February 28, 2011

Does the Necessary and Proper Clause Authorize Laws Which Aren't Necessary and Seem Improper?
— Ace

poster-war-bonds.jpg

Someone was questioning my thoughts that the ObamaCare suit was an underdog. Here's some reasons it just might work.

The claim of constitutionality for ObamaCare rests upon two clauses of the Constitution (plus lots of interpretation and expansion since they were written).

The Commerce Clause authorizes Congress to regulate commerce between the states. This has been interpreted, rather expansively, as giving commerce the authority to regulate anything that "affects" interstate commerce, even if the action is itself entirely intrastate.

Example: Federal law controls how much corn you can grow. People challenged this, saying "Okay, I'm growing more corn than you allow, but it's not being sold to citizens of other states, but only within my state to other citizens within my state where the federal law can't touch me."

Held: If you sell the corn to intrastate customers, that means their need for corn from out of the state is therefore diminished, so your sale prevents (or discourages) an interstate sale, so it "affects" interstate commerce.

Ummm... as you probably know that means there is no practical limit to what the Commerce Clause authorizes. This idea, taken to its fullest, means that all other clauses of the Constitution which claim to limit federal power are null and void, because really, this one clause alone, given that expansive interpretation, is the real Constitution, then: Congress can do whatever it wants and all those other clauses limiting Congress are lies.

The Court has struggled with this, attempting to have it both ways, that the Commerce Clause is the Godmode of the Constitution, but gee, those other clauses must mean something; let's try to give the clause an expansive interpretation while still giving meaning to other clauses.

The other clause of capital importance here is the necessary and proper clause -- if the Constitution grants Congress the general power to do a particular thing, it also, by implication, grants Congress the power to undertake the specific steps necessary to do that thing. Congress' claimed power to act then is supposed to also grant it additional secondary powers to achieve the permitted goal.

So here are some thoughts I have on ObamaCare, challenging its constitutionality. Some of these I think I thought of myself, but I doubt I actually thought of them first; I'd bet a huge pile of money (if I had such) others have thought of this stuff long before me. But these arguments make sense to me, so I'd like to see them advanced more prominently.

1. The mandate is not necessary at all. There is a difference between "necessary" and "politically useful" or "politically expedient." Necessary means, by dictionary definition (and Scalia is a great proponent of going to the dictionary to resolve the meaning of the constitution) "required."

Breathing is necessary for my life. Netflix is not necessary for my life. It's just something I like.

Is the mandate "necessary" to implement ObamaCare, even assuming in the first place that Congress has the broad right to regulate health care nationally?

No, it's not. The goal of the mandate is just to force people to pay for coverage. Even if one assumes this goal is needed for health care (which it's not, by the way-- liberals have been proposing alternatives, in the wake of Judge Vinson's ruling, thus demonstrating that even the proponents of the bill do not believe this is necessary at all), we know there is an alternative method to reach this goal: imposing a tax.

It is conceded almost universally that by the broad grant of power to tax afforded Congress by the 17th amendment, Congress could impose a tax on each person of $1000, used to pay for a health care plan, rather than imposing a mandate of $1000 on each person. No one disputes this is possible (except for a fringe of anti-17th Amendment thinkers whose ideas are not accepted in the legal community).

Since Congress could easily, and without any realistic constitutional challenge conceivable, get to this end ($1000 from each person for health coverage) without a mandate, through a tax, it proves right there the mandate is not necessary at all.

Congress already had a tool, had a power, granting it the ability to levy a $1000 charge on each citizen for health care coverage. Rather than utilize that almost-without-challenge tool already it its possession, they chose instead to create for themselves a brand new power, the power to impose a mandate, the power to tell citizens they must make a particular purchase with their money.

I think right here the necessary and proper argument fails utterly. Congress already had a power to achieve its end but ignored that to create a new one. That was their choice, but their choice does not make this claimed power necessary.

This power was not required, which is what necessary means. This power was merely politically expedient, because they didn't want to admit this was a tax for purely political reasons. They insisted it was not a tax; fine, but they cannot claim they could not have achieved this outcome via a tax. So the mandate is simply not necessary, given an obvious alternative clearly available.

This is important, to me: They are trying to claim "necessary" means simply "politically expedient." It doesn't mean that. Necessary means necessary. Proving the power is not necessary means it's not necessary and the necessary and proper clause simply does not apply.

I think it's also important to note what another federal judge did -- that this game Obama is playing, claiming it's not a tax to get it passed, and then claiming, when challenged in court, that it is in fact a tax casts serious doubt on whether this bill was passed with the actual consent of the governed. Bills passed with the consent of the governed should be afforded the highest level of deference as far as courts striking them down; but bills passed, as this one was, apparently as a trick on the public (it's not a tax when we vote it into law, but now it is a tax when we are challenged on it in court) are not owed any such deference.

2. If Congress always had this power, why did it not utilize this power in all of American history until now? Another argument offered against the mandate is that if Congress always has possessed the ability to force people to purchase stuff they didn't want, how is it that no one realized this until 2009?

Certainly such a power would have been very useful in the past. That's why I put up that advertisement for war bonds at the top of the post -- during World War II, the government advertised the purchase of war bonds as patriotic. War bonds -- essentially loans made from a citizen to the government so that the government could fight a very costly war -- were very important in WW2. Without war bonds, we couldn't have covered the costs of the war against Hitler.

But note that post is encouraging the public to buy war bonds. Note it is specifically NOT saying:

Bear in mind, you are mandated by law to purchase a certain amount of war bonds, so make sure you are in compliance with the law and purchase yours today, before the Internal Revenue Service begins an investigation against you.

Those claiming ObamaCare is constitutional claim that health care is so important that it springs into life a new power, never before utilized by Congress in the past, or, alternately, a power Congress has always had, but hasn't used before, because it has not come across a situation of such importance that it felt justified the use of the always-available but never-used power.

Well, my answer to that is Hitler's Nazi Invasion of the World. It seems to me that defeating Hitler was also a very important goal -- one might say it was almost as important as ObamaCare, even! -- and yet Congress did not use this allegedly always-available power then.

