Clause Escape

Are you committing interstate commerce by doing nothing?

During Supreme Court Justice Elena Kagan's confirmation hearings last summer, Sen. Tom Coburn asked her whether a law requiring Americans to eat their fruits and vegetables could be justified as an exercise of the federal government's constitutional authority to "regulate commerce…among the several states." Kagan's stubborn resistance to answering Coburn's question suggested it was not as wacky as it may have seemed.

In fact, the Oklahoma Republican was merely applying President Obama's logic in defending the Patient Protection and Affordable Care Act's requirement that Americans purchase government-approved health insurance. According to Obama, the federal government can make you do something if your failure to do it, combined with similar inaction by others, has a "substantial effect" on interstate commerce. By rejecting that premise on Monday, U.S. District Judge Henry E. Hudson took a stand for the principle that Congress may exercise only those powers that are specifically enumerated in the Constitution.

It's about time someone did. Over the years, the Supreme Court, acceding to the legislative branch's power grabs, has transformed a provision aimed at eliminating internal trade barriers into an all-purpose excuse for nearly anything Congress decides to do.

In 1942, for instance, the Court ruled that the Commerce Clause authorized punishing a farmer for violating federal crop quotas by growing wheat for his own consumption. Although the grain never left his farm, let alone crossed state lines, the Court reasoned that such self-sufficiency, writ large, had a "substantial economic effect" on interstate commerce in wheat. In 2005 the Court used similar logic to uphold federal prosecution of patients who grow marijuana for their own medical use.

Thus was the power to regulate interstate commerce deemed to cover activities that were neither interstate nor commercial. But as broad as those rulings were, Judge Hudson wrote in response to a lawsuit by the state of Virginia, both involved people who chose to do something (grow wheat or pot) that "placed the subject within the stream of commerce."

The health insurance requirement, by contrast, applies to anyone living in the United States. For Hudson, this lack of choice was decisive. "Neither the Supreme Court nor any federal circuit court of appeals has extended Commerce Clause powers to compel an individual to involuntarily enter the stream of commerce by purchasing a commodity in the private market," he wrote. "At its core, the dispute is not simply about regulating the business of insurance—or crafting a scheme of universal health insurance coverage—it's about an individual's right to choose to participate."

Hudson rejected the Obama administration's argument that the inactivity of people who don't buy medical coverage is illusory because they are de facto choosing to pay for their health care in some other way. "This broad definition of the economic activity subject to congressional regulation lacks logical limitation and is unsupported by Commerce Clause jurisprudence," he wrote. "The unchecked expansion of congressional power to the limits suggested by the [insurance mandate] would invite unbridled exercise of federal police powers."

In Obama's view, the failure to buy medical coverage can be treated as a federal offense because that failure, aggregated across millions of people, has a substantial effect on the interstate market in health care. But the same thing can be said of the failure to exercise, the failure to get enough sleep, the failure to brush your teeth, the failure to wear a coat in cold weather, and the failure to eat a proper diet.

Which brings us back to Tom Coburn's question about a federal fruit-and-veggie mandate. Although he presented himself as a strict constructionist worried about Kagan's "expansive view of the Commerce Clause," Coburn brags about writing the Partial-Birth Abortion Ban Act. Guess which provision of the Constitution supposedly justifies that egregious overextension of federal power. Like the medical marijuana case, this contradiction shows that a properly limited federal government is not necessarily something that conservatives welcome or that progressives should fear.

Jacob Sullum is a senior editor at Reason and a nationally syndicated columnist.

© Copyright 2010 by Creators Syndicate Inc.

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  • Suki||

    Good morning reason!

  • Douglas Fletcher||

    Do you live in the Atlantic Ocean? You get up very early.

  • Suki||

    No, I am a land human.

  • ||

    Seasteaders, unite!

  • F'em Up Chuck||

    Yay for us! The little people's voice just may be consistant with what the constitution and common sense say. And good morning to you.

  • DJF||

    “”””U.S. District Judge Henry E. Hudson took a stand for the principle that Congress may exercise only those powers that are specifically enumerated in the Constitution.”””

    If this was actually enforced more then half the Federal government would disappear. Unfortunately there are plenty of other judges who think their job is to come up with rulings which support government policy, not enforce the Constitution.

  • ||

    If half the Federal Government would disappear; let's strictly enforce the Constitution. The sooner the better and it will reduce the Deficit!

  • sarcasmic||

    Only half?

  • ph||

    It is not surprising that government courts side with government most of the time.

  • Douglas Fletcher||

    I never liked Obama's policies but I used to think he was at least a nice person.

    Actually, that last part is a lie. I wouldn't trust him with my worst enemy's dogshit.

    He has to go.

    letsmakeobamaresign.blogspot.com

  • Johnny Longtorso||

    Quit whoring your blog.

  • Good Morning||

    I agree.

    And you should check out quitwhoringdouglasfletcher'sblog.com for more details.

  • Douglas Neidermeyer||

    +10.

  • MNG||

    "U.S. District Judge Henry E. Hudson took a stand for the principle that Congress may exercise only those powers that are specifically enumerated in the Constitution."

    Except that the power "to regulate" interstate commerce IS one of the enumerated powers (Art. I, Sec. 8).

  • ||

    If you can't purchase health insurance across state lines, by definition, it isn't interstate commerce.

  • MNG||

    Rubbish. The health insurance market is indeed interstate. Companies like Aetna, Blue Cross, etc., offer policies in multiple states. You are required to have a representative of these interstate companies that is in your state and your particular policy must meet state regulations, but the dollars from many policies in many states ends up in in those multi-state company coffers.

  • ||

    Everything is interstate commerce MNG. If the government can force you to buy insurance from a private company, what can't they force you to do? Forget about what the commerce clause allows under you interpretation for a moment. And tell me what you think the commerce clause prohibits. If you can't give me concrete and specific things that your interpretation of the clause prohibits, you have essentially read it out of the Constitution. And your interpretation thus cannot be valid.

    And don't give em examples of things that are prohibited by other parts of the Constitution like ex-post facto laws or forcing people to adopt a single religion. I want to know something the commerce clause and it alone prohibits. Until you can do that, your interpretation cannot be considered valid.

  • Jeffersonian||

    Indeed, the "liberal" interpretation tells us that the 13th and 18th (and therefore the 21st) Amendments were entirely superfluous. Think about it.

  • Jeffersonian||

    Indeed, the "liberal" interpretation tells us that the 13th and 18th (and therefore the 21st) Amendments were entirely superfluous. Think about it.

  • Jeffersonian||

    Indeed, the "liberal" interpretation tells us that the 13th and 18th (and therefore the 21st) Amendments were entirely superfluous. Think about it.

