The Right Kind of Activism

Does the federal court system exist to rubber stamp legislation?

For discussion's sake, let's just concede that every four years or so the American public is fooled into voting for a demagogue who's mastered a pleasant-sounding, market-tested populism. Let's then imagine—this is for discussion only—that this person's resulting agenda, cheery but mildly authoritarian, passes with public support.

Does the federal court system exist to rubber stamp legislation? Should they check in and see if it's cool with the public? Or do we have courts to decide the constitutionality of laws? Do we insulate judges from democracy for a reason? Do we have a Constitution to keep a check on government or to bend to the constant predilections of the electorate?

The White House's position is clear. When U.S. District Judge Roger Vinson ruled this week that Obamacare was unconstitutional—due to its individual mandate—the White House's first reaction was to call the ruling "out of the mainstream," as if it were remotely true or that it even mattered.

The decision, you may not be surprised to hear, is also a case of "judicial activism" and an "overreach."

Co-opting conservative terms like "judicial activism" is a cute way of trying to turn the tables on those who have some reverence for the original intent of the Founders.

The true activist invents new ways to expand power and set precedents allowing his or her ideological views to be embedded in the "Constitution" forever. An activist searches for ways to rationalize intrusions, not to limit them—unless the breach involves terrorism suspects and the guy holed up in the White House is a Bush.

Vinson may be overruled, but his decision is cogent and persuasive and doesn't seek out excuses for abuse. His ruling asks for the kind of government restraint that judges rarely have the appetite to call for, even though, need I remind you, "judicial activism" in the defense of liberty is no vice.

Now, it also takes impressive chutzpah for the White House to call Vinson's decision "overreaching," when we're in the middle of discussing a piece of legislation that, for the first time in history, coerces American citizens to buy a product in a private market by defining economic inactivity as activity.

"If Congress can penalize a passive individual for failing to engage in commerce, the enumeration of powers in the Constitution would have been in vain" for it would be "difficult to perceive any limitation on federal power" ... and we would have a Constitution in name only," wrote Vinson. But alas, we're almost home—and that's the goal.

Once our interconnected economic existence is grounds enough for impelling us to be good citizens, we're gonna fix the despicable unfairness of this cruel, selfish system, but good.

Pathos, after all, is the most effective tool for passing liberal social policy, so it's not surprising that the president is a fan of empathy-based jurisprudence. This portion of the discussion shouldn't focus on supposed benefits or failures of reform but how we get there. Yet, today's liberals can't stop making a consequentialist argument (I heard that once on PBS) that refuses to separate what's "right" and how we get to what's right.

That mindset is why Nancy Pelosi and other legislators instinctively laughed off any constitutional question about the legislation. It rarely matters. Then again, with 26 state attorneys general and two federal judges weighing in, maybe it does now.

Historically speaking, though, the chances of stopping the individual mandate are not good—as courts have generally deferred to wishes of the legislative branch. Nevertheless, this week was a pretty good one for those who do care about the Constitution's fading relevance.

David Harsanyi is a columnist at The Denver Post and the author of Nanny State. Visit his website at www.DavidHarsanyi.com.

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  • Rick Romero||

    Partisan hacks are hypocrites who will often change their position on issues depending on what side of the issue their favored politician is on. More at 11:00.

  • ||

    ""More at 11:00.'""

    It's a rerun.

  • Wind Rider||

    Ends justify the means progressives find the "say anything" approach appealing, and tend to squirm energetically when their own utterances are repeated back at them. Because, screw that whole goose and gander concept, which is ok since they've convinced themselves they're the only ones smart enough to torture the language like that.

  • yonemoto||

    Simple: Judicial activism is fine when it restricts the power of government beyond what the constitution specifies (i.e. making the first amendment apply to anything beyond "congress") - it's not fine when it expands the power of government.

  • Tim||

    It wasn't activism.

  • ||

    That's right. Holding government to its limits is hardly activism. Expanding it is.

  • Cyto||

    I'll go further. Activism is not just upholding some law - it is creating a new implementation of a policy in the courts. Striking down a power (law) of the government isn't activist. Court ordered busing absent a specific law authorizing such solutions is activist. Ordering chemical castration is activist. Redrawing voting districts is activist.

    Saying that the constitution doesn't allow the government to exercise a given power is not activist.

    Failing to strike down a law that violates the constitution is not activist in and of itself, but it is incompetent and dangerous to the republic.

  • John Marshall||

    "Failing to strike down a law that violates the constitution is not activist in and of itself, but it is incompetent and dangerous to the republic."

    I'm so glad you see it my way, but the "incompetent and dangerous" remark was a little harsh.

    Like I was supposed to predict that future justices would emulate me and pull whether or not a law is Constitutional out of his or her ass at will. No, never. The thought never crossed my mind.

  • ||

    Because your mind was too little for any thought to cross it. And just why do you hate your cousin TJ so much?

  • ||

    Perhaps it's more appropriate to have posted this here rather than in the morning links:

    Here's a Gawker post on the recent Obamacare decision, with a bonus shout out to Reason (or is it a Bronx cheer?)!

    Linky!

  • Vermont Gun Owner||

    Whether you think it's enough to protect the law under the Commerce Clause or not, uninsured people do have an effect on interstate commerce. If there's a large population of uninsured folks in one place who get unpaid treatment in emergency rooms, then everybody else — taxpayers or policy holders elsewhere — pay more

    They are conflating not buying insurance with going to an ER for free, two different events. See how easy this is: Unwhite people have an effect on interstate commerce, because if there is a large population of unwhite folks in one place who buy [insert any product or service here], then everybody else-taxpayers or others seeking that product elsewhere-pay more. Let's pass a mandate that you either be white or pay a fine.