If this power always existed, why did they forget to use it? Why did they simply encourage people to buy war bonds rather than mandating that they did?

Or if health care is so important that it only creates, like Zeus birthing Athena from his forehead, this power to mandate purchases now, can it really be claimed that ObamaCare is more important than defeating Hitler? Can it be maintained with a straight face that a health-care "reform" that came into being more or less randomly (due to Congress only being able to pass the Senate's half-baked plan due to Scott Brown's election as a 41st vote in favor of filibuster) is so much more important than Victory in World War 2 that this latest "health care crisis" created this power whereas Hitler's war machine failed to do so?

Correction: I meant the 16th Amendment (federal income tax) and not the 17th (direct election of senators), as commenters point out.

I literally always get these mixed up.

There are some words I know I always spell wrong so I adopt the rule "it's the opposite of what I think it is." But then I slowly get the right spelling in my head, but then apply the "it's the opposite of what I think it is" rule and get it wrong anyway.

This seems to be happening to me with the 16th and 17th. However, having gotten it wrong here, and now writing this correction, I think this will be the last time I make this error. So thanks.

Posted by: Ace at 09:00 AM | Comments (105)
Post contains 1622 words, total size 10 kb.

1 hmmmmmmmmmm

Posted by: elspeth at February 28, 2011 09:05 AM (0AkWH)

2 Even a Dem governor admits that without a public option, the individual mandate ought to go

Posted by: The Q at February 28, 2011 09:06 AM (MYuEC)

3 All of those things; the commerce clause, the necessary and proper clause, the "general welfare" were all distorted beyond all reality by the FDR packed courts.

The courts had been whittling at them a little at a time over the years, but 16 straight years of liberal judge appointments with a rubber stamp Senate all intending to subvert the Constitution towards socialism has literally destroyed the original intent of the Constitution.

In order to restore ruling to what they should be we would have to have 60 Jim DeMints in the Senate and 16 years of Ronald Reagan making appointments.

Either that, or an Article V convention. There is no other way to truly fix it.

Posted by: Vic at February 28, 2011 09:06 AM (M9Ie6)

4 Also, the mandate is in trouble because the ObamaCare wussies are now arguing that the mandate is a tax, even when they specifically lied during the buildup that it wasn't.

Posted by: The Q at February 28, 2011 09:07 AM (MYuEC)

5 your prose is too prolix

In desperate times, everything is politics.  Logic and principles get pushed aside faster than a hooker with a boil and facial herpes

Posted by: ex-PFC Wintergreen at February 28, 2011 09:09 AM (UqKQV)

6 The problem is that this will go to the SCOTUS and then it will be up to Justice Anthony "coin flip" Kennedy.

Posted by: Quilly Mammoth at February 28, 2011 09:10 AM (4yjiA)

7 We might need an amendment that limits or replaces the commerce clause, and says exactly what congress can regulate.

Jefferson got the Bill of Rights passed because he didn't trust the Federalists to not use the powers in the Constitution to run roughshod over us.

He missed this one, probably because he figured any sane person would realize this clause was meant to forbid states from setting up customs booths and forbidding out of state merchants. He underestimated bureaucratic insanity.


Posted by: Mike Capuguano at February 28, 2011 09:11 AM (atS82)

8 Ace:
My initial hunch is that in your argument #1, because a hypothetical $1,000 tax per person for health insurance would be a capitation tax and hence unconstitutional.  but, I'm not a lawyer.

Posted by: chemjeff at February 28, 2011 09:11 AM (czcue)

9 Too many choices. People want to be free of choice, so the WON was created to fill this need. Same thing for Moochelle. Food, too many choices. Other than food, cars, energy, healthcare, and high speed trains, you are free to choose (until we discover another universal right). Stay tuned.

Posted by: Inspector Cleuseau at February 28, 2011 09:12 AM (Q5+Og)

10 er, rather: your argument #1 wouldn't work because it would be a capitation tax and hence unconstitutional.

Posted by: chemjeff at February 28, 2011 09:12 AM (czcue)

11 Urk, bad sockpuppet!

Posted by: Kristopher at February 28, 2011 09:13 AM (atS82)

12 It's incredible how much Democrats can fuck things up when you give them the power. I mean it's really impressive.

Posted by: tachyonshuggy at February 28, 2011 09:15 AM (t+tqr)

13 All of those things; the commerce clause, the necessary and proper clause, the "general welfare" were all distorted beyond all reality by the FDR packed courts.

You know, this is what I've never understood.  IIRC, FDR had to fill the Supreme Court with something like 13 Justices to get his unconstitutional power grab accepted.  Yet, now that we're down to 9, no conservative President wants to go to the mattresses and appoint 5 more strict constructionists to undo some of that damage.

Has anyone ever explained why?  I know that Reagan and Bush I couldn't have gotten them through the Senate (most likely), but why didn't Bush II at least try?

Posted by: AllenG (Dedicated Tenther) at February 28, 2011 09:15 AM (8y9MW)

14

I've got nothing...

Obamacare was passed by stepping outside the traditional form of government.  As such, I can't imagine it will hold much deference in the eyes of the court. 

Then again, there's two sides to the coin that will be flipped to decide its fate.

Posted by: Radagast the Fool at February 28, 2011 09:16 AM (2fU2Q)

15

Another argument you missed is that the court has held in the past that there are limits to the power of the Commerce Clause (see Lopez and Morrison among others) If the mandate is indeed legal, than in reality it would overrule these cases in that as mentioned the Commerce Clause would swallow the rest of the constitution.

Indeed, thats one of the biggest problems I have with the mandate's legality: the very reason the constitution exists is to limit the power of the federal government. The reasoning of why the law exists or the goal of the legislation should be irrelevant no matter how noble it may be. The enclusion of the mandate if upheld does violence to the idea of limited government itself, damn any specific text to the contrary.