  • Jeffersonian||

    [slinks away in multi-post shame]

  • MNG||

    Er, what's superflous is two of these posts ;)

    A child could see where you were going with the alcohol question. My answer is simple: the backers of prohibition and/or the judiciary of the time were bound by an incorrect view of the IC clause. Many past views on the Constitution were incorrect.

    Not sure what you are getting at by the reference to the 13th.

  • MNG||

    Er, what's superflous is two of these posts ;)

    A child could see where you were going with the alcohol question. My answer is simple: the backers of prohibition and/or the judiciary of the time were bound by an incorrect view of the IC clause. Many past views on the Constitution were incorrect.

    Not sure what you are getting at by the reference to the 13th.

  • Jeffersonian||

    Wasn't slavery interstate commerce, by your definition?

  • Matrix||

    Hell, they could have easily argued against slavery and abolished it using the Commerce Clause! Too bad they never used it like that in the 19th Century.

  • MNG||

    I imagine one could think of examples of slavery and servitude that would not be inter-state commerce.

    Besides, as I've pointed out, the fact that people at that time thought these things could not be done without an amendment does not mean they were correct (in fact it doesn't even prove that, they may have simply preferred to go the amendment route).

  • Jeffersonian||

    I suppose one could, but it's not likely, particularly when one expands the definition of "interstate commerce" to include not only intrastate commerce *and* things that may affect inter- and intrastate commerce.

    Isn't it odd that Supreme Court decisions were virtually unanimous in their view of the limitations of the ICC until said court was bullied and then packed with one politician's stooges?

  • Matrix||

    Hey, don't pick on the progressives' favorite president of all time. the New Deal helped us get out of the Great Depression caused by capitalism... or haven't you been paying attention to your state sponsored educators?

    I think it's time you were reeducated! Everything before FDR was evil! He is the predecessor of a future progressivist messiah we will have. We hoped Obama would be the One, but he is falling off the path!

  • Jeffersonian||

    I'm almost certain that my constitutional heterodoxy (or orthodoxy, depending on how you look at it) is adversely affecting interstate commerce, hence subject to rectification by the Central State.

  • ||

    "Those slaves were born and raised entirely within our great State, for our own use within the State. Do y' mean ta tell me, suh, that by growin' our own livestock to satisfy our own needs, we were engaging in interstate commerce? Why that's pre- pre-, I say pre-POS-terous!"

    Too bad this case was never raised in the 1800s. I would have been interested to read the corresponding Supreme Court opinion.

  • ||

    commerce in slavery was illegal under federal law from the start. We even had a ship in the navy whose sole job was enforcing the law. At the time though it was recognized that states were sovereign so that the federal law only covered the traffic from other countries. Now it's recognized that the states are just little pockets the federal government draws money from.

  • MNG||

    I've said many times that I think the Lopez and Morrison decisions to be correct and good examples of limitations. The activity must be directly economic to be regulated.

  • ||

    That is still meaningless MNG. Everything I do from breathing to eating to anything else affects commerce. And further, I don't see how the Lopez and Morrison decisions are still valid if you consider the clause to encompass the failure to do something.

    Try again. And this time show your work.

  • MNG||

    I guess you have'nt read Lopez and Morrison because they directly speak to your concerns. Perhaps you can take a break from writing without thinking and read them?

    As to your one actual question: Lopez and Morrison said the activity must be directly (see?) economic. Deciding to buy or not buy something in the stream of inter-state commerce is certainly an economic decision (what do you think it is, a romantic or theological decision?).

    Here we are in a season in which retailers and manufacturers around the country are fixated hoping and thinking that people will move from indecision to decision on whether to purchase items in interstate commerce; try telling them these decisions are not directly concerned with their commerce...

  • sarcasmic||

    What we need is a law mandating that everyone spends a certain amount of money on gifts during the holidays.

    This will help retailers and manufacturers who might be hurt if people do not spend the proper amount of money this season.

    There is no problem that cannot be solved with legislation.

  • MNG||

    Look, not everything that is constitutionally allowable should be done. I actually think mandating Xmas purchases and the health insurance mandate are stupid/immoral ideas.

  • ||

    Regulating speech is a bad idea to. Does that mean we should read the 1st Amendment out of existence and just trust the government on that?

  • Jeffersonian||

    We're finally at the point of what the Left has been braying for decades: Everything is politics.

  • Barely Suppressed Rage||

    not everything that is constitutionally allowable should be done.

    And not everything that someone thinks "should be done" - or even desirable or desired by the majority - is constitutionally allowable.

  • ||

    Aaaah, sweet legislation. Is there anything it can't do??

  • ||

    I have read both cases. And you are being completely dishonest about them. The activity must be economic. But it must be an activity. Never in the history of the clause have we ever considered the failure to do something to be commerce. Even Wickard involved the affirmative act of producing your own food. The majority opinion was about "activity" not non activity. So it doesn't apply here.

    I would also point out that Stevens, Suiter, Briar and Ginsburg all dissented in Lopez. Your pulling an interpretation out of your ass that neither the majority nor the minority would buy.

    What we are left with is that there is virtually no aspect of human life that you don't believe the federal government has the power to control, except maybe one particular gun case that is pretty much limited by its facts.

  • Christian Scientist||

    Not theological ? I disagree and converted right after this passed.

  • Barely Suppressed Rage||

    Deciding to buy or not buy something in the stream of inter-state commerce is certainly an economic decision.

    What if I did not "decide" not to buy something? I.e., the thought of whether to buy it or not never crossed my mind - it was not something I even considered or thought of. I merely am conducting my life as an American citizen, NOT engaging in any activity that could be considered "commerce among the states", when Congress all of sudden tells me, "hey, you there - buy some health insurance or we'll fine you."

    How the fuck is that "regulating commerce among the several states?"

    Only by the most extreme, incredibly loose and disingenuous stretching of the applicability of the Commerce Clause can that even laughingly be called "commerce among the states." As Hudson correctly noted, not even Wickard v. Filburn or Gonzales v. Raich goes that far.

    You feel that Lopez and Morrison were correctly decided, because there was not enough of a connection to interstate commerce in those cases, yet you feel there IS a connnection to commerce when a person is simply sitting on their front porch, breathing air and watching the world go by?

    It simply makes no sense.

  • ||

    MNG, I took your advice and read Morrison and Lopez. One thing that that stood out to me was this statement from the Lopez decision and then quoted from Lopez in the Morrison decision:

    "Congress could regulate any activity that it found was related to the economic productivity of individual citizens: family law (including marriage, divorce, and child custody), for example. Under the[se] theories ... , it is difficult to perceive any limitation on federal power, even in areas such as criminal law enforcement or education where States historically have been sovereign. Thus, if we were to accept the Government's arguments, we are hard pressed to posit any activity by an individual that Congress is without power to regulate."