    Although honestly, I can't decide which is more idiotic, the post or the comments.

  • Michael Ejercito||

    They are conflating not buying insurance with going to an ER for free, two different events. See how easy this is: Unwhite people have an effect on interstate commerce, because if there is a large population of unwhite folks in one place who buy [insert any product or service here], then everybody else-taxpayers or others seeking that product elsewhere-pay more. Let's pass a mandate that you either be white or pay a fine.


    Very good point.

  • Red Rocks Rockin||

    It's Gawker, idiocy and chimpouts are a given.

  • Mensan||

    Reading the comments on that article made my brain hurt. I felt like I was drowning in a tsunami of stupid.

  • Clouds||

    Car Insurance 11!!!!1

  • ||

    Why limit the stupid to the comments? The article itself was full of idiocy:

    So when you defend it under the Commerce Clause before a judge like Roger Vinson who doesn't see the natural difference between health care — something that all humans will have to pay heavy costs for during their lifetimes — and every other form of "commerce," like the luxury product tea, then you're likely to get a hyperventilating ruling that claims there's no limit to what the federal government can do in any industry now.

    I'm pretty sure healthcare is a luxury as well. One side of PPACA lovers say healthcare is a right, therefore we should have it. The others side of PPACA lovers say healthcare is a good (i.e. commerce) therefore Congress has the ability to provide it.

  • Mensan||

    Yeah, that was incredible stupid too. It's just that by the time I got through the comments my brain had reached it's stupidity overflow valve.

    And, of course, they are once again conflating care and insurance as if they were the same thing.

  • Old Mexican||

    For discussion's sake, let's just concede that every four years or so the American public is fooled into voting for a demagogue who's mastered a pleasant-sounding, market-tested populism.


    I concede! I concede!

    Do we have a Constitution to keep a check on government or to bend to the constant predilections of the electorate?


    Neither - the Constitution is there to give the government a veneer of legitimacy. That's all.

  • ||

    That's more true today than it once was.

  • Draco||

    Ah, so you're a Rothbardian Old Mexican? He also stated that the Supreme Court was nothing but a High Priesthood (complete with robes) to reconcile the ways of the government to the populace.

  • John Marshall||

    See my response to Cyto above.

  • John Marshall||

    See my response to Cyto above.

  • Old Mexican||

    Re: Draco,

    Ah, so you're a Rothbardian Old Mexican?


    Yes, sir!

  • ||

    When U.S. District Judge Roger Vinson ruled this week that ObamaCare was unconstitutional, the White House's response was to call the ruling a case of "judicial activism" and an "overreach."

    Their reaction was considerably more than that. They stated that they would ignore the judge's decision (which, by its terms, constitutes an order to cease and desist implementation), and would continue with implementation of the law.

    Unless and until the District Court order is stayed, we have a bona fide Constitutional crisis on our hands, with the Executive taking the public and explicit position that the Judicial branch may not enforce court decisions against it.

    I am very surprised that this is not getting more attention.

  • Neu Mejican||

    Vinson declined to block the law during the appeal phase. I do believe you are distorting the facts here considerably. I could be wrong...

  • Neu Mejican||

    To clarify...Vinson did not issue an injunction. He did, however, state that he felt one was not needed since it would be impossible for federal officials to enforce an unconstitutional law. Without the explicit injunction, it seems that implementation would continue until the appeal process has finished. The White House has hardly gone beyond bounds here, as far as I can tell.

    At the very least, until there is clarification of the injunction question, I think characterizing this as a constitutional crisis is a bit hyperbolic.

  • MNG||

    Don't administrations often keep going on something during the appeals process? I mean, a slew of district judges ruled parts of Bush's WOT measures were unconstitutional and they eventually got rebuked by the appellate courts, did he suspend those measures during that process?

  • Draco||

    But, but... The Obama Administration was all about Hope and Change! It was about a rebuke to the "Imperial Presidency" of George W. Bush!

    So surely, regardless of what was done in the past, Obama will respect the Constitution? Right?

  • Democrats||

    It's okay when WE do it.

  • Michael Ejercito||

    I mean, a slew of district judges ruled parts of Bush's WOT measures were unconstitutional and they eventually got rebuked by the appellate courts, did he suspend those measures during that process?


    He did not.

    Any injunctions issued pursuant to those rulings were stayed.

  • ||

    Actually, I don't think that's right. Without a stay, a finding that a law is unconstitutional makes it pretty hard for the government to proceed as if the opinion never happened. It is a binding decision until appealed and stayed.

  • Brett L||

    So a judge stating that he doesn't believe an injunction need be issued because the law was unconstitutional isn't clear and explicit?

  • Cyto||

    He didn't issue an injunction, but he did specifically state that the ruling is binding on the government in the same way that an injunction is.

  • ||

    They won't really do anything until the stay is granted. Otherwise, Obama would be walking right into a legitimate case for impeachment.

  • smartass sob||

    Why would he worry about impeachment? There are a majority of Democrats in the Senate - no way would they vote to remove him.

  • ||

    It looks bad on a résumé.

  • Bill Clinton||

    Yeah, it's really put a crimp in my style!

  • Jen||

    And why should he care about his resume? He barely had one before he got elected President and, once he's out of office, he'll probably make his living as a motivational speaker.

  • The American Public||

    "FREE HEALTHCARE!!! IT'S A HUMAN RIGHT!!!"

    Ok, now that that's over with, let's get to more important things, like TV and Facebook.

  • Draco||

    But - and this is very important - the American public, overwhelmingly, doesn't want PPACA. so your cynicism is not entirely well founded in this case.

