but I think you very much were so when you stated that " law limiting how much wheat can be grown is different than a law compelling someone to buy a can of soda. This is not a semantic difference but a difference in kind and type. One is prohibitive, the other is a mandate." Well, the difference between those is essentially activity v. non-activity. In other words, regulation compelling someone to do something (who is "inactive"), vs. regulating behavior of those who have entered the market ("active").

The court here states, and I agree, that "No Supreme Court case has ever held or implied that Congress’s Commerce Clause authority is limited to individuals who are presently engaging in an activity involving, or substantially affecting, interstate commerce...we do not believe these cases endorse the view that an existing activity is some kind of touchstone or a necessary precursor to Commerce Clause regulation."

Next, and this is something I've been harping on for a while, but because I think it is relevant, and I think you are underscoring its relevance. I stated above that I think Wickard is a relevant precedent that has to be dealt with in some way or another. Let me be clear, that I think Wickard is a shameful decision and is questionably constitutional (IMO), but if it's there- this puts the court in the position where they either have to apply it, or pull a Kennedy from Lawrence v Texas and just decide to overrule precedent. The court is on my side on this one- "We think the closest Supreme Court precedent to our case is Wickard v. Filburn...comes very close to authorizing a mandate similar to ours, at least indirectly, and the farmer’s “activity” could be as incidental to the regulation as simply owning a farm...were “activities” of some sort to be required before the Commerce Clause could be invoked, it would be rather difficult to define such “activity.” For instance, our drug and child pornography laws, criminalizing mere possession, have been upheld no matter how passive the possession...Appellants’ view that an individual cannot be subject to Commerce Clause regulation absent voluntary, affirmative acts that enter him or her into, or affect, the interstate market expresses a concern for individual liberty that seems more redolent of Due Process Clause arguments. But it has no foundation in the Commerce Clause."

Last, I think this part of the opinion is of particular relevance as well:

"All that mattered were the overall dynamics of the wheat market–in other words, generalizations about likely, future economic behavior. If farmers like Filburn all exceeded their quotas, the mechanics of the wheat market made it inevitable that the interstate market would be impacted–either by the likelihood that the high price of wheat Congress was trying to maintain would induce some unspecified number of farmers to sell wheat at market after all, or the probability that farmers who had enough wheat for their own use would stop buying wheat at market. Either way, these economic forecasts–and not any affirmative acts by people like Filburn–were enough to sustain the law."

Would love to hear your thoughts if you have a moment. I suggest reading this opinion as well.

Finally, let me be clear that I don't even really support Obamacare. As a partical matter, I think it is rather unlikely to solve a moral hazard problem, due to the mechanics of how the mandate works. But, politics aside, I just don't see where the constitutional argument is coming from. If Wickard is to be upheld, then so must Obamacare.

Edited by Letsgo_7_7, 09 November 2011 - 06:17 PM.


#14
James Madison

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First, I don't understand why you seem to continue to think that activity vs. in-activity is a distinction that has constitutional weight. You said above that you weren't making that distinction, but I think you very much were so when you stated that " law limiting how much wheat can be grown is different than a law compelling someone to buy a can of soda. This is not a semantic difference but a difference in kind and type. One is prohibitive, the other is a mandate." Well, the difference between those is essentially activity v. non-activity. In other words, regulation compelling someone to do something (who is "inactive"), vs. regulating behavior of those who have entered the market ("active").


It doesn't make any sense to transform my argument into what you want it to say for the purpose of refuting it. My argument is not focusing upon activity as opposed to inactivity of an individual. My argument is focused upon what the government is doing, specifically the government power being exercised. The goverment power being exercised in the mandate is an effort compel people to purchase a product, good, or service, which is different from the government's power in Wickard of precluding people from engaging in some behavior. You can't rationally transform this argument into your obsession of inactivity as opposed to activity of the individual.