    This statement was made in response to the governments argument that the possession of a gun in a school zone effects commerce (Lopez). The argument made by the government on why the ICC granted congress the authority to regulate gun possession in a school zone, "the costs of violent crime are substantial, and, through the mechanism of insurance, those costs are spread throughout the population". Replace "violent crime" with "the uninsured" and you have the exact same argument made to support the individual mandate, and the court rejected it.

  • sarcasmic||

    We can cure all preventable illness by making a law that punishes people who do not follow their doctor's orders.

    If the doctor tells you to lose weight, and you refuse, then it's off to Michelle Obama's Obesity Education Camp for you!

    If the doctor tells you to change your diet, and you refuse, then it's off to Jamie Oliver's Food Education Camp for you!

    Say goodbye to heart disease, diabetes, and all other preventable illnesses!

    There is no problem that cannot be solved with legislation.

  • Matrix||

    So we can also ban all extreme sports, or heck, all sports for that matter. Only allow people do to exercises that pose a very minimal risk to the one exercising and those around them. Push ups and sit ups are about it, or any other exercise that requires no instrument. Even running is dangerous when outdoors. Maybe just have people run around in small circles in their front or back yards.

  • #||

    So MNG,

    the fact that it is the interstate commerce clause and not just teh commerce clause, that supposes that there is commerce that is not interstate. By your definition, what activities are commerce (economic), but not interstate?

  • ||

    Rubbish. MNG, your illogic is ridiculous. If an individual is not involved in an interstate transaction, his actions are NOT interstate commerce. PERIOD. Your stretching reason beyond the point of insanity - just like our corrupt judiciary.

  • Mike Laursen||

    True, the holding companies are interstate, but use of the products themselves cannot be retained when one moves to another state. (Actually, I believe many policies have a 6-month grace period of continued coverage or some similar clause.)

    So, you could end up being correct, legally. To answer that, we'd need a more precise definition of the scope of interstate commerce. We may get that when the Supreme Court reviews the case.

  • Jerry||

    I think the original intent was to prevent states from erecting tariffs, having discriminatory practices between in & out-of-state companies, etc. etc.

  • Matrix||

    that IS the original intent!

  • MNG||

    The original intent of the 14th Amendment was to provide equal protection of the law to blacks in the Southern states, but the words written support protecting white folks from affirmative action programs. So I think it more important to go with what was written than what some of the legislators seemed to expect of what was written.

    Besides, what could fit more comfortably under making interstate commerce in health insurance more regular and orderly than to have a uniform mandate that everyone in every state must comply with?

  • DJF||

    Besides, what could fit more comfortably under making interstate commerce in Fox News(Fox being an interstate corporation) more regular and orderly than to have a uniform mandate that everyone in every state must watch at least 6 hours of Fox News a day?

    Or making everyone buy a gun, or make everyone wear Mickey Mouse hats since Disney is a interstate corporation. Or preventing someone from growing food on their own land for their own use because this will reduce interstate commerce in food, oops they already did that.

  • Jeffersonian||

    According to MNG, nothing prevents the federales from doing that. He may object on political or personal grounds, but really, this is just his monster - now running amok - getting its hands around his neck.

  • ||

    Who knows what the original intent was? In order for the 14th amendment to have any meaning, it must be applied as written to ALL individuals regardless of race (even those evil white folks) or ethnicity. Once exceptions are made or the words are "stretched" to mean something entirely different, the law and constitution become utterly meaningless. That is why it is vital for the welfare of the American people that the judiciary start doing their f'ing jobs and following the letter of the law - i.e., interpreting "interstate commerce" to mean just that, commerce that is interstate. PERIOD. Not actions that affect commerce, or actions that are in the "stream of commerce" (WTF?), or some other insane nonsense.

  • MNG||

    You find the stream of commerce idea to be that confusing?

    Look, let's say you make widgets. You make them in Ohio, and they are sold in stores in all 50 states. Are you saying that federal regulations regarding said widgets would be effective only for the ones that actually travel outside the state? What would you do, mark the ones that are going to be sold in Ohio and then you can make them, move them, etc., differently? WTF? And hell, you don't know when or if they will travel interstate (think of second hand purchases). Do the regulations suddenly become applicable when and if they do? How the f*ck would such a regulatory scheme work at all?

    Your "letter of the law" idea is silly. Think of the Commander in Chief clause for example...

  • Barely Suppressed Rage||

    Are you saying that federal regulations regarding said widgets would be effective only for the ones that actually travel outside the state?

    No, because the company is engaged in commerce among the states.

    What if a company had only local employees, used only local raw materials, and made a product that it sold only locally, and never marketed or advertised out of state - the product is intended only for local, in-state distribution, sale and use.

    Under the original understanding of the provision, it would be beyond Congress's power, because the company is not engaged in commerce among the states, and the product does not travel in interstate commerce.

  • ||

    Are you saying that federal regulations regarding said widgets would be effective only for the ones that actually travel outside the state?

    Yes, exactly. Thats what the interstate commerce clause says. The company that engages in commerce may not regulated, its the commerce itself (ie, the sale of goods) that may be regulated.

  • ||

    Are you saying that federal regulations regarding said widgets would be effective only for the ones that actually travel outside the state?

    Yes, exactly. Thats what the interstate commerce clause says. The company that engages in commerce may not regulated, its the commerce itself (ie, the sale of goods) that may be regulated.

  • Dave||

    It's not confusing, it's just idiotic.

    In answer to your question, yes the regulations only become applicable when and if the products are SOLD across states lines. This IS the definition of interstate (across state lines) commerce (commercial activities, i.e. buying and selling). If the "regulatory scheme" does not work under these constitutional limitations, it should not exist.

    See. Simple logic.

  • ||

    "The original intent of the 14th Amendment was BLAH, but the words written support OTHER-BLAH. So I think it more important to go with what was written than what some of the legislators seemed to expect of what was written."

    This is a very good reason not to pass ANY legislation unless there is just no other alternative. Future mis-construction, contrary to the original(-ly advertised) intentions of the authors, seems inevitable, if you just wait long enough.

    Every debate on every bill needs to include -- without possibility of waiver -- four questions, which must be investigated thoroughly (enough) and answered clearly: 1) Is there a real problem? 2) Is an Act of Congress the ONLY (not just the best in someone's opinion, but the only available) way to solve the problem? 3) Being necessary and optimum, does this bill solve the problem in a way that does the least damage to liberty? 4) Is the Bill constitutional? The Congress should have roll-call votes on each of these separate, yes/no questions, after suitable inquiries into each in both chambers. Later, citizens could look back and see the record of the investigations, and the record of who was or was not persuaded by the evidence and testimony presented in each case, as they considered whether their elected representatives should be returned to Congress.

    I think that fulfilling such a requirement would slow down the Congress, focus them on the proper issues, and provide for accountability at election time. I doubt I'll ever see such a thing implemented in my lifetime, but where there's life, there's hope.

  • Botox Porcupine||

    Not the case. See Darby, Wickard, Raich.