  • The American Public||

    Not PPACA, but we do want our children to stay children until 26, we want pre-exist discrimination done away, and we want others to pay for it. But, your right, not with the PPACA.

    Oh, look, I just my Medicare notice!

  • Michael Ejercito||

    we want pre-exist discrimination done away, and we want others to pay for it.


    We should be able to buy a house that had burned down and get Allstate to cover the cost of reconstruction.

  • DesigNate||

    I think they (insurance companies) should cover people with pre-existing conditions. But that doesn't mean I shouldn't pay more for it.

  • Michael Ejercito||

    I think they (insurance companies) should cover people with pre-existing conditions. But that doesn't mean I shouldn't pay more for it.


    Apply this to auto insurance.

    Should they be required to cover a person with several pre-existing drunk driving convictions?

  • Fiscal Meth||

    We don't want no socialism in our health care! We just want good old fashioned medicare and medicare and free ER walk-ins for everyone and someone should stop those insurance companies from doing all that pre-existing condition stuff and it should be mandatory that employers provide health care for all workers and yes the workers of the world should unite for health care and yes health care should be distributed from each according to his ability to each according to his need because this is 'merica damn it and we hate socialism and we don't want no socialism in our health care. Plus romney-care is not socialism either.

  • Fiscal Meth||

    Also this http://www.thenewamerican.com/.....rprise-you is how many Americans think that a certain famous communist slogan comes from our founding documents

  • Barely Suppressed Rage||

    I was under the impression that the judge had not issued an injunction against implementation of the law; he just ruled it unconstitutional. Which strikes me as odd - if he said it's unconstitutional, why would he not enjoin its enforcement or implementation?

  • Barely Suppressed Rage||

    Of course, I haven't yet actually read the opinion, so there's that.

  • mgd||

    ...there is a long-standing presumption “that officials of the Executive Branch will adhere to the law as declared by the court. As a result, the declaratory judgment is the functional equivalent of an injunction.”... There is no reason to conclude that this presumption should not apply here. Thus, the award of declaratory relief is adequate and separate injunctive relief is not necessary.

    Vinson's declaratory judgment that the law is unconstitutional, and the presumption that officials of the executive branch would act accordingly, rendered an injunction unnecessary.

    Here's a copy of the opinion:
    http://www.politico.com/static/PPM153_vin.html

  • ||

    There is only one question: Can the gubermint make you eat brocoli???

    (for the children, cause if you don't eat brocoli, you will die prematurely, and somebody has to pay for your kids, and that means commerce clause!!!)

    (Eastwood voice) Well, can they punk (Kagan)?

  • ||

    That depends on the influence of the broccoli lobby.

  • Barely Suppressed Rage||

    They didn't exert much influence over George H. W. Bush. Or am I the only one who remembers that whole flap?

    And I still don't get why poor broccoli is always used as the "nasty vegetable." Even my kids will eat broccoli.

  • ||

    My kids, too.

  • Llama Face||

    Because broccoli is universally recognized as gross, so it's easy to demonize and scapegoat. It's like the illegal alien of vegetables.

  • fish||

    And this is how I will refer to it from this point forward.

    Thanks!

  • mr simple||

    Because most people over cook it and turn it into a mushy mess.

  • Ska||

    Brussels sprouts are the real villain here.

  • Jen||

    ^This^

  • Clouds||

    Racist!!! or something

    Brussels sprouts are good shit when cooked right.

  • ||

    Good shit is still shit.

  • Barely Supressed Rage||

    I love brussels sprouts. When cooked right (not all mushy, but not too hard), butter and salt is all they need.

    And my older daughter even likes them too.

  • mgd||

    If you roast them with olive oil and garlic, they are not too bad. Then again, that's only to the extent that the oil and garlic cover their inherently vile taste.

    You'd really do better just roasting the garlic and leaving the sprouts out of it altogether, come to think of it.

  • Mensan||

    "John Marshall [Roger Vinson] has made his decision; now let him enforce it"

    - Andrew Jackson [Barack Obama]

  • sevo||

    "Here's a Gawker post on the recent Obamacare decision, with a bonus shout out to Reason (or is it a Bronx cheer?)!"

    Cheap shots from the left; NWS.

  • Max||

    It was never the intention of the founders that a cunt like Michelle Bachmann sit in the halls of Congress. Lets' have some reverence for the original intent of the blessed founders.

  • Old Mexican||

    Re: Max,

    It was never the intention of the founders that a cunt like Michelle Bachmann sit in the halls of Congress.


    Because if that were their intentions, it would mean they could foresee the future.

    By the way, don't do your banalities on the carpet! I just had it steamed! Bad Max, bad!

  • Hillary Clinton||

    Right. The founders intended to only have cunts like me in government!

  • fish||

    Yeah and if they had seen your drivel in print they might have had some reservations about freedom of speech.

  • Mr. FIFY||

    Who knew Max had a misogynist streak?

  • Max's Mother||

    Oh, the things I could tell you.

  • Mr. FIFY||

    I always figured Max was the sub, and his mom wielded the riding crop and the strap-on...

    Eww. Gotta bleach my mind out now.

  • ||

    Well...if you had been a better mother.

  • Llama Face||

    It was never the intention of the Founders that we have universal suffrage, either, or that woman and blacks be anything but property....

  • Brett L||

    Eh. To be fair women were wards like the mentally incompetent or children, not property.

  • Llama Face||

    My bad.

  • ||

    ---"It was never the intention of the founders that a cunt like Michelle Bachmann sit in the halls of Congress. Lets' have some reverence for the original intent of the blessed founders."---

    But the Framers put in a mechanism so that needed changes could be made from time to time. Nowhere, though, did they write that the Government could just ignore the parts it didn't like.