While I agree with the "its never been used before" argument, I know SCOTUS has already found ways around that. Originally drug legislation was based on the ability of the FDA to regulate and not an outright prohabition (that's why the crime is possession without a liscense). Congress didn't think it had the power to regulate drugs then.  After the expansion of federal power during the new deal, courts have just read past this, and even Scalia has become comfortable with the Commerce Clause as used in this manner. (See Reich, although Thomas did dissent)

Posted by: JollyRoger at February 28, 2011 09:16 AM (NCw5u)

16 >>>My initial hunch is that in your argument #1, because a hypothetical $1,000 tax per person for health insurance would be a capitation tax and hence unconstitutional. but, I'm not a lawyer. Well their lawyers are in court arguing this is a tax and therefore they have that power so I don't know where you're getting the unconstitutonal stuff. I never heard a capitation tax (I guess a head tax?) was unconsitutional per se.

Posted by: ace at February 28, 2011 09:17 AM (nj1bB)

17 I've always thought that w/o the mandate O-care dies a quick death because insurance carriers will either stand firm for its repeal or face certain bankruptcy in short order. The only way that the entire scheme would "work" fiscally (yeah, I know) is if every uninsured were all of sudden forced into the system, thus the young would subsidize the old. Hence the need for a mandate - and also why it's inclusion was what got the carriers on board to begin with. With all of the other nonsense regs being forced on the carriers (community rating, guaranteed issue, no lifetime payouts/caps, etc.) if the mandate goes then it's effectively dead. In a strange twist of irony, I believe that if it were to be found UC, it would help Obama politically in that it would take repeal off the table.

Posted by: volfan at February 28, 2011 09:17 AM (Ck59J)

18 >>>IIRC, FDR had to fill the Supreme Court with something like 13 Justices to get his unconstitutional power grab accepted. No he threatened that. The threat of this caused one of the five anti-New Deal votes to flip. This is called "The Switch in Time That Saved the Nine."

Posted by: ace at February 28, 2011 09:17 AM (nj1bB)

19 I was thinking the same as chemjeff.

Posted by: mallfly at February 28, 2011 09:18 AM (bJm7W)

20 Posted by: chemjeff at February 28, 2011 02:11 PM (czcue)

Meh.  Change the Income Tax code so that taxes are figured at x% + $1,000.00.

Now it's an income tax.  Certainly enough of one to pass the farce that is the current Supreme Court.

Posted by: AllenG (Dedicated Tenther) at February 28, 2011 09:18 AM (8y9MW)

21 You people have obviously forgotten the good and welfare clause that covers everything the necessary and proper clause does not.

Teabaggers.

Posted by: John Conyers at February 28, 2011 09:18 AM (2pEj7)

22 Not selling my corn out of state?  How about not selling it at all?  Is that covered by the Commerce Clause?  Why, yes, according to Wickard v. Filburn, it is.

Posted by: A Balrog of Morgoth at February 28, 2011 09:19 AM (0IPsJ)

23 Let me say this about that....OK I got nuthin.

All I know is the Supreme Court has a bad habit of deciding cases very narrowly, ie, something is constitutional but only in this case.  This generally winds up badly for us, and continues an incrementalism of loss of liberty for citizens.

Posted by: Guy Fawkes at February 28, 2011 09:20 AM (xdHzq)

24

Not selling my corn out of state? How about not selling it at all?

What if  I just give it away?

Posted by: Paris Hilton at February 28, 2011 09:21 AM (2fU2Q)

25 even if this business about a capitation tax is true (I never heard that, new one on me) AllenG is right about the easiness of constructing it properly to be a permitted tax.

Posted by: ace at February 28, 2011 09:21 AM (nj1bB)

26 Well their lawyers are in court arguing this is a tax and therefore they have that power so I don't know where you're getting the unconstitutonal stuff. I never heard a capitation tax (I guess a head tax?) was unconsitutional per se.

Posted by: ace at February 28, 2011 02:17 PM (nj1bB)


Ace, I was thinking of Article 1, Section 9 specifically.  What is your take on that?

Posted by: chemjeff at February 28, 2011 09:21 AM (czcue)

27

Held:  Even if you use your corn for personal consumption, it can be regulated by the Federal Government because growing your own corn affects how much corn woudl be bought and sold on the open market. (Wickard v. Filburn)

It is important to point out exactly how far SCOTUS overreached on this one, because it stretched the commerce clause to virtually limitless ends. 

Posted by: California Red at February 28, 2011 09:23 AM (7uWb8)

28 Now my head hurts and there isn't a doctor who will see me.

Posted by: dfbaskwill at February 28, 2011 09:23 AM (71LDo)

29 Well their lawyers are in court arguing this is a tax and therefore they have that power so I don't know where you're getting the unconstitutonal stuff. I never heard a capitation tax (I guess a head tax?) was unconsitutional per se.

Posted by: ace at February 28, 2011 02:17 PM (nj1bB) 

Article 1 Section 9

No Capitation, or other direct, Tax shall be laid, unless in Proportion to the Census or Enumeration herein before directed to be taken. (modified by the 16th to allow income tax.)

Posted by: Quilly Mammoth at February 28, 2011 09:25 AM (4yjiA)

30 All I know is the Supreme Court has a bad habit of deciding cases very narrowly, ie, something is constitutional but only in this case.

To some extent, this is a natural consequence of the SC taking the power to determine Constitutionality upon themselves.  The Constitution is really fairly simple, so if they make broad and easily understood decisions, there won't be much call for them to use that power.  As we all know, a power not exercised is a power lost.

Ergo, they make very narrow, "erudite" decisions which are designed to generate other cases about which they can make other very narrow, "erudite" decisions.

And I would like to see a coalition of States say "FU" to the Federal Government and take back their power of determining the Constitutionality of laws.  It would take a coalition of states (at least 10, I'm thinking) because just a couple could be squashed pretty easily by the Federal Gov't (withholding various types of funds, etc.), but once you get up around 10, the Feds have a little more trouble a) hiding what's happening and b) reacting to it.

Posted by: AllenG (Dedicated Tenther) at February 28, 2011 09:25 AM (8y9MW)

31 Well, also - and correct me if I'm wrong - Congress doesn't have the power to tax to achieve some end that would otherwise be unconstitutional by some other means.  For instance, Congress could not impose a $1,000 tax on those who didn't own a Bible, because that would clearly violate the First Amendment even though Congress does have the power to tax.  So it seems to me that the real argument is whether or not the government has the power to coerce us to engage in economic activity, and the power (or not) to tax to implement that power is a secondary issue.