    Ever since King Roosevelt II outlived the Four Horseman the Commerce Clause can be applied to any activity "that substantially affects interstate commerce."

    Check out the dissenting opinions in Raich, though.

  • El Duderino||

    The purpose of this power was to regulate states, not businesses. If a state makes a law that unfairly cripples the interstate commerce of other states for its own gain, then the federal government can step in.

    An example of this would be if say NY charged a tariff for goods coming from MA, but did not apply the same tariff to the same goods coming from CT. Now who knows why they would want to do this, but it certainly is not fair to MA. In this situation, the federal govt. could step in and say, either all states pay or none pay.

    Regulating health insurance companies, or any private industry is not what was intended by the commerce clause.

  • Matrix||

    But does that mean that people can be required to buy things that fall under interstate commerce? Would they be required to buy fruits and veggies... or make Jews buy ham to support the pork industry... Hindus buy hamburgers to support the beef industry. Christians should then buy Ron Jeremy films to support the adult films industry! It all helps the economy flourish. Where does it end?

  • sarcasmic||

    Where does it end?
    It doesn't.
    Those who write these kinds of laws believe our income belongs to them, and that they have the right to tell us what to do with that sixty percent or so that they are kind enough to give back to us.
    They also believe that we are too stupid to make choices for ourselves, and that they must eliminate as many choices for us as they possibly can.
    To make matters worse there are idiots like Tony who believe freedom means being free from choice, free from consequence, and free from responsibility.

    In short - we're fucked.

  • Matrix||

    Might as well lobotomize all us peasants.

  • ||

    Next!

  • Ron||

    or as in THX1138 drug the mass.
    Another great movie that foretold the future.

  • Mr. Natural||

    Where does it end?

    In the grave, my boy. In the grave.

  • Matrix||

    Can't we just put all those tyrants in the grave and be done with them and their stupid laws?

  • Jeffersonian||

    I think it's coming to that, much as I hate to say.

  • cynical||

    Yes, soon the people will overthrow the libertarian tyranny and their vicious cuts to needed Big Government programs. The riots in the UK and the Alan Moore fanatic are just the beginning!

  • Ron||

    but who decides who is the tyrant and Obama has already decreed that anyone who doesn't vote for his policy is the enemy.

  • Hooha||

    "In the grave, my boy. In the grave."

    You think so? I wonder whos policies ACORN will have you voting for when you're wormfood...

  • MNG||

    I don't think the commerce clause allows the government to violate other express provisions of the Constitution.

  • Matrix||

    I specified buy it. Didn't say you could make them eat it.

  • MNG||

    I think the 1st would bar making them buy or eat. An interesting question imo is whether Christian Scientists can be forced into the mandate...

  • Matrix||

    They already target them for not giving medical treatment to their children who develop serious diseases or injuries.

  • MNG||

    A thorny question indeed. I don't think those cases you refer to are federal ones though, but I'm not sure.

  • Matrix||

    I suppose you could use that argument to also force people to or not to marry and/or have children since those things also affect commerce.

  • Jeffersonian||

    And, you know, what has been the economic effect of 40-50 million people not being born due to abortion? Can you imagine if we had another 40 million people paying into Social Security and Medicare?

    Surely that affects interstate commerce, no?

  • Matrix||

    And 40-50 million voters. Since many of those abortions came from lower income people who receive state assistance, they'd likely be raised Democrats! They're allowing the murder of their own future voters!

  • The Unborn||

    +1

  • Ron||

    they could maybe get a religious waiver, that would be enough of a reason to join some religious following.

  • Matrix||

    Yeah, but then Christian Scientists don't believe in medical interventionism. I do like being able to get medical treatment when I need it, and I do have insurance. I just do not like being FORCED to do something, even if I would normally do it. I won't cut off my nose to spite my face.

  • nekoxgirl||

    My understanding is that the health care bill does have a religious waver. If you are a Muslim you don't have to buy insurance because according to Islam, taking out insurance is a form of gambling.

  • Byron||

    Yes, because it plainly is gambling. What else could it be?

  • Botox Porcupine||

    Me neither--but it has gutted the 10th Amendment.

  • Jeffersonian||

    Hey, MNG, is the production, distribution and consumption of alcohol "interstate commerce?"

  • MNG||

    Yes.

  • Jeffersonian||

    So, can you explain the 18th Amendment? Or the 21st?

  • sarcasmic||

    Who needs amendments when you've got courts that interpret the commerce clause to mean carte blanche?

    Besides, the amendment process involves the states. The states do not matter anymore. We are one nation, under Washington, with liberty and justice for none.

  • Jeffersonian||

    MNG's explanation that everyone from 1789 to 1942 was just mistaken about the limitations of the Constitution is just too, too rich.

    We and our children and grandchildren will pay dearly for this maniacal power grab.

  • nekoxgirl||

    Yes, apparently James Madison had no idea what he was writing.

  • MNG||

    Yeah, no way we could have, say, wrong interpretations of the Constitution spanning such a period (cough, Brown v. Board, cough).

  • Barely Suppressed Rage||

    So in other words, none of the 20th Century SCOTUS decisions regarding the constitutional limits of government are wrong - only those old 19th Century ones are.

  • Mr. FIFY||

    If I make my own beer or wine... how is that "interstate commerce"?

  • Jeffersonian||

    Shhhh....there's a point here that MNG gets, but is being dishonest about.

  • sarcasmic||

    It affects interstate commerce because the act of making it yourself means you didn't purchase it from out of state.

    Since not drinking has the same effect, there is no reason Congress cannot pass legislation requiring everyone to purchase quotas of Bud, California wine, or anything else for that matter.

  • Mr. FIFY||

    Ew. I'd rather drink Keystone than Bud.

    No, not really. Just making a point.

  • sarcasmic||

    I'd rather drink my homebrew.

    In the secondary I've got a session ale -
    10lbs pale, 4oz crystal, 1oz black patent; mashed at 155 for an hour; pre-boil volume 7 gallons; boiled with 2oz English Kent Golding for an hour, 1oz for 15 minutes; post-boil volume 6 gallons; Safale 04 yeast; racked after one week leaving one gallon of yeast an hops behind for a volume of 5 gallons; will be going into a keg this Saturday; should be carbonated by Christmas.

  • Mr. FIFY||

    I'm planning on getting back into the homebrewing hobby... unless some fucktard decides to re-illegalize it.

  • sarcasmic||

    There's no way homebrewing will be made illegal again unless they reinstate alcohol prohibition. And that ain't gonna happen until the federal government kicks its addiction to sin taxes (never).

  • Mr. FIFY||

    You can never tell. Politicians are a tricky bunch of sneaky bastards/ettes, and remember... it took Jimmy Carter signing a bill to make home brew/winemaking legal, which is one of the few good things that man has EVER done.