  • The Truth||

    The Founder Cult is chillingly remminiscent of the last days of the Soviet Union where the government would always sit around asking "What would Lenin have done? We need to be more like Lenin! Lenin will give us the answers!"

  • Old Mexican||

    Re: The Truth,

    The Founder Cult is chillingly remminiscent of the last days of the Soviet Union where the government would always sit around asking "What would Lenin have done? We need to be more like Lenin! Lenin will give us the answers!"


    Indeed!

    So... what's your point?

  • The Truth||

    My point is that an idiotic, cultish worship of figures that have been dead for centuries and have no relevance to modern problems leads to backwardness, political sclerosis, stagnation, and eventually collapse.

    Another example would be China from 1800 to 1912. Instwead of immitating the industrial west and reforming their political system along those lines, the Chinese instead relied on an inflated sense of their own specialness and exceptionalism and asked themselves what the ancients would have done. Surely, the ancients Emperors wouldn't adopt the same system as the red-faced, hairy barbarians! China is the #1 country in the world, and always will be! They had nothing to learn from them! This of course led to economic implosion, collapse, and eventual subjugation by foreign powers.

    Sound familiar? We're starting down that road.

    Compare it to Japan in the same time period that didn't give a shit what the Founding Emperors would have done and took the best ideas from foreign nations, becoming the first country outside the west to successfully industrialize.

  • sevo||

    The Truth|2.2.11 @ 12:45PM|#
    "...Another example would be China from 1800 to 1912...."

    Or some dingbat troll posting on the net; there's another example of, well, a dingbat troll posting on the net.
    Like that, right?

  • The Truth||

    Got a real response, or just sneering and empty insults?

    Sorry if my historical parallel is too chilling for you to contemplate. Maybe you should go play videogames instead.

  • Mr. FIFY||

    Talk about sneering and empty insults...

    ...hypocrite.

  • sevo||

    The Truth|2.2.11 @ 1:08PM|#
    "Got a real response,...."

    You post a series of lies from which you draw conclusions so laughable they'd be hooted out of a high-school history class, and you want what?
    Go away twit.

  • Professional Critic||

    It's not about the people, it's about the fucking text. If you don't like the Constitution, change it the way it's supposed to be done.

  • DLM||

    It's not about the people, it's about the fucking text. If you don't like the Constitution, change it the way it's supposed to be done.

    A constitution is a set of rules by which the government is to be run. It's generally not a good idea to constantly change the rules in middle of the game without substantial agreement from all players. That's something a 6-year-old does.

  • Tony||

    Got a real response, or just sneering and empty insults?

    It's sevo....

  • Old Mexican||

    Re: The Truth,

    My point is that an idiotic, cultish worship of figures that have been dead for centuries and have no relevance to modern problems leads to backwardness, political sclerosis, stagnation, and eventually collapse.


    And? Who said people are following what the Founders said? What the government is supposed to do is follow the Constitution, not the opinions of the so-called Founders.

    What is being discussed is the constitutionality of the bill. If the Constitution, which the government officials SWORE to OBEY, does not give Congress the authorization to make YOU or ME buy ANYTHING, then what's the point of bringing up the anachronistic nature of the Founders' opinions? What are you trying to say?

  • Constitutional Adhesive||

    Adherence to the Constitution does not preclude modernization. The Constitution is a framework under which new laws can be drafted, debated, passed, enforced and evaluated. With that said, those new laws must be in line with limits on government powers imposed by the Consititution. The only way to legally extend the powers of government is through amendments to the Constitution. Anyone who believes the government needs more power is free to propose such amendments.

  • Red Rocks Rockin||

    Compare it to Japan in the same time period that didn't give a shit what the Founding Emperors would have done and took the best ideas from foreign nations, becoming the first country outside the west to successfully industrialize.

    What a load of crap--it was less a reverence for the philosophical traditions of the emperors, than it was a desire by the merchant and bureaucrat classes to break the power monopoly of the shoguns in the Imperial government, (aided in no small part by Perry's destruction of the shoguns' sakoku policy) that led to Japan industrializing.

  • The Truth||

    Oh, if we relied on the "plain reading of the Constitution" and "original intent" we would have never gone to the moon, for example, or give the President authority to respond unilaterally to a nuclear attack.

  • ||

    Please don't feed the troll. Please.

  • Barely Suppressed Rage||

    There's a troll in here? Who let it in?

    Warty? I told you to keep the fucking toilet lid down!

  • ||

    It's anonypussy! He's everywhere!

  • DesigNate||

    I wonder if him and SM are the same person, they're both insufferable to read.

  • tarran||

    You mean we could have missed out of the stagflation of the 1970's in and suffered from rising prosperity for the whole of the nation?

    OMG, we're so lucky to have dodged that bullet!

    Without chronic unemployment, where would I find a supply of urchins to polish my monocle in exchange for the right to pick up coins I drop in my toilet?

  • The Truth||

    The Stagflation was caused by the oil shock and was completely out of our control in the short term.

    In the long term we could have developed green energy and improved efficiency so we'd be prepared for the next one but...

    That's commie shit! What are you, some kind of dirty liberal? Haha, I'm going to drive an SUV just to piss you off! JIMMY CARTER!

  • .||

    The "Stagflation" was caused by an expansion of the money and credit supply and the fact that oil-exporting countries got tired of being paid with funny money that kept losing its purchasing power. Can't say I blame them much either.

  • Old Mexican||

    Re: The Truth,

    The Stagflation was caused by the oil shock and was completely out of our control in the short term.