Posted by: chemjeff at February 28, 2011 09:26 AM (czcue)

32 I love the the argument and how it is presented. But it's a year too late.

Posted by: melvin at February 28, 2011 09:26 AM (3OCZw)

33 Posted by: chemjeff at February 28, 2011 02:26 PM (czcue)

No, but they could, theoretically, place a national Duty on all Bibles of $1,000.00.  Which would achieve the same end completely "legitimately."

Posted by: AllenG (Dedicated Tenther) at February 28, 2011 09:27 AM (8y9MW)

34 You're wrong Ace!  This "new" Constitution has power over all 57 states!!!  Anything Obama says the Constitution can do is in fact, legal and un-challengeable by any SCOTUS Justice or legislator.

We're all going to have to accept the new normal.

Posted by: EC at February 28, 2011 09:27 AM (mAhn3)

35 O/t:  "Stan Rosenfield tells TMZ ... he's resigning because "I worked with Charlie Sheen for a long time and I care about him very much, however, at this time, I'm unable to work effectively as his publicist and have respectfully resigned."

Underneath it is an interview, which apparently ran live, with Charlie.  They say he discusses a lot of new stuff.  I seriously couldn't get through it.  How do people keep up with this garbage?

Posted by: curious at February 28, 2011 09:28 AM (p302b)

36 Xlnt post, Ace.

Posted by: PJ at February 28, 2011 09:28 AM (QdxaI)

37

@7

Thats a problem too... the commerce clause as we know it is the mirror opposite of what it was intended on being.

It was created to prevent states putting tarriffs on one another and to prevent trade wars and such that occured during the time period immediately following the Revolution and prior to the adoption of the Constitution. A proper useage would be to prevent state insurers from having a monopoly in state and allow for competition across state lines. (Opposite of what we have now.) Its really hard for people to see this because all the pieces are there (though backwards) and we lawyers have a way of making creative arguments that can convince ourselves of anything.

Another argument that I thought of was that Obamacare was unconstitutional because the oversight panels and central records (did they keep that part) violated the right to privacy as a penumbra of the due process clause of the 14th amendment and cite (wait for it.....) Roe v. Wade as controlling precedent.

Posted by: JollyRoger at February 28, 2011 09:29 AM (NCw5u)

Posted by: curious at February 28, 2011 09:30 AM (p302b)

39

Example: Federal law controls how much corn you can grow. People challenged this, saying "Okay, I'm growing more corn than you allow, but it's not being sold to citizens of other states, but only within my state to other citizens within my state where the federal law can't touch me."

 I think the real problem is in the first sentence, not in the second sentence.

Posted by: Vashta Nerada at February 28, 2011 09:31 AM (hiFDo)

40 well, what about this concept..."proper" should mean, laws that fit within the defined grants of power to the federal government. Meaning, if it violates commerce clause, it's not proper, even if it is "necessary." But these lefties don't care about stuff like laws or the constitution...or as we see in wisconsin...they don't care much for votes or voters either. The N&P clause isn't a grant of power, so who cares.

Posted by: joeindc44 at February 28, 2011 09:33 AM (QxSug)

41

Yeah, this is good stuff and should be required reading for trolls. But they won't read it and don't have the candlepower to respond.

Good to see our host made it through the weekend with a few brain cells.

Posted by: spongeworthy at February 28, 2011 09:33 AM (rplL3)

42 Yeah, this is good stuff and should be required reading for trolls. But they won't read it and don't have the candlepower to respond.

I would love for ergie to jump on this one...  The responses would be Legen... (wait for it)... dary.

Posted by: AllenG (Dedicated Tenther) at February 28, 2011 09:34 AM (8y9MW)

43 My preferred argument: In Wickard, the Congress was found to have the power to regulate the growing of grain for personal consumption and in Gonzales the same was found with respect to the growing of marijuana. These two cases were both based upon expansive interpretations of the Commerce Clause that not only allows the Congress to regulate commerce between the states but also any "activity" that taken collectively has a substantial impact on interstate commerce. This is a court created expansion of the clear meaning of the clause, but is still somehow limited by the requiring of an activity to regulate. The requirement of an activity, any activity, at least affords the individual some opportunity to avoid the regulation. The farmer in Wickard could have grown some other crop or could have raised livestock or not farmed (the pot-head could have avoided growing pot), but it was possible to avoid the regulation by avoiding the regulated activity. If we dispense with the modest requirement of an activity and enable regulation of "decisions not to act" then the clause is truly unmoored from any limitation. There is no way for the individual to avoid the regulation other that by stopping the beating of his own heart. If you breath you can be regulated. That is inconsistent with limited government and enumerated powers. The commerce clause has already been deformed beyond recognition by precedents that allow activities to be regulated if the activities collectively impact interstate commerce. That's crazy broad right there. But at least you have that one catch -- that one requirement -- an "activity" that impacts interstate commerce. Doing away with that one last requirement is a bridge too far. It it is impossible to avoid the regulation, then you have exceeded the bounds of the commerce clause -- even the commerce clause as deformed by the New Deal judges.

Posted by: tommylotto at February 28, 2011 09:35 AM (oHIHU)

44 "No, but they could, theoretically, place a national Duty on all Bibles of $1,000.00.  Which would achieve the same end completely "legitimately."

 Oh I thought they already had a "Cash for Bibles" program. Give us your old worthless hate filled books that are weakening the very fabric of our social justice.
  Out with the old tired stuff and Win The Future with Obama and friends. We have brand new books for you available at your local job service offices new starting this spring at your community organizing offices.

Posted by: melvin at February 28, 2011 09:35 AM (3OCZw)

45 pls rewrite 3rd paragraph

Posted by: BDJ at February 28, 2011 09:36 AM (cUNcx)

46 Bask in the new civility. Last Friday.... after the Assembly voted to engross the Budget Repair Bill, Hintz turned to a female colleague, Rep. Michelle Litjens and said: "You are F***king dead!"