No Supreme Court case has ever held or implied that Congress’s Commerce Clause authority is limited to individuals who are presently engaging in an activity involving, or substantially affecting, interstate commerce...we do not believe these cases endorse the view that an existing activity is some kind of touchstone or a necessary precursor to Commerce Clause regulation."


I couldnt' care less, as my argument is not obsessing over what people are doing but rather the power Congress seeks to exercise. Specifically, my point is this is a nascent and novel exercise of congressional power and does not come within Wickard. Wickard is certainly relevant but it isn't controlling and certainly does not provide the lucid and unequivocal answer to the constitutional issue of whether Congress can dictate to people they must purchase a product, good, or service.


I stated above that I think Wickard is a relevant precedent that has to be dealt with in some way or another.


Relevant? Yes. Controlling? No. Wickard is relevant but not controlling, quite simply because the Court did not address the congressional exercise of authority presented in Obamacare. As a result, the majority of the Court can quite simply state Wickard is not controlling and does not dictate a particular outcome because the Court in Wickard was not confronted with any law similar, identical, or parallel to the individual mandate.


Let me be clear, that I think Wickard is a shameful decision and is questionably constitutional (IMO), but if it's there- this puts the court in the position where they either have to apply it, or pull a Kennedy from Lawrence v Texas and just decide to overrule precedent.


The Wickard decision does not have to be overruled before the Court can render the individual mandate as unconstitutional. The Wickard case never involved an individual mandate like the one in Obamacare and consequently, overruling it is not necessary to find the individual mandate in Obamacare unconstitutional.


We think the closest Supreme Court precedent to our case is Wickard v. Filburn...comes very close to authorizing a mandate similar to ours, at least indirectly, and the farmer’s “activity” could be as incidental to the regulation as simply owning a farm...were “activities” of some sort to be required before the Commerce Clause could be invoked, it would be rather difficult to define such “activity.”


Actually, no the language from the decision here does not agree with you. The language of, "the closest Supreme Court precedent to our case is Wickard." They are telling you Wickard is not identical, they are telling you Wickard is not parallel, they are telling you Wickard is not similar with the use of the word "closest." The use of the word "closest" is a significant indication Wickard, while relevant, is not so controlling as you suggest that it must be overruled to find the individual mandate unconstituional.

Furthermore, the use of the word "indirectly" weakens any suggestion Wickard is as controlling as you contest. The D.C. decision finds Wickard is closest to the individual mandate by arguing since Filburn could not grow wheat on his farm in excess of the quotas, unless he paid a fine or surrendered the wheat to the federal government, then he would have to enter the market and purchase wheat, should he desire the additional wheat. Ergo, the D.C. decision reasons, the federal law at issue in Wickard was an indirect mandate. Well, this reasoning could not be any more stupid.

First, to make a comparison between an individual mandate, which is a direct order to purchase something, to an indirect one of the kind described by the D.C. decision is non-sense. The prominent difference between the two is in Wickard, Mr, Filburn had a choice whether to buy any wheat from the market place. There was no language in the statute mandating he buy wheat from the market. So, if after Filburn had grown and harvested the total amount of wheat allowed under the federal statute, let's say 20 bushels, and he wanted, desired, or needed 22 bushels, then he has a choice to make. He can purchase the additional 2 bushels from the market or he can choose not to do so and simply go without the 2 additional bushels. To characterize this as an indirect mandate and assert, as the D.C. Court did, this is sufficient for comparisons to the individual mandate, in which case the law is requiring people to purchase the 2 additional bushels, is unadulterated stupidity.

Yet, it is because of this difference the D.C. decision characterized Wickard as the "closest" they have to their facts. In other words, Wickard is not controlling as you suggest and because it is the "closest" but not factually identical or parallel, not even factually similar, Wickard does not have to be overruled to find the individual mandate unconstitutional.


If Wickard is to be upheld, then so must Obamacare.


Not true, for reasons previously articulated in this post.