    Your statement tells me you have no grasp of the subject you're commenting on.

  • zoltan||

    The oil shock was caused by price controls...by the U.S. government. About the same amount of oil was sold each year of the shortage in the U.S. than previous years. Price ceilings made sure suppliers couldn't control excess demand by upping the price. Check out Basic Economics by Thomas Sowell to see a more in-depth explanation.

  • sevo||

    The Truth|2.2.11 @ 12:30PM|#
    "The Founder Cult is chillingly remminiscent of the last days of the Soviet Union where the government would always sit around asking "What would Lenin have done?"

    Except for the little problem that it never happened.
    Go away.

  • Shorter The Truth||

    I hate constitutional republics.

  • ola||

    As written in the decision.
    "For the reasons stated, I must reluctantly conclude that Congress exceeded the bounds of its authority in passing the Act with the individual mandate. That is not to say, of course, that Congress is without power to address the problems and inequities in our health care system. The health care market is more than one sixth of the national economy, and without doubt Congress has the power to reform and regulate this market. That has not been disputed in this case. The principal dispute has been about how Congress chose to exercise that power here."

    What's with the bullshit that he reluctantly concludes? What's with the statement "That is not to say, of course, that Congress is without power to address the problems and inequities in our health care system."? I can see the preamble in the lib's next proposed health care law quoting this.
    This judge ought to keep his decisions to the facts and the constitution and not his fucking statements about the congress having the power to reform and regulate something that is not interstate.

  • ola||

    Why didn't Vinson write that he "fucking enthusiastically concludes"?

  • Old Mexican||

    The White House's position is clear. When U.S. District Judge Roger Vinson ruled this week that Obamacare was unconstitutional — due to its individual mandate — the White House's first reaction was to call the ruling "out of the mainstream," as if it were remotely true or that it even mattered.


    Basically an Argumetum Ad Populum.

    "When in doubt, appeal to the wisdom of the people."
    Old Statist proverb.

  • Llama Face||

    "When in doubt, appeal to the wisdom of the people."
    Old Statist proverb.

    Except when the people disagree with you. Then appeal to the wisdom of the ruling class and technocrats who know better what's good for us.

  • Old Mexican||

    Pathos, after all, is the most effective tool for passing liberal social policy[...]


    Also known as an Appeal to Emotions or Argumentum Ad Misericordiam.

    "When in doubt, appeal to pity/the chidren/the poor."
    Old Statist proverb.

  • The Truth||

    Abolish the Air Force! It's not in the plain reading of Constitution!

  • The Truth||

    And from now on, "Right to bear arms" will mean the right to own a smoothbore, flintlock musket and nothing else, because that's what The Founders (tm) had in mind when they wrote it!

  • The Truth||

    And to be consistent with this reasoning, they also meant that only movable-type, wood-block, manually-operated printing presses were protected by the freedom of the press! After all, there's no way they could have foreseen television or radio.

  • The Truth||

    This is supposed to be a spoof of me?

    Using libertarian "logic", you're exactly right! And I made the same point downthread.

  • The Truth||

    I have no real point to make, but I like making these little squeaky noises!

  • ||

    Shut up, anonypussy!

  • WTF||

    I can't tell the real one from the spoof - both are equally idiotic.

  • DLM||

    I can't tell the real one from the spoof - both are equally idiotic.

    He's just schizoid.

  • ||

    Actually, although there isn't as much documentation to back this up, "right to bear arms" was really preserving the American's ability to wear sleeveless shirts. Because they were still developing amidst their independence, there was a shortage of cloth and other shirt-making materials. So the Founders made sure that even if the country prospered following the ratification of the Constitution, Americans would forever be able to show their appreciation of their country by asking their friends if they already had tickets to the gun-show.

  • Nipplemancer||

    I wish to subscribe to your newsletter sir.

  • MNG||

    It's the job of judges to strike down legislation that conflicts with provisions of the Constitution. I don't think that is activism, those provisions are adopted by a supermajority whereas the legislation in question rarely is.

    Having said that I think Vinson got it wrong. Art I Sec. 8 gives Congress the power "to regulate" trade "among the several states." While many people here point to the fact that regulate may have meant "to make orderly or uniform or constant" at that time it certainly also meant "to make rules concerning" (in fact it is used so two other times in Art I). Some point to statements from some of the drafters about how they expected the power to be used. Even if this were somehow dispositive (we don't know if that is what a majority of the drafters were expecting) we are not bound the few possible uses of a power that the drafters expected. A law that is written to break up criminal conspiracies in an effort to combat mobsters can be used to combat terrorists consipiring, or an Amendment expected to give equal protection to black people can be applied to give the same to whites or arabs or what have you.

    So Congress has the power "to regulate" interstate commerce. A mandate to buy is as much of a regulation or rule as a prohibition to buy and health insurance is clearly an interstate market.

  • Gregory Smith||

    If that's the case, then maybe congress can force you to hire a personal trainer and exercise, can it not? That is trade.

    At least the Judge understands that this is not nazi germany and we don't need fuhrer Obama forcing us to buy healthcare.

  • MNG||

    I think they could mandate you hire a trainer, but they could not make you exercise. They would be stupid to the former. Some things are political, not everything is constitutional.

  • zoltan||

    They could make you exercise if they hold a gun to your head and the promise of imprisonment.

    But it's different when they use those threats just to get your money.

  • fish||

    So you're fine with the South Dakota legislation that will compel....a personal mandate if you will.... all citizens to buy a gun?

  • ||

    That actually depends on what the South Dakota Constituion says. My guess is that a state constitution doesn't have a commerce clause, the mandate would not be thrown out due to violating said clause.