  • ||

    I pursued homebrewing as a hobby in the 1990s, and if my current dwelling had space to accommodate it, I would still be doing so now. Nothing beats proper homebrewed ale. To give you an idea of what "proper" is, let me tell you a little story:

    A week ago, I was cleaning out our refrigerator in the garage and stumbled upon the last remaining "library" bottle of brew from my mid-1990s hobby. I didn't want to throw it away, but was naturally afraid to open and taste it. Finally, curiosity won out. I popped the top and smiled at the hiss: The seal was intact. The brew was completely clear and still well-carbonated, with very tiny bubbles (but not much of a head). Aroma was a bit hoppy (as my brew-buddy and me liked it, back then) and the taste may have been just a touch on the stale side, but that would only be by the standards of homebrew lovers: it still seemed fresher than any mass-bottled beer and most commercial craft brews I could name. I realize that such a happy ending was largely the result of a lot of good luck during the years that this bottle sat in the back of my auxiliary refrigerator. But all the luck in the world wouldn't have allowed the brew to last this long if the quality hadn't been put into the bottle to start (something I will attribute to beginner's luck and the beginner's OCD-level attention to detail, especially cleanliness). YMMV, but I had a drink that night because my brew-buddy and I had done something right nearly two decades ago.

  • nekoxgirl||

    Because then you won't buy beer and wine from a company in another state, so it affects interstate commerce!

  • MNG||

    If everybody makes homebrew instead of buying Coors you don't think that would have some effect on interstate commerce or government schemes to regulate the same?

  • sarcasmic||

    Making ale at home is one thing. You can make a decent ale with an investment of a couple hundred bucks worth of equipment.
    The average person to trying to emulate a lager like Coors at home would have to sink at least a grand into equipment, not to mention the time and effort.
    Not gonna happen so it's not worth consideration.

  • Barely Suppressed Rage||

    Yes, if everyone made their own beer, it is quite likely that sales of commercially-produced beer would go down.

    And?

    Back to square one: the text of the document at issue authorizes Congress to regulate "commerce among the several states."

    Me brewing some beer in my basement does NOT constitute "commerce among the several states."

    Coors brewing beer and shipping it all over the country DOES constitute interstate commerce, and Congress is free to regulate that.

    If everyone brewed their own, would there be less interstate beer commerce for Congress to regulate? Yup.

    Does that mean that Congress then could pass a law requiring everyone to buy Coors beer instead?

    No.

  • ||

    +10

    Very well and succinctly put, BSR. The "+10" is for making the point effectively AND using homebrew to do it. Thank you.

  • DLM||

    If everybody makes homebrew instead of buying Coors you don't think that would have some effect on interstate commerce or government schemes to regulate the same?

    Congress is able to *regulate* interstate commerce. Before something can be regulated, it must first exist. Congress does not have the right to force commerce by individuals into existence where none existed before merely because they have the ability to regulate that commerce if it did exist (and I'm not saying they necessarily do).

  • Old Mexican||

    Re: MNG,

    Except that the power "to regulate" interstate commerce IS one of the enumerated powers (Art. I, Sec. 8).

    And so are the other enumerated powers that limit THAT enumerated power... Somehow you and other Statists seem to ignore.

  • Barely Suppressed Rage||

    Fucking YAWN. Get a new line, MNG. This one is worn out, threadbare and tired.

    Mandating that individuals purchase a product or service, regardless of whether they are participating in or engaging in any type of activity - i.e., simply by existing as an American citizen - cannot reasonably or logically be considered to constitute "commerce among the states," which is what Congress is empowered to regulate. Nor can it reasonably be considered "regulating" commerce. No, instead, it is "mandating" or "initiating" commerce - forcing people to go out and buy something, regardless of whether they want to, or need it. And this is not as a condition of engaging in some other regulated activity, such as driving a car or anything that could otherwise be considered engaging in commerce. It's required merely because you exist as an American citizen.

  • nekoxgirl||

    MNG: "Except that the power "to regulate" interstate commerce IS one of the enumerated powers (Art. I, Sec. 8)."

    And anyone that actually knows US history with any depth would be aware that the original intent of that clause was to keep states from putting up tariffs and such. Funny that it took about 150 years for the Supreme Court to decide what Philadelphia Convention REALLY meant when they put that in there. It was TOTALLY all about forcing farmers to not grow crops and individuals to buy health insurance.

  • DesigNate||

    By your logic everyone should be forced to buy a cell phone because it affects interstate commerce to NOT have one.

  • Ramsey||

    And apparently I can't grow my own fucking wheat to make my own bread...

    One of the enumerated powers that has been expanded far outside of any rational scope

  • MNG||

    I think the expansion is a political issue. I think the power granted is broad enough to allow it, but that doesn't mean that politically our reps should do things like this. There is a proper outrage at the mandate from both the left and right, it won't last. Not everything is a constitutional crisis.

  • Jeffersonian||

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

    - James Madison, Federalist 45

  • MNG||

    And anti-federalists at the time, correctly, ascertained that as written the US Constitution allows for far more than that...It's useless to hunt down quotes by people at the time as to what the Constitution "meant." Best to stick to the actual text and it's meaning at the time.

  • Jeffersonian||

    The anti-federalists lost the argument and the Constitution was ratified with Madison's understanding of its limited powers. With a few exceptions, that understanding continued until the Wilson Administration, who had nothing but contempt for the Constitution and Declaration. Now that contempt has been mutated into the Constitution itself.

  • sarcasmic||

    Wilson? Don't you mean Lincoln?

  • Jeffersonian||

    Lincoln had his problems, but at least he claimed his powers as special ones to be exercised in wartime only. It seems that today's Democrats are, by extension, at war with the American people.

  • MNG||

    "The anti-federalists lost the argument and the Constitution was ratified with Madison's understanding of its limited powers."

    My God, how in the world would you prove that? Hundreds of people ratified the Constitution, you can prove that they did so with Madison's understandings? Heck, it would be impossible to prove that Madison's stated understandings were his private ones!

  • Jeffersonian||

    Madison and the rest of the federalists were the ones doing the persuading to ratify the new Consitution. They are the ones who specifically defined what the limits of federal power would be under the document. Why wouldn't that be the understanding?

    I'm stunned that you're making the assertion that Madison, Jay, Hamilton, et alia lied openly to us and that we are somehow bound to a document sold to us under false pretenses. Would you excuse a realtor that sold you a condo in the same fashion?

  • ||

    "The powers delegated by the proposed Constitution to the Federal Government, are few and defined. Those which are to remain in the State Governments are numerous and indefinite"

    This quote from Madison was included in the majority opinion written by Chief Justice Rehnquist. It might be useless to hunt down quotes as to the meaning of the constitution, however is it obvious that this particular quote represents a view that the modern court agrees with

  • ||

    Included in United States vs. Lopez. Probably would have helped if I included that the first time

  • Jeffersonian||

    Some do, to be sure (Thomas, most notably). I'd wager that most do not, at least not to the extent of original intent.