P.S. Sorry to learn you have been laid off. However, you have a law degree from a prestigious university, some prior experience practicing law, and as a result, I know you will land on your feet eventually. While these remarks probably do not assuage stress and worry associated with being out of work, perhaps they will provide some hope. Later.

#15
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Two questions for the legal experts:

1. What are the odds that the Supreme Court will defer ruling until 2015? My own understanding of the law was that a plaintiff had to have standing to come before the Court; since the tax implications of the law won't kick in until 2015 (filing season for tax year 2014), it seems that nobody would have standing until then.

2. What if the individual mandate were reframed in a slightly different structure...Hypothetically of course. Practically, what I'm proposing has zero chance of passing. But suppose the Democrats instituted a flat tax on EVERYONE that was called the Healthcare Tax. Then, a tax credit was offered (that in effect would offset the Healthcare Tax) to anyone who had insurance. The practical effect would be to still encourage (aka. mandate) insurance coverage for all. But by not applying the tax punitively for not purchasing a product, would this structure hold up to legal scrutiny better than the current system?

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1. What are the odds that the Supreme Court will defer ruling until 2015?


I cannot say. The question here, is whether Obamacare is construed as a "tax," and if so, then the Anti-Injunction Act applies, which states that taxes cannot be constitutionally challenged by a citizen until they are enforced. The Courts have come out in different ways on this issue, and the 11th Circuit avoided the issue entirely (possibly because the plaintiffs were state governments in that case, Florida v US), however, quite honestly, I cannot speculate what the Court will do on this issue- I don't have a good read on how the Court feels on this issue. My gut feeling tells me that the Court will probably decide the case on the merits and not dismiss this on jurisdiction, but I have no strong basis for that.

2. What if the individual mandate were reframed in a slightly different structure...Hypothetically of course. Practically, what I'm proposing has zero chance of passing. But suppose the Democrats instituted a flat tax on EVERYONE that was called the Healthcare Tax. Then, a tax credit was offered (that in effect would offset the Healthcare Tax) to anyone who had insurance.


There is nothing unconstitutional about this. Congress' powers under the tax/spending clause are far-reaching and broad. If Congress instituted a 50% tax on income tomorrow, for the purpose of establishing a government-run health care system, that is clearly constitutional. Now, as you do mention, that has practically no chance of getting through Congress for political reasons, but there is nothing unconstitutional about that.

The last time Congress' tax power was struck down was way back in 1936, in US v Butler, which struck down certain agricultural taxes, but did also state that Congress' power was broad: "Congress consequently has a substantive power to tax and to appropriate, limited only by the requirement that it shall be exercised to provide for the general welfare of the United States."

The last time the tax/spending power was challenged was in 1987, in South Dakota v Dole, the famous case where the US was withholding federal highway funds to states that did not increase their drinking age to 21. The court ruled 7-2 that was constitutional (including Scalia, Rehnquist in the majority)

Edited by Letsgo_7_7, 27 March 2012 - 07:54 AM.


#17
James Madison

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If Scalia's questioning is any indication of how he will decide the case, then I was correct in my comments made in this post as they pertain to him. There is, however, a specific qualification to be made. Justice Scalia may be inclined to assert the mandate is different from Wickard because Wickard did not involve any use of federal power to compel people to purchase a product and people choosing not to purchase a product are not in the market or part of the market and the necessary and proper clause cannot be used to compel them to enter into commerce so they can then be subjected to regulation.

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For those interested in hearing the oral argument, it is Florida v US Dep't of Health and Human Services, and the audio is here:

http://www.supremeco...=11-398-Tuesday

It's 2 hours long, so you can read the transcript here
http://www.supremeco...398-Tuesday.pdf

JM, I haven't gotten a chance to listen to the whole thing yet- but practically every news story I've read so far indicates that the attorney representing Florida (Clement) did a stellar job. When I get a chance to listen to the whole thing, I'll have some comments. You may end up being right about Scalia, JM. Maybe I overstated the degree to which Scalia would have "difficulty" with Wickard, but I didn't want to give the impression that there is "no way out." Well, ok, I actually did say that. But that was perhaps too strong- the main thrust of my point was simply that Wickard would have to be addressed, in some fashion, given Scalia's opinion in Raich.