  • Brett L||

    States are not bound by the Constitution except as the 14th Amendment has been applied or as it explicitly states. Individual states can compel gun ownership for households the same way they can compel insurance for cars operated by licensed drivers.

  • Michael Ejercito||

    States are not bound by the Constitution except as the 14th Amendment has been applied or as it explicitly states. Individual states can compel gun ownership for households the same way they can compel insurance for cars operated by licensed drivers.


    For that matter, they can mandate the purchase of health insurance.

    Of course, this does beg the question of why the proponents of this law did not instead try to have such laws enacted on a state-by-state basis to avoid Article I concerns.

  • Sovereign Immunity||

    For that matter, they can mandate the purchase of health insurance.

    Effective strategy, Micheal, but too inefficient. Besides, they already have the groundwork laid out, namely Medicaid and the funding of medical schools and residencies. There is also that pesky RomneyCare that other states see as an albatross and Romney refuses to disown and admit Mass made a mistake. I will vote for Obama before I will vote for Romney, should he be the Repub nominee.

    Same strategy of using interstate highways to bully states into doing the Fed's will.

    This law is just hurrying the process that would naturally be implemented, had progressives been more patient.

    Of course, this does beg the question of why the proponents of this law did not instead try to have such laws enacted on a state-by-state basis to avoid Article I concerns.

    Obama is on record saying that the "...Constitution is an impediment..."; sheer progressive hubris is the answer to that question.

  • fish||

    Individual states can compel gun ownership for households the same way they can compel insurance for cars operated by licensed drivers.

    And if a person chooses not to drive....can they still be compelled to purchase auto coverage as a consequence of merely existing?

  • DesigNate||

    AFAIK in Texas, you don't have to have insurance if you don't have a drivers license.

  • ||

    Or more to fish's point, even if you have a driver's license in TX, you still are not required to have insurance unless you own a car.

  • Gilbert Martin||

    "Of course, this does beg the question of why the proponents of this law did not instead try to have such laws enacted on a state-by-state basis to avoid Article I concerns."

    For the same reason that liberals try to federalize everything: they don't want there to be anyplace that people can escape to to avoid their authoritarian BS.

    And of course, any state who doesn't go along with the program will have competative advantages over those that do and thrive accordingly, given the fact that every single liberal program, policy and preferred way of doing anything always turns out to be an abject failure.

  • kbolino||

    For the record, this is not a uniquely liberal phenomenon. Conservatives used the exact same tactic to ban all marijuana everywhere no matter what, and to ban so-called partial-birth abortions. See Gonzales v. Raich and Gonzales v. Carhart.

  • MNG||

    I think a federal law to mandate purchase of a firearm, if its goal was to promote interstate commerce, would be constitutional, yes. Again, a dumb one but constitutional.

  • Barely Supressed Rage||

    Wrong again.

  • Barely Supressed Rage||

    Where does the Constitution empower Congress to "promote interestate commerce"?

    Ans.: it doesn't.

  • MNG||

    Heck, you're the one who says that "regulate" means "to make orderly, uniform or constant" or something like that...

  • tarran||

    None of which are synonomous with 'promote'.

  • fish||

    Then why aren't we having states in financial trouble mandate the citizens buy homes, cars, guns to Krugman their way out of their respective financial holes?

  • #||

    So prior to the adoption of the bill of rights, what wasnt the federal government authorized to do?

  • Cyto||

    Yep, you've got their argument down pat. Too bad it is utter drivel. In the first instance, there is no interstate commerce in health insurance. By regulation all health insurance is intrastate. So there goes one of the required factors.

    Next, "not buying" is not commerce. It is in fact the opposite of commerce. So you're little argument manages to twist "Regulate trade among the several states" into "mandate trade within a state" This is fundamentally incompatible with any honest reading of the document.

    Just to be clear, here's the actual clause:
    "[The Congress shall have Power] To regulate Commerce with foreign Nations, and among the several States, and with the Indian tribes"

    Now, argue all you will, but the language in there about with Indian tribes and foreign nations makes it pretty clear to me that we are talking about trade across boundaries - particularly tariffs and trade restrictions. Morphing that into banning the growth of a plant (Wickard and Raich) or requiring the purchase of a service (health insurance) is not just a stretch. It is an utter disregard for the limits of the law imposed by a constitutional system of government.

    Of course, that is a completely separate question from whether or not mandating that everyone have insurance coverage is a good idea. That's something that the Stephens, Sotamayors and Obamas of the world forget. Just because it is a good idea, that doesn't mean it is constitutional. And just because something is a bad idea, doesn't make it unconstitutional (e.g. from the left point of view, Citizens United).

  • Vermont Gun Owner||

    MNG always ignores everything after "regulate Commerce", focusing only on "regulate" and somehow assuming "with foreign Nations, and among the several States, and with the Indian tribes" means any activity that taken in the aggregate has a substantial effect on interstate commerce.

    Although I wonder if he's arguing about what the Constitution actually allows, or practically what will be allowed by the courts (which are two different things). The later would explain quite a bit of his confusion between "with foreign Nations, and among the several States, and with the Indian tribes" and "interstate commerce."

  • MNG||

    There need be no confusion, or rather it is a confusion that your side would suffer from as well. It's true that we can't make Egyptians buy health insurance, but it is also true that we can't set their tariffs for them either.

  • Vermont Gun Owner||

    But we can set tariffs on Egyptian goods, being commerce with a foreign nation. Just like Congress can control tariffs between states, but can't make citizens buy health insurance.

    And this may clear up some issues, are you arguing about what is constitutional, or will practically be allowed?