Posted by: demoncrat at February 28, 2011 09:36 AM (fP1QW)

47

@3: "In order to restore ruling to what they should be we would have to have . . . 16 years of Ronald Reagan making appointments."

Yeah, because all of his appointments turned out to be awesome! 

Posted by: Fa Cube Itches at February 28, 2011 09:37 AM (xy9wk)

48 No, but they could, theoretically, place a national Duty on all Bibles of $1,000.00.  Which would achieve the same end completely "legitimately."

What you mean is basically a sales tax on Bibles?  Yeah but that wouldn't compel people to buy a Bible or necessarily tax people who didn't already have one.  My point is that Congress can't use a legitimate power to achieve an unconstitutional end.  It's unconstitutional to compel people to own a Bible so it would still be unconstitutional to impose taxes on those who didn't own Bibles.

Posted by: chemjeff at February 28, 2011 09:37 AM (czcue)

49 Excellent rant.

Pray tell why do you use logic?

These are democrats, er socialist, they have no logic or SHAME.

Always remember that, they have no shame.  Means to the End! 

Fuck you and your logic.

Posted by: Kemp at February 28, 2011 09:38 AM (JpFM9)

50

The way the administration has argued is that the N&P clause applies because the mandate is a necessary component of Obamacare.  I don't see how the Feds can back off that assertion; it would be too easy for a court to make a compromise decision throwing out the mandate but keeping the rest of Obamacare in tact.  Without the mandate, it would require a significant re-write.

If I were the Dems (and I'm glad I'm not that dumb), I'd have written it such that you get a big tax deduction for having health insurance instead of a "tax" penalty for not having it; even those who don't pay in would get a (bigger) refund via the bullshit "earned income tax credit".  It would have the same effect as imposing a tax/fee/punishment on those who don't have it, but would be almost impossible to challenge in court.

Posted by: Hollowpoint at February 28, 2011 09:39 AM (SY2Kh)

51

@43

That is the argument there. Both Wickard and Reich required an affirmative action: specifically the growing and havesting of plants.

Here, the mandate exists off of the essence of being. Hate to put it this way, but if we lose this, there is no longer a constitution to speak of.

Posted by: JollyRoger at February 28, 2011 09:39 AM (NCw5u)

52

Don't you know that the Commerce Clause has the power to reach right into your mind?

The crux of these cases is whether the government's power to regulate "Commerce . . . among the several States" is so broad that it can mandate that everyone buy health insurance. Judge Gladys Kessler of the D.C. district court says in her 64-page opinion that this power includes regulating even "mental activity, i.e., decision-making."

The distinction between activity and inactivity is "of little significance," Judge Kessler writes. "It is pure semantics to argue that an individual who makes a choice to forgo health insurance is not 'acting' . . . Making a choice is an affirmative action, whether one decides to do something or not do something. They are two sides of the same coin."

In other developments: your decision not to purchase a car from GM or Chrysler in order to help repay the Federal bailout of the UAW is illegal.

Posted by: stuiec at February 28, 2011 09:39 AM (Di3Im)

53

@13: "You know, this is what I've never understood.  IIRC, FDR had to fill the Supreme Court with something like 13 Justices to get his unconstitutional power grab accepted.  Yet, now that we're down to 9, no conservative President wants to go to the mattresses and appoint 5 more strict constructionists to undo some of that damage.

Has anyone ever explained why?  I know that Reagan and Bush I couldn't have gotten them through the Senate (most likely), but why didn't Bush II at least try?"

They like having extra gummint power, too. National socialists vs. international socialists.

Posted by: Fa Cube Itches at February 28, 2011 09:40 AM (xy9wk)

54 Don't forget the proper half of the Necessary and Proper clause. Congress may be empowered to to take the steps necessary to implement, but those steps must be constitutional in and of themselves. That's part of Judge Vinson's decision: The step - the mandate - was declared unconstitutional due to the commerce clause's inability to reach inaction. Which is why he said Necessary and Proper wasn't a "safe harbor".

Posted by: Jeff Weimer at February 28, 2011 09:40 AM (tuOLO)

55 Don't forget, the reason why we have a freeloader problem that makes the mandate necessary is that the gummint passed a law saying you must treat freeloaders.

Gummint created the problem they now insist must be fixed.

Posted by: FUBAR at February 28, 2011 09:40 AM (McG46)

56 Posted by: chemjeff at February 28, 2011 02:37 PM (czcue)

True.  But every Christian I know has gone through several Bibles in their lifetimes (you really can only read a given copy of a book so many times before it just falls apart), so while it wouldn't "outlaw" Christianity, it would make it much, much more difficult. 

Isn't it fun the mischief we can invent?

I'm not sure what the answer is to Congressional Over-reach, but I do know the correct answer isn't "Let one part of the Federal Government decide what powers another part of the Federal Government has."

Posted by: AllenG (Dedicated Tenther) at February 28, 2011 09:40 AM (8y9MW)

57 IDDQD

Posted by: The Commerce Clause at February 28, 2011 09:40 AM (xTyNV)

58 The worst thing that can befall a leader of an extreme party is to be compelled to take over a government in an epoch when the movement is not yet ripe for the domination of the class which he represents and for the realisation of the measures which that domination would imply ...


Woe is us.

Posted by: Untied Progressives for Obama at February 28, 2011 09:42 AM (kr609)

59 @13: "You know, this is what I've never understood.  IIRC, FDR had to fill the Supreme Court with something like 13 Justices to get his unconstitutional power grab accepted.  Yet, now that we're down to 9, no conservative President wants to go to the mattresses and appoint 5 more strict constructionists to undo some of that damage.

Has anyone ever explained why?  I know that Reagan and Bush I couldn't have gotten them through the Senate (most likely), but why didn't Bush II at least try?"


He didn't court-pack, he just threatened to do so.  Then the Justices reconsidered their principles ("a switch in time saves nine").

The reason Presidents don't try is popular disagreement.  Even FDR caught some backlash.  The SCt is still one of the most trusted institutions in America, and people would go nuts if the President pulled something like that for purely political reasons.