Unfortunately, I never got to respond to your lengthy post above... this was around the time I got laid off and I started drinking somewhat heavily and ignoring this forum. But, in short- I think you present a pretty compelling argument for distinguishing Wickard. I imagine that if the Court does strike Obamacare, the reasoning could very well be similar to what you laid out.

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JM-

If you're still lurking about, I'd like to get your reaction to the line of questioning re: Wickard and whether the commerce clause can compel a purchase. In specific, note Breyer's question beginning on pg 61 of the transcript (link above), around 1:08 into the argument audio, and the line of questioning that follows. Do you think the response was sufficient?

As our discussion probably indicated to you, this is the area of the case that is most fascinating for me.

Edited by Letsgo_7_7, 27 March 2012 - 07:26 PM.


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JM-

If you're still lurking about, I'd like to get your reaction to the line of questioning re: Wickard and whether the commerce clause can compel a purchase. In specific, note Breyer's question beginning on pg 61 of the transcript (link above), around 1:08 into the argument audio, and the line of questioning that follows. Do you think the response was sufficient?

As our discussion probably indicated to you, this is the area of the case that is most fascinating for me.


I will listen to it and post tomorrow on it. I have my niece and nephew over for the night.

#21
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Here is a question, regarding the portion of Obamacare in which there is a mandate that requires people to purchase some form of healthcare or face a penalty. The argument is that this is an unprecedented over reach of the federal government to require someone to purchase an insurance, thus infringing on personal liberty. But is it unprecedented? Virtually all states require people to purchase auto insurance. Also, there is a requirement to purchase home owner's insurance when carrying a mortgage. Could these be precedents that sustain the health insurance requirement in Obamacare?

#22
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Here is a question, regarding the portion of Obamacare in which there is a mandate that requires people to purchase some form of healthcare or face a penalty. The argument is that this is an unprecedented over reach of the federal government to require someone to purchase an insurance, thus infringing on personal liberty. But is it unprecedented? Virtually all states require people to purchase auto insurance. Also, there is a requirement to purchase home owner's insurance when carrying a mortgage. Could these be precedents that sustain the health insurance requirement in Obamacare?


No, because you are comparing exercises of state power to federal power and the two are not the same under the U.S. Constitution.

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Right.

To elaborate a little further, Chalup, the federal government can only do what is specifically enumerated in the Constitution. The commerce clause in the Constitution states the Federal government can regulate interstate commerce; the legal question in this case is whether Obamacare appropriately falls within the Commerce clause.

The states, on the other hand, can do basically whatever they want, subject to some restrictions (such as the 13th amendment- i.e. they cannot allow slavery, and the 14th amendment- equal protection, or if they infringe upon rights specifically reserved for the Federal government, most of which are outlined in Article I, sec 8, e.g. only the federal government gets to coin money, or declare war, etc.)

#24
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That makes sense in the case of state mandates, like auto insurance, but what about home owner's insurance, namely in the case of HUD, FHA loans, and VA loans?

Isn't there a federal mandate for the home owners to carry home owners\hazard insurance in those cases? I know that is a big stretch when comparing it to Obamacare, but is it at least possible for that to be cited as a precedent?

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Isn't there a federal mandate for the home owners to carry home owners\hazard insurance in those cases?

I have to look at my paperwork, but I believe insurance is a requirement on HUD loans until you pay off 20% of the principle or something.

That being said, there is still an element of choice. You don't have to drive a car or buy a house, but "everybody becomes a customer" of the doctor eventually. My apologies if this has already been covered in one of the tl;drs in here.



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