  • Barely Suppressed Rage||

    It's useless to hunt down quotes by people at the time as to what the Constitution "meant." Best to stick to the actual text and it's meaning at the time.

    Holy crap - those two statements together make no fucking sense. How do we determine "it's [sic] meaning at the time" other than by "hunt[ing] down quotes by people at the time as to what the Constitution meant"?

    I mean, it's only what the federal courts, including the SCOTUS, have been doing for the past 200+ years in interpreting the Constitution - you know, looking at the contemporary writings of a bunch of dead, rich, white slaveholders. And the slightly later writing of other dead lawyers, like St. George Tucker, whose American version of Blackstone's Commentaries has long been viewed as a relatively authoritative statement of the general understanding of the law at the time.

    Everything you've said on this issue thus far plainly illustrates you have not the slightest fucking clue what you're talking about and just making shit up as you go, because you're trying to defend the indefensible.

  • MNG||

    Of course you can look to historical documents of the time, such as newspapers, dictionaries, books, etc., and see the common meaning of words then. My opposition is that the stated expectations and intentions of a handful of ratifiers cannot decide the issue. Everything Scalia has said about the futility of deciding meaning based on legislative intent applies here as well.

  • Barely Suppressed Rage||

    "On every question of construction carry ourselves back to the time when the Constitution was adopted, recollect the spirit manifested in the debates and instead of trying what meaning may be squeezed out of the text or invented against it, conform to the probable one in which it was passed." - Thomas Jefferson, Letter to William Johnson, June 12, 1823

  • Barely Suppressed Rage||

    Another boring old document from some dead rich slaveholder. What the fuck did he know - he wasn't even in the country when they wrote the Constitution.

  • ||

    MNG, it sounds like you're saying that spirit of the law doesn't matter. The law really means what ever we can twist the words into meaning.

  • ||

    "Everything you've said on this issue thus far plainly illustrates you have not the slightest fucking clue what you're talking about and just making shit up as you go, because you're trying to defend the indefensible."

    Or stir the eminently stirrable pot and bait the easily baitable. There's that. But regardless, as Michael Palin's character said, "I came here for a good argument."

  • Rich||

    Kagan's stubborn resistance to answering Coburn's question suggested it was not as wacky as it may have seemed.

    It set a precedent for the Fifth Amendment "refusal" being construed as an actual answer. Commerce Clause, don't ya know.

  • Barack Obama||

    the failure to buy medical coverage can be treated as a federal offense because that failure, aggregated across millions of people, has a substantial effect on the interstate market in health care. But the same thing can be said of the failure to exercise, the failure to get enough sleep, ....

    Let me be clear.

    You are exactly correct. Moreover, since failure to support the policies of my administration can be treated as a federal offense because that failure, aggregated across millions of people, has a substantial effect on interstate markets.

  • Robert Gibbs||

    Unfortunately, the President misspoke.

    He meant to say: Moreover, failure to support the policies of my administration can be treated as a federal offense because that failure, aggregated across millions of people, has a substantial effect on interstate markets.

    I might add: Nota bene.

  • robc||

    This is one of those Atlas Shrugged type moments. People (I used to think rightly) criticize AS for having cardboard cutout bad guys, that they dont exist in real life. The last 10 years says otherwise.

    Mr. Obama...err...Thompson yelling at Galt to "do something!". Yeah, that would never happen in real life.

  • robc||

    BTW, the moment that clued me in that this criticism of Atlas Shrugged was wrong (some of the other criticisms still stand) was the rolling blackouts in California - and them being blamed on "deregulation". It seemed too much like the copper wire bit from the book.

  • Jeffersonian||

    To which the proper response is, "Get the hell out of my way."

  • Jeffersonian||

    During Supreme Court Justice Elena Kagan's confirmation hearings last summer, Sen. Tom Coburn asked her whether a law requiring Americans to eat their fruits and vegetables could be justified as an exercise of the federal government's constitutional authority to "regulate commerce…among the several states." Kagan's stubborn resistance to answering Coburn's question suggested it was not as wacky as it may have seemed.

    Wacky? Is it not the whole premise of Michelle Obama's childhood obesity push?

  • Michelle Obama||

    childhood obesity push

    Nice band name.

  • Tim||

    childhood obesity putsch

  • ||

    Vell, vat do you expecht from beink in beer halls???

  • murder_city||

    ein volk, ein gott, ein obama!

  • ||

    The whole concept of limited government has no meaning if clauses are twisted to allow virtually any government action.

    The Commerce Clause, incidentally, was intended to ensure that states didn't restrict the flow of trade across the country.

  • sarcasmic||

    The whole concept of limited government has no meaning if clauses are twisted to allow virtually any government action.

    Isn't that the purpose of constitutional lawyers? The legislators write laws and constitutional lawyers find clever ways to interpret the plain language of the constitution to mean something completely different.
    For example "Congress shall make no law" has been interpreted to mean "Under certain undefined circumstances Congress shall make laws", and "shall not be infringed" has been interpreted to mean "shall be severely limited and regulated".

    Oh, did I mention our president is a constitutional lawyer?

  • ||

    The purpose of constitutional lawyers is to make scandalous amounts of money proposing and enacting scandalous laws that they can then argue about in scandalous courts in scandalous lawsuits.

  • Matrix||

    Scandalously delicious!

  • ||

    There are few Patriots more worthy of a poster than Mr Dr Sen Coburn. God will bless him one day.

  • Matrix||

    He has few blemishes on his voting record. But the biggest is his support of TARP.

  • Bambi's Revenge||

    As the renown witch O'Don El once said, "warts are not a blemish, rather they be a feature."

  • creech||

    I guess we need a movement to amend the Constitution to explicitly state that the commerce clause is intended solely to address issues where one state bans, restricts or impedes commerce with another state or country.

  • Jeffersonian||

    Indeed, the meaning of "regulate" at the time of ratification was "to make regular," ie, to prevent protectionism between the states.

  • sarcasmic||

    When progressives find a sentence in the constitution that they don't like they change the meaning of a word so the sentence becomes something more to their liking.

  • Jeffersonian||

    Has the latest Newspeak dictionary been published yet?

  • sarcasmic||

    It's called Political Correctness.

  • MNG||

    I've made this challenge before: can you prove that the word "regulate" did not refer to "making rules about" at that time? In fact it was used that way (not to say it was not used in the fashion you mention as well). By your logic the "commerce" part could be incredibly expansive because the word "commerce" back then often referred to any social mixing...

  • sarcasmic||

    I can challenge you to prove a negative as well: prove to me that you do not masturbate with baby oil under a full moon in the woods once a year, usually in August.