Posted by: FUBAR at February 28, 2011 09:43 AM (McG46)

60 Call me old-fashioned, but why don't these assholes just amend the constitution?
These machinations should all be unconstitutional. I know all about right and wrong, but legal and illegal? Oh no, you gotta be a lawyer to understand that.

Posted by: Ex-Republican genius at February 28, 2011 09:43 AM (le5qc)

61 Out with the old tired stuff and Win The Future with Obama and friends. We have brand new books for you available at your local job service offices new starting this spring at your community organizing offices.

Rules for Radicals, Dreams From My Father, and The Audacity of Hope, for starters.

Posted by: blue star at February 28, 2011 09:45 AM (4OCrT)

62 Posted by: FUBAR at February 28, 2011 02:43 PM (McG46)

You mean, like they did when an unconstitutional power-grab and rape of liberty was being pushed through Congress in the dead of night with no time for debate, let alone reading?  That kind of "go nuts?"  Or do you posit that there would be a further level of "go nuts?"

Posted by: AllenG (Dedicated Tenther) at February 28, 2011 09:45 AM (8y9MW)

63

Mandate this mandate that. Commerce this clause that. Regardless I'm somewhat confident that ObamaCare goes down when it reaches SCOTUS. Remember Coinflip Boy a while back indicated that he would not retire while President Party Animal was still CiC. His reasoning wasn't stated specifically but I would suspect that even he can see the Constitutional overreach that has precipitated as a result of electing President Present.

America's problems are obvious and those problems aren't going to be resolved by foisting a precedent of unlimited authority via the Commerce Clause in addition to the fiscal disaster that O Care brings on its own. I doubt that Kennedy want to be remembered as the deciding vote that helped to precipitate America's disunion or fiscal implosion. Supporting the mandate (and that means Obamacare) means he will have done just that.

Posted by: Wonkish Rogue at February 28, 2011 09:45 AM (/sE4s)

64 Fuck it, anyone want to go to Vegas?

Posted by: Holger at February 28, 2011 09:46 AM (YxGud)

65 Posted by: Ex-Republican genius at February 28, 2011 02:43 PM (le5qc)

Because amending the Constitution requires the States to ratify the amendment (3/5 I think?  I don't have it in front of me...), and they know they won't get it done.

Posted by: AllenG (Dedicated Tenther) at February 28, 2011 09:46 AM (8y9MW)

66 P.S.  Republican Presidents won't even invalidate the Executive Order that makes public sector unions legal.  You think they're going to pack the Court?

Also, what would keep the next Democrat President from appointing even more Justices?  There's no limit.

Posted by: FUBAR at February 28, 2011 09:46 AM (McG46)

67 Posted by: FUBAR at February 28, 2011 02:46 PM (McG46)

Which is where we return to the importance of the States taking that particular power back.

Posted by: AllenG (Dedicated Tenther) at February 28, 2011 09:47 AM (8y9MW)

68 64 Fuck it, anyone want to go to Vegas?

Posted by: Holger at February 28, 2011 02:46 PM (YxGud)

I am in and I have three cases of Valu rite that Ace won't pick up.

What was that credit card number again??



Posted by: Kemp at February 28, 2011 09:48 AM (JpFM9)

69 Posted by: AllenG (Dedicated Tenther) at February 28, 2011 02:46 PM (8y9MW)

And it won't get done because it isn't the right thing to do. So they gotta be sneaky about it.

Progressives never ask themselves the following; "How can our ideas be right if they aren't popular?"

Posted by: Holger at February 28, 2011 09:48 AM (YxGud)

70 IIRC, FDR had to fill the Supreme Court with something like 13 Justices to get his unconstitutional power grab accepted.

No, he "tried" to get 13 justices and make a mandatory retirement age that would allow him to dismiss a bunch and appoint replacements.  Even the Dem Senate would not go that far at the time and they blocked it.

He achieved what he wanted though because some of the more elderly went ahead and retired out of pressure and he was in office for so long he got all of the court packed with rubber Constitution stretching socialists that would allow anything he wanted.

Posted by: Vic at February 28, 2011 09:48 AM (M9Ie6)

71 You mean, like they did when an unconstitutional power-grab and rape of liberty was being pushed through Congress in the dead of night with no time for debate, let alone reading?  That kind of "go nuts?"  Or do you posit that there would be a further level of "go nuts?"

Posted by: AllenG (Dedicated Tenther) at February 28, 2011 02:45 PM (8y9MW)

I posit there would be a further level of "go nuts."  Bipartisan, even.  I would be opposed to packing the Court, conservatives or not.

Posted by: FUBAR at February 28, 2011 09:49 AM (McG46)

72

@60

Because they can't. The constitution was made to be hard to amend by design.

These asshats can't even reach 50% approval on Obamacare as it is.

Posted by: JollyRoger at February 28, 2011 09:50 AM (NCw5u)

73 We must remember also that a federal judge has discerned that the "mandate" is inseperable from the rest of the law.  So if the mandate is declared unconstitutional, then the whole law is moot.  Dear Leader and the rest of the dems know this now.  I think that the ruling that the circuit courts give will have a heavy bearing on how the SCOTUS views this.  But, beware.  This regime has a habit of not abiding by court rulings.  Before 2012 comes around, we will have a constitutional crisis.  My guns are cleaned and the ammo is stocked.

Posted by: Soona at February 28, 2011 09:50 AM (efdtN)

74 Ace is correct about a health care tax.  in fact, we already have that.  It is called the Medicare portion of the FICA payroll taxes.

Right on, Ace.  the fucking weasel Dems had the votes to do just about anything they wanted, but they tried to make it look like we weren't going to be "taxed".  That, I believe (as you do apparently) will prove to be their downfall.

A simple tax equivalent to the current Medicare portion of FICA could have given every American a safety net of catastrophic protection - which would have in turn driven prices for basic health insurance into the ground.  But that would have left powers in the hands of the American people, and that wouldn't do for Obambi.