  • MNG||

    "Just like Congress can control tariffs between states"

    That's an interesting reading seeing as how it specifically says it is the commerce among the states, not the tariffs, that Congress is empowered to regulate. Sure, one can regulate commerce by tinkering with state tariffs, but that is not the only way to "regulate...commerce."

  • Vermont Gun Owner||

    And this may clear up some issues, are you arguing about what is constitutional, or will practically be allowed?
  • MNG||

    I didn't answer because I am not sure what you are getting at...I guess I'm saying both that given precedent and in some cosmic sense the power "to regulate...commerce among the states" could include a mandate to participate in interstate commerce. I hope that clears it up...

  • WTF||

    For fuck's sake - MNG's interpretation of the commerce clause requires the rest of the constitution to have virtually no meaning. Since it is illogical to assume the founders intended things like the enumerated powers to have no meaning and for all limits on congress to be superseded by the phrase "regulate commerce..among the several states", such an interpretation is obviously idiotic.

  • #||

    exactly... i often ask, why did they put a clause for pattents or weights and measures? This implies that that these powers are seperate and that interstate commerce is not inclusiove of these two.

    Under MNG's interpretation of the commerce clause, these two other powers are redundant. Did the founders just feel like wasting some ink that day?

  • Vermont Gun Owner||

    I'm trying to see if you are arguing about what the Supreme Court will let stand (in which case you have a reasonable position) or what is actually constitution 'in a cosmic sense.' Judging from the way you phrased it, it seems that you don't think there is any meaning to constitutional beyond what the Supreme Court says.

  • MNG||

    "there is no interstate commerce in health insurance"

    Really? And here I thought Aetna, Blue Cross, etc., operated in more than one state...

    "Next, "not buying" is not commerce."

    Ask any businessman whether people not buying effects his commerce as much as buying.

    "language in there about with Indian tribes and foreign nations makes it pretty clear to me that we are talking about trade across boundaries - particularly tariffs and trade restrictions"

    That's neat, the plain language says it has the power to regulate, period, but that should be trumped by an implication...That's "pretty clear?"

    "Of course, that is a completely separate question from whether or not mandating that everyone have insurance coverage is a good idea."

    Agreed. I think it's a stupid and immoral idea.

  • Barely Supressed Rage||

    The Constitution does not empower Congress to require people to engage in an activity if not engaging in that activity might have an effect on interstate commerce.

    Inactivity self-evidently is not commerce. "Commerce" is an activity -the buying and selling of commodities. Where it is occurring among the states, Congress has the power to regulate it. There is nothing in the Constitution empowering Congress to cause commerce to occur where it is not otherwise occurring. There is nothing in the Constitution empowering Congress to require individuals to engage in economic activity when they are not otherwise engaging in that activity.

    Your grasp of fundamental logic leaves much to be desired.

  • MNG||

    Again, ask any businessman if people not buying his wares effects his commerce in the same way and degree as people buying it.

  • Vermont Gun Owner||

    Causing an effect to commerce isn't the same as being commerce.

    I can burn down a factory and that will affect manufacturing, but arson isn't manufacturing.

  • MNG||

    Granted, but not buying both causes an effect and is, well, part of commerce. A critical part. It's not indirect in any sense.

  • So...||

    Everything is part of everything is the argument you continue to make. The only end result can be authoritarian rule, but for the graces of our powers. Elections effect commerce, therefore congress has the power to discontinue elections if they feel like it. Constitution=void and null.

  • ||

    If they are not buying , then it's not commerce, only when it actually is commerce may it be regulated, and even that is only in regard to the states, not people.

    Also, the clause does not say activities that affect commerce, only commerce, this "affect commerce" crap is something clearly not there, and would indeed make the commerce clause plenary and every other clause unnecessary.
    You really are dense

  • Cyto||

    You thought wrong. Blue Cross sets up individual companies in each state (traditionally non-profits, don't know about currently)
    Same goes for the for-profits, they have individual corps for each state.
    Every state has local insurance regulation and insurance commissioners. You cannot buy health insurance in florida if you live in georgia. I know, because my company opened an office in florida and we had to get two different insurance plans, one for each state.

  • MNG||

    So each Blue Cross in each state has no profit sharing or coordination with each other? That's incredible.

    What you are thinking of is that there are many multi-state insurance companies, but each state can set its own regulations and each company has to offer unique plans in each state. It's as if each state could tell McDonalds what they could put in the Big Mac and 50 different versions of the big mac were sold.

    Look, I'm not going to defend that. Were I king getting rid of that system would be one of my first acts.

  • So...||

    That is what having different corporations means. No profit sharing unless via transfer pricing for non healthcare related goods. This is how they get around the idiotic law.

  • Fatty Bolger||

    Really? And here I thought Aetna, Blue Cross, etc., operated in more than one state

    They set up separate companies for each state. Stupid, huh? That's the kind of thing Congress could legitimately use the commerce clause to fix, and allow insurance to be sold across state lines.

  • MNG||

    So each Blue Cross in each state has no profit sharing or coordination with each other?

    Guess you missed that the first time.

  • Cyto||

    yes, they do not share profits. (they are mostly non-profits)

    Also, if I set up a taco stand in Minnesota using only Minnesota derived products in my business, but I live in Wisconsin - the location of the owner does not change the "intrastate" nature of the commerce. The commerce takes place between the customer and the seller.

    In the case of insurance, the companies that operate in multiple states set up wholly owed subsidiaries in each state. They are stand-alone companies that pay their own corp income tax. It is not currently legal to sell health insurance across state lines, so they have to do this.