  • Barely Suppressed Rage||

    More circular arguing from MNG. Sure, regulate can mean "make rules about." And the Constitution authorizes Congress to regulate - i.e, "make rules about" - commerce AMONG THE SEVERAL STATES. Not "individual activity (or lack thereof), which, if allowed to occur, in the aggregate might have some effect on interstate commerce".

    The question is not whether Congress can "regulate" - the question is WHAT Congress can regulate. Answer: commerce among the states - not force you and me to buy something we might not want, merely as a condition of being a U.S. citizen.

  • ||

    And let's not get started on "intercourse."

  • ||

    I read quickly, so I may have missed:

    Under your approach to the Commerce Clause, MNG, is there any economic decision not specifically protected by an amendment to the Constitution that would not be subject to federal control?

    To defend your answer, I think you will need to show that the decision, taken in the aggregate, would have no effect on interstate commerce.

  • Jeffersonian||

    He may have some personal objections to certain acts that would be compelled or forbidden, but that's just majoritarian electoral politics.

    "Liberals" have created their own Frankenstein's monster, fatuous in the belief that they can control it. History and common sense tell us otherwise.

  • nekoxgirl||

    It's a complete ignorance of the importance of constitutional part of constitutional democracy. A constitution is the only way to prevent a democracy (or any form of government) from turning totalitarian.

    The United States isn't the "free world" because "we got teh vote!!!" We are free because the constitution protects our rights. Our freedom is not suppose to be something left to the whims of our leaders. No matter who is in charge, your rights are something the government can't touch.

    Modern day liberals have decided it is better to let the electorate decide through voting what rights they should or shouldn't have. If the presidency of George W. Bush couldn't convince them of the folly of the system of government they have created, nothing will.

  • MNG||

    Yeah, it's just liberals who want judicial restraint...Whatever. Every group wants an activist court for some things, democracy for others. This kind of talk gets us nowhere.

  • Mr. FIFY||

    Wait, wait... if one breathes, they're recycling air that came from across state lines. So, "just standing there" won't cut it.

    We have to die in order to escape the liberal interpretation of the Commerce Clause, Praise Be Upon It.

  • NeonCat||

    Not to mention when one exhales, one releases greenhouse gases. Why aren't we required to buy carbon credits for our indiscriminate breathing?

  • Chad||

    I like where this is headed!

  • Barely Suppressed Rage||

    MNG:

    I've seen three specific and very good questions, all related, that you thus far have dodged completely:

    1. "tell me what you think the commerce clause prohibits"

    2. "by your definition, what activities are commerce (economic), but not interstate?"

    3. "is there any economic decision not specifically protected by an amendment to the Constitution that would not be subject to federal control?"

    If Congress can mandate every person in the U.S. must purchase health insurance, merely as a condition of being a United States citizen subject to the federal government's power, then what can't it require?

    Set aside whether it's a silly law or not - that's not the point, nor is it the question. The question at the core of the litigation is not whether it's a silly law; the question is whether it is a valid exercise of Congress's power under the Commerce Clause. And if it IS, then what would NOT be?

    The clear answer is NOTHING would not be. If Congress can do this, then it can make you do anything, in the name of "regulating interstate commerce."

    Why couldn't Congress require everyone to purchase a lawnmower? Your "decision", as you put it, not to buy one, taken in the aggregate with everyone else's "decision" to buy or not to buy one, can "affect" interstate commerce, because lawnmower manufacturers sell their prouducts across the country. So if you "decide" not to buy a lawnmower, why do you hate America so much?

  • MNG||

    I dodged them? I thought I answered them. Here we go again:

    I agree with the Lopez and Morrison decisions. Any directly economic activity that, taken in the aggregate has a significant effect on interstate commerce is fair game. So taking a gun onto school grounds or committing an act of sexual violence are not covered because they are not directly economic decisions (though they, like everything, can have indirect economic effects).

    I can reverse this type of question you know. What do you think the grant of power allows, what are its limits? Any other reading of the clause is going to have goofy implications (either unrealistically formalistic distinctions between "manufacture" and "commerce" or rendering the power ineffective).

  • Barely Suppressed Rage||

    Define "economic activity".

    How is my or your existence as a U.S. citizen an "economic activity"?

    You argued above that the decision to buy or not to buy insurance is an economic one, and can affect interstate commerce and so fair game. What about the decision to not buy a gallon of milk? If everyone made that decision, it would affect interstate commerce. So can Congress mandate that I buy a gallon of milk each week?

  • Edwin||

    You still didn't answer his questions specifically. And if they can regulate ANY activity that can in aggregate AFFECT interstate commerce, then what CAN'T they regulate? The answer would be nothing. Anything can be said to effect interstate commerce in aggregate. Something that can mean anything means nothing. Your interpretation is wrong even by SCOTUS' broad interpretation. As others have pointed out, in the cited case law, people were still actually DOING something. If not doing anything is considered commerce then congress can regulate literally ANYTHING AT ALL. It's complete NONSENSE.

  • Tony||

    It's just like libertarians to think they can breathe with impunity.

  • shrike||

    Christ-fag Limbaughites think the same way, Tony.

  • Chad||

    We need to outlaw religion and get Fatboy off the air. Freedom of religion and speech demand it.

  • PMG||

    "To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;"

    This is the clause of the US Constitution which the Federal Government uses to justify just about everything it does in respect to the economy; saying it gives them the authority to make laws about everything that affects commerce among the states. Such laws include gun laws, EPA restrictions, and agriculture laws; just to name a few. They contend this clause gives them the power to regulate even things which stay within a certain state if anything used for that product comes from out of state (i.e. a screw or paint).

    However, by that logic, then the Federal Government would have the power to extend these types of laws to foreign Nations. Seeing as they do not have that power and never did or will, how can different logic be applied to a another clause of the same sentence?

  • MNG||

    Your logic breaks down itself. Even under the conservative interpretations of the clause the feds have the power, say, to tell states they cannot set up tariffs to goods from other states. Well, they can't do that to other nations so....

    According to your logic if I tell my kids "You can't have cookies or beer in this house" the first part only bars cookies that are illegal for kids to have because beer is.

  • sarcasmic||

    "Well, they can't do that to other nations so...."

    So.... nothing.

    It doesn't say "among foreign Nations", it says "with foreign Nations".

    Last I checked "among" does not mean the same thing as "with".

  • Emperor wears no clothes||

    In Canada, a Western Canadian wheat farmer is not allowed to mill his own wheat into flour for bread. By law, he is required to sell his wheat to the Canadian Wheat Board, and then buy wheat from the same organization if he wants some for personal use.
    Several provinces have health care "premiums" that must be paid by every resident, even though health care is supposedly "universal" and "free" and already supposed to be paid for by income taxes.
    You can't (legally) drive without car insurance.

    /when it comes to government interference in its citizens' lives, you guys are barely getting started compared to Canuckistan.