Posted by: Chi-Town Jerry at February 28, 2011 09:51 AM (f9c2L)

75 The question is, what will the circuit courts do? The 4th circuit is majority dem appointee but is said to be one of the conservative courts in the country even with some oble appointees. The 11th is preety conservative but the 4th starts hearings in May I believe.

Posted by: Flapjackmaka at February 28, 2011 09:51 AM (c5RQr)

76 Which is where we return to the importance of the States taking that particular power back.

Posted by: AllenG (Dedicated Tenther) at February 28, 2011 02:47 PM (8y9MW)

I'm from Alabama.  Don't think you can out-federalism me.  I'm with you every step of the way.

Posted by: FUBAR at February 28, 2011 09:51 AM (McG46)

77 Posted by: Holger at February 28, 2011 02:48 PM (YxGud)

Because they live by the dual mottos: "What ever is right is not always popular" and "If you have good intentions, what you're doing is good."

Posted by: FUBAR at February 28, 2011 02:49 PM (McG46)
I tend to doubt it.  I think there are enough people who embody "sound and fury signifying nothing" that we'd have about what we had in 2009/2010.

Here's hoping we never find out, I suppose.

Posted by: AllenG (Dedicated Tenther) at February 28, 2011 09:51 AM (8y9MW)

78 After the expansion of federal power during the new deal, courts have just read past this, and even Scalia has become comfortable with the Commerce Clause as used in this manner. (See Reich, although Thomas did dissent)

Scalia ruled in favor of it so that they could strike down the CA marijuana law. This was the true test of Scalia that showed him to be an "activist" conservative judge instead of a "textualist" as most scholars had called him before. Thomas did rule correctly on that one.

I suspect that Thomas disliked "medical marijuana" as much as Scalia but he could find no intent in commerce in someone growing a pot plant.

Posted by: Vic at February 28, 2011 09:53 AM (M9Ie6)

79

66 Republican Presidents won't even invalidate the Executive Order that makes public sector unions legal. 

JFK originally signed that as an EO, but Congress passed a separate law a year later.

Posted by: The Q at February 28, 2011 09:53 AM (MYuEC)

80 The question is, what will the circuit courts do? The 4th circuit is majority dem appointee but is said to be one of the conservative courts in the country even with some oble appointees. The 11th is preety conservative but the 4th starts hearings in May I believe.

Posted by: Flapjackmaka at February 28, 2011 02:51 PM (c5RQr)

Why is that the question?  There's already a split amongst the circuits, and the SCt was gonna use any excuse to weigh in on it anyway.

Posted by: FUBAR at February 28, 2011 09:54 AM (McG46)

81

JFK originally signed that as an EO, but Congress passed a separate law a year later.

Posted by: The Q at February 28, 2011 02:53 PM (MYuEC)

But of course.  Thanks for the nollij.

Posted by: FUBAR at February 28, 2011 09:56 AM (McG46)

82 Posted by: Soona
------
Not only one of the judges striking down Obamacare, but also the recent ruling by the lib judge (Kessler) upholding Obamacare also used language that indicated she didn't think they were severable either.

Posted by: Chi-Town Jerry at February 28, 2011 09:57 AM (f9c2L)

83

Yeah, because all of his appointments turned out to be awesome! 

Posted by: Fa Cube Itches at February 28, 2011 02:37 PM (xy9wk)

You forget the point of the 60 DeMints. RR was burdened with a Dem Senate and a pile of squishes who allowed Bork to get Borked. 

The only appointment I fault RR for was Sandra Day O'Flip-Flop.

Posted by: Vic at February 28, 2011 09:58 AM (M9Ie6)

84 ...the broad grant of power to tax afforded Congress by the 17th amendment...

Ace, you mean the 16th amendment in connection with the power to raise taxes.

Posted by: jhstuart at February 28, 2011 09:59 AM (56M1t)

85 P.S.  Republican Presidents won't even invalidate the Executive Order that makes public sector unions legal.  You think they're going to pack the Court?

That XO was backed up by a congressional act a few months later. It will take a new act of congress to get rid of it.

Posted by: Vic at February 28, 2011 10:02 AM (M9Ie6)

86

Why is that the question?  There's already a split amongst the circuits, and the SCt was gonna use any excuse to weigh in on it anyway.

Posted by: FUBAR at February 28, 2011 02:54 PM (McG46)

There is a split among districts not circuit courts. The circuit court rulings could have an impact on the SCOTUS ruling. Plus I don't think Kennedy can be persuaded by the lightweights of kagan and sotomayor and will listen to the more experienced judges.

Posted by: Flapjackmaka at February 28, 2011 10:05 AM (c5RQr)

87 "Some of these I think I thought of myself, but I doubt I actually thought of them first; I'd bet a huge pile of money (if I had such) others have thought of this stuff long before me"

Yeah Ace, Thomas Jefferson kinda addressed this as well when Hamilton was proposing the entire national bank thang. I think he reached similar conclusions as you concerning these "clauses"....

Here's a link to the entire bit that Jefferson gave to Washington....

http://avalon.law.yale.edu/18th_century/bank-tj.asp

Posted by: Duncan at February 28, 2011 10:06 AM (qvXGY)

88 Yeah Ace, Thomas Jefferson kinda addressed this as well when Hamilton was proposing the entire national bank thang. I think he reached similar conclusions as you concerning these "clauses"....

That laying of the "central bank" was a Federalist and later a Whig thing that was part of the "American System" that the big government liberals of the day firmly believed in.

The idea was to pull money and power to the central government that allowed the central government to build "improvements" using civilian contractors that were the friends of the Whigs.

IOW, the GE's of the 18th century. Jefferson was deathly opposed to this kind of power grab and corruption.

Posted by: Vic at February 28, 2011 10:15 AM (M9Ie6)

89 How about the obvious conflict with the First Amendment?  Since Christian Scientists don't go to medical doctors, they are not participating, yet somehow affecting interstate commerce and messing with Zero Care.  Therefore, outlaw Christian Science.

Posted by: Chuckit at February 28, 2011 10:20 AM (ZhK6O)

90 Ace, I think you're mixing up the 17th and 16th amendments. I generally agree with your premise though.

Posted by: Swanny at February 28, 2011 10:23 AM (nOOeI)

91 I suspect that Thomas disliked "medical marijuana" as much as Scalia but he could find no intent in commerce in someone growing a pot plant.