    Just because they have the same name, doesn't mean they are the same company. (and different names don't make them different companies) AETNA is a huge insurance conglomerate. Here's a clip from their web page directory of companies:
    "Aetna" is the brand name for products and services provided by one or more of the Aetna group of subsidiary companies. Please make a selection to view Aetna's name related to a state.

    See? There is no inter-state commerce in health insurance because it has been set up that way by government regulation. So no, you can't claim to be regulating interstate commerce by regulating health insurance. It doesn't cross state lines.

  • ||

    ""Having said that I think Vinson got it wrong. Art I Sec. 8 gives Congress the power "to regulate" trade "among the several states." ""

    That is true, and no understanding of that could be applied to the citizen level, citizens are not states.

  • ||

    The part about Art I is ture, not Vinson getting wrong.

  • MNG||

    You think it was meant to apply to trade among state governments? WTF?

  • Dick Fitzwell||

    God forbid that the clause actually means what it says!

    From Federalist 42 for the nth time:

    The defect of power in the existing Confederacy to regulate the commerce between its several members, is in the number of those which have been clearly pointed out by experience. To the proofs and remarks which former papers have brought into view on this subject, it may be added that without this supplemental provision, the great and essential power of regulating foreign commerce would have been incomplete and ineffectual. A very material object of this power was the relief of the States which import and export through other States, from the improper contributions levied on them by the latter. Were these at liberty to regulate the trade between State and State, it must be foreseen that ways would be found out to load the articles of import and export, during the passage through their jurisdiction, with duties which would fall on the makers of the latter and the consumers of the former. We may be assured by past experience, that such a practice would be introduced by future contrivances; and both by that and a common knowledge of human affairs, that it would nourish unceasing animosities, and not improbably terminate in serious interruptions of the public tranquillity. To those who do not view the question through the medium of passion or of interest, the desire of the commercial States to collect, in any form, an indirect revenue from their uncommercial neighbors, must appear not less impolitic than it is unfair; since it would stimulate the injured party, by resentment as well as interest, to resort to less convenient channels for their foreign trade. But the mild voice of reason, pleading the cause of an enlarged and permanent interest, is but too often drowned, before public bodies as well as individuals, by the clamors of an impatient avidity for immediate and immoderate gain.

    Take it up with Mr. Madison.

  • MNG||

    Dude, that is what Federalist number 42 says, not what Art. I Sec. 8 says.

  • Dick Fitzwell||

    Fair enough. ICC says "regulate trade...among the several states..." Your question was, "You think it was meant to apply to trade among state governments?"

    If you don't see why your question is absurd, please read Madison's explanation in Federalist 42.

    If you still don't get it, kindly go piss up a rope.

  • Gilbert Martin||

    And Article I Sec. 8. doesn't say anything about things that "have an effect" on commerce.

  • ||

    And it certianly doesn't say "among the feds and the citizenry".

  • ||

    ""You think it was meant to apply to trade among state governments? WTF?""

    More or less, yes. If you don't understand why, they perhaps you should look up the issues regarding commerce among the state prior to the Consitituion, which that clause was meant to resolve.

    And btw, it applys to laws created by the state. A state can not pass a law about collecting tariffs from other states, that decision would be left to the feds.

  • ||

    No you fucking idiot, it means that congress may determine how to regulate commerce that crosses state lines in order to not have trade wars among the states.

  • Cyto||

    It also means that the states cannot set tariffs or trade regulations with foreign nations. This power is reserved for the federal government.

    It is pretty straightforward. It is astonishing that this simple to interpret clause has been used to emasculate the constitution. Read the way the Obama administration is advocating, the commerce clause renders the rest of the constitution almost entirely meaningless.

  • DLM||

    You think it was meant to apply to trade among state governments? WTF?

    You think "states" is equivalent to "state governments"? State have boundaries (not necessarily physical) which define what that state is. Anyt trade that crosses that boundary is trade among states.

  • cynical||

    That doesn't mean that mandates affecting intrastate commerce get to piggyback in on that power, and since both health care and health insurance are predominantly intrastate commerce...

  • Michael Ejercito||

    A mandate to buy is as much of a regulation or rule as a prohibition to buy and health insurance is clearly an interstate market.


    How is health insurance an interstate market?

  • Sovereign Immunity||

    DING DING DING!

    You just hit the jackpot Micheal!

  • ||

    Even if it was, the commerce clause would be about state to state interaction of that market, not state to citizen or fed to citizen.

  • ||

    Hell even Obama knows this, and commented accordingly during his campaign. He's conviently ignoring it.

  • Mensan||

    What's at issue is not Congress' power to regulate commerce, but rather it's (nonexistent) power to regulate non-commerce.

  • Monty||

    "What's at issue is not Congress' power to regulate commerce, but rather it's (nonexistent) power to regulate non-commerce."

    I hope we can steer the issue of what Congress can regulate. Maybe this debate will open more eyes to the use of commerce clause to gut the Constitution.

  • Dick Fitzwell||

    If you think that the ICC gives gov't the power to force the citizens to buy a product then you either just want to believe that really badly (for whatever reason) or English is not your native language.

    It makes just as much sense to say that congress has the power to regulate commerce within the states as it does to say that congress has the power to regulate commerce within foreign nations.

    If you can't read English, that's your fucking problem.

  • Old Mexican||

    Re: MNG,

    Having said that I think Vinson got it wrong. Art I Sec. 8 gives Congress the power "to regulate" trade "among the several states."


    It does not say "Congress has the power to make you buy anything it strikes its fancy."

  • MNG||

    It means it can make rules concerning. Rules sometimes prescribe actions.

  • GNM||

    Any activity or failure to act has an effect on commerce, therefore