  • DesigNate||

    +1 for Canuckistan. That made me lol.

  • ||

    I agree with the Lopez and Morrison decisions. Any directly economic activity that, taken in the aggregate has a significant effect on interstate commerce is fair game.

    IOW, the federal government has plenary authority to regulate the economic lives of all residents of the US.

    The purported limit of "has a significant effect on interstate commerce" is, of course, illusory. As we have seen, being self-sufficient in a given item (such as growing your own food) "has a significant effect blah blah".

    So, to MNG, the federal government has complete authority to order the economic activity of the United States. There is not one single economic activity or decision that is in any way related to the economy that is beyond its reach, unless a provision of the Bill of Rights specifically protects it.

    I cannot think of a single decision or activity to purchase, or not to purchase, a good or service, that would be beyond this power.

    And apparently, this is exactly what the Founders intended.

  • Beemer||

    The Commerce Clause in a nutshell? -- The feds can do whatever they damn well please.

  • Pete Stark||

    I agree and wholeheartedly endorse this statement.

  • ||

    Except partial birth abortion often crosses the line of murder of a potentially viable fetus (~24 weeks). That kind of goes against the natural right to life we're all guaranteed. If you can't make up your mind before you the pregnancy half way point, you shouldn't be having sex. The US Congress does have some say in protecting our rights.

  • ||

    "The question comes to this, whether a power, exclusively for the regulation of commerce, is a power for the regulation of manufactures? The statement of such a question would seem to involve its own answer. Can a power, granted for one purpose, be transferred to another? If it can, where is the limitation in the constitution? Are not commerce and manufactures as distinct, as commerce and agriculture? If they are, how can a power to regulate one arise from a power to regulate the other?

    It is true, that commerce and manufactures are, or may be, intimately connected with each other. A regulation of one may injuriously or beneficially affect the other. But that is not the point in controversy. It is, whether congress has a right to regulate that, which is not committed to it, under a power, which is committed to it, simply because there is, or may be an intimate connexion between the powers…

    If this were admitted, the enumeration of the powers of congress would be wholly unnecessary and nugatory. Agriculture, colonies, capital, machinery, the ages of labour, the profits of stock, the rents of land, the punctual performance of contracts, and the diffusion of knowledge would all be within the scope of the power; for all of them bear an intimate relation to commerce. The result would be, that the powers of congress would embrace the widest extent of legislative functions, to the utter demolition of all constitutional boundaries between the state and national governments."

    -- Joseph Story

  • ||

    Except partial birth abortion often crosses the line of murder of a potentially viable fetus (~24 weeks).

    And what provision of the Constitution gives Congress the authority to pass laws against murder?

    Under the original plan for governing the US, that was a power reserved to the States.

  • RyanXXX||

    "But the same thing can be said of the failure to exercise...or eat a proper diet."

    Don't give Michelle any ideas!!!

  • ||

    Um, don't get too excited yet.
    Conservatives Ecstatic Over Health Care Ruling Legal Experts Say Is Wrong

    I normally wouldn't dare link to MMFA but this article is primarily an aggregation of information and sourced quotes. Mostly presented in context.
    They may be left, but that's still better than most websites.

    Too Long, Didn't Read:
    1) This is actually the third ruling on Obamacare. The first two upheld it.
    2) The legal reasoning about the Necessary And Proper clause is specious. [I went to law school and tend to agree. But most of the time--like now--I don't research further since it's a waste of time: the gov't does what they want regardless of what legal scholars conclude. Sometimes they even ignore judicial precedent.]
    3) The judge has financial ties to the firm that brought the case before him
    4) I guess the judge felt that the commerce clause could be used to shut down porn during the Reagan years, or something [Frankly, MMFA should have put porn in the headline to get readers, even though their citation is of questionable relevance. Who doesn't love porn?]

    Periodically I feel obligated to point out that this is judicial activism. Conservatives don't seem to understand that, although they love (hate) the term.

  • Edwin||

    MNG, being one of the less-doctrinaire libertarians, you're usually less retarded than the fucking libertarian nerds on this site. But this shit you're pushing about the commerce clause is weaksauce.

  • Edwin||

    MNG, being one of the less-doctrinaire libertarians, you're usually less retarded than the fucking libertarian nerds on this site. But this shit you're pushing about the commerce clause is weaksauce.

  • Edwin||

    MNG, being one of the less-doctrinaire libertarians, you're usually less retarded than the fucking libertarian nerds on this site. But this shit you're pushing about the commerce clause is weaksauce.

  • Edwin||

    If I call libertarians "fucking retarded nerds", they'll appreciate me! My plan WILL work, dammit!

  • sevo||

    Edwin|12.15.10 @ 4:59PM|#
    MNG, being one of the less-doctrinaire libertarians, you're usually less retarded than the fucking libertarian nerds..."
    Edwin, as one of the most brain-dead ignoramuses ever to post here, I'm betting you think that's an endorsement.

  • DDavis||

    Unfortunately, per Supreme Court precedents, the Government can regulate anything under the interstate commerce clause.

    Clarence Thomas on Gonzalez v Raich:
    ###
    If the Federal Government can regulate growing a half-dozen cannabis plants for personal consumption (not because it is interstate commerce, but because it is inextricably bound up with interstate commerce), then Congress' Article I powers -- as expanded by the Necessary and Proper Clause -- have no meaningful limits.
    ...
    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.
    ###

    Like Thomas, I see no limit to what can be regulated under the decision.

    The choice to not engage in interstate commerce was seen as a choice effecting net interstate commerce, and therefore subject to regulation.

    So you are subject to regulation if you do one of two things: fail to engage in interstate commerce; engage in interstate commerce.

    If (A or NOT A), you are subject to regulation. The astute reader will note that (A or NOT A) can be simplified.

  • Roarke||

    If the big bad gov't can't make you buy insurance doesn't that mean it can't make the hospitals treat the sick who come in without insurance? That would solve the- why the hell should I have to pay for you to get treated when you can't take the trouble to get insurance for yourself-problem. Heck, maybe I'll just drop my incredibly expensive health insurance policy for myself and my family and go to the emergency room everytime I have the sniffles. That way you'all can pay for it. I could use that extra 900 for other things. Think about it.

  • DLM||

    If the big bad gov't can't make you buy insurance doesn't that mean it can't make the hospitals treat the sick who come in without insurance?

    Are you talking Federal or State government. It makes a difference.

  • ||

    If everyone, or a large percentage of us, decided not to work, that would have substantial economic impact. Therefor the government can force you to work. Therefor you are a government slave.

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  • air yeezy||

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  • wubai||

    How about mbt kisumu sandals this one: there are X driving deaths a year- what % of driving deaths (or serious injuries) involve alcohol, or other intoxicating substances? kisumu 2 People are pretty darn good drivers when they are not impaired.

  • jiusuan||

    good

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