Hey, Doritos don't just appear out of nowhere.

Posted by: Dave at February 28, 2011 10:27 AM (6OwZc)

92 How about the obvious conflict with the First Amendment?  Since Christian Scientists don't go to medical doctors, they are not participating, yet somehow affecting interstate commerce and messing with Zero Care.  Therefore, outlaw Christian Science.

Posted by: Chuckit at February 28, 2011 03:20 PM (ZhK6O)

How about, using Judge Kessler's logic, "women on welfare who choose not to have an abortion are directly affecting Federal spending on programs like WIC and education when they have babies they can't afford: therefore, the Federal government has the power to mandate that they have abortions"?

Posted by: stuiec at February 28, 2011 10:28 AM (Di3Im)

93
"How about the obvious conflict with the First Amendment?  Since Christian Scientists don't go to medical doctors, they are not participating, yet somehow affecting interstate commerce and messing with Zero Care.  Therefore, outlaw Christian Science."

There's also the exemption given to those who have a religious objection to insurance (on the grounds that is a form of gambling), such as the Amish and, er, Muslims.

Posted by: Brown Line at February 28, 2011 10:33 AM (VrNoa)

94 To regulate Commerce with foreign Nations, and among the several States,

If I read regulate as ensure proper functioning and among the several States as being directly between multiple states then it's even less than trade wars.  So Congress could tell Georgia and Mississippi to stop demanding Florida pay a water tax for the Apalachicola River just because they got a purty mouth.




Posted by: Obviously not a Constitutional Scholar at February 28, 2011 10:40 AM (6OwZc)

95

How about, using Judge Kessler's logic, "women on welfare who choose not to have an abortion are directly affecting Federal spending on programs like WIC and education when they have babies they can't afford: therefore, the Federal government has the power to mandate that they have abortions"?

Posted by: stuiec at February 28, 2011 03:28 PM (Di3Im)

 

The possibilities of this kind of judicial logic are endless.  Seriously.  You don't think the dems have already thought of this.  Give them the time, and it'll become reality.

Posted by: Soona at February 28, 2011 10:43 AM (efdtN)

96 Good point on Necessary & Proper, Ace, but I'll go a little further: Obamacare's defenders argue that the mandate is "necessary" to prevent free-riding. The idea of course is that any sane person would take advantage of the prohibition on declining coverage for pre-existing conditions by putting off buying health insurance until he got sick. The mandate is thus "necessary" to ameliorate the unintended consequences of other parts of the law. I will concede that Congress may regulate how private health insurers choose customers and set prices. However, a mandate to buy insurance is not "necessary" to put those regulations into effect. Rather, the mandate is "necessary" only to prevent the health insurance market from failure caused by the rest of the law. If Obamacare's defenders are correct, then the N&P clause grants Congress the power to pass laws that relates to any consequence of any other law passed by Congress. THIS is unlimited power.

Posted by: Masturbatin' Pete at February 28, 2011 10:52 AM (ZXD6K)

97 At other websites, there was a discussion of Necessary and Proper in relationship to the Constitution, specifically to ObamaCare.  The gist was N&P in itself was not a constitutional power of Congress but the mechanism to make sure that their other constitutional powers could be implemented.

For a further idea on this, look at some of our constitutional amendments.  They insert sections that state to teh efefct that Congress has the power to create legislation to enforce the amendment.  For examples see:  Amend. 18, Sec. 2; Amend. 19, Sec. 2; Amend. 24, Sec. 2; Amend. 26, Sec. 2.  Further note that Amend. 18 gave the Congress and the several states concurrent power to enforce by legislation.

If N&P has standing by itself, why were these sections inserted into the amendments?

Posted by: John P. Squibob at February 28, 2011 10:53 AM (/U/Mr)

98 You're missing the point, Ace--if you don't support Obamacare, you ARE Hitler! *dun dun dun*

Posted by: R. Waher at February 28, 2011 10:56 AM (7bCRf)

99 2 things

One side has unlimited legal resources, a lot of judges,  all of the badges and a lot of guns.

What have you got?

I thought so.

and

We should not have a Constitutional Convention, if we do, with the current state of the electorate, it is very possible that what will emerge from the process will be unrecognizable to any conservative. It will come out containing quotations from Marx and Engels.

Posted by: navybrat at February 28, 2011 12:22 PM (zQZbg)

100 We should not have a Constitutional Convention, if we do, with the current state of the electorate, it is very possible that what will emerge from the process will be unrecognizable to any conservative. It will come out containing quotations from Marx and Engels.

Keep in mind that constitutional changes are approved by individual States and not by the "population". we still have true federalism there.

Posted by: Vic at February 28, 2011 12:56 PM (M9Ie6)

101 Keep in mind that constitutional changes are approved by individual States and not by the "population". we still have true federalism there.

Of course. I live in California. I am surrounded by people whose beliefs are 100% out of kilter with my own. It tends to taint my conclusions...

Posted by: navybrat at February 28, 2011 01:04 PM (zQZbg)

102 Those powers NOT specifically granted to the federal government are retained by the states and the people.

Now I wonder where I read that...

Any thoughts, Ace?

Posted by: Blacksmith8 at February 28, 2011 04:17 PM (Q1qy3)

103 As has been pointed out, FDR didn't add any justices to the Court, he just threatened to.  The number has been at 9 since 1869. 

And no, it's not just "popular opinion" that keeps it there . . . it's set at 9 by federal law, the Judiciary Act of 1869 (the Circuit Judges Acts), 16. Stat. 44. 

Posted by: A J at February 28, 2011 07:48 PM (zKVY+)

104 Great posting Ace.  I enjoyed reading it and am going to use it in more discussions about mandates.

Posted by: Draki at February 28, 2011 09:36 PM (5Cbz0)

105 Smack down delivered. This is a great write up and needs to be read by everyone of my friends who still believes in the healing power of Ocare.

Posted by: AkRonin at March 01, 2011 03:52 AM (SLcC3)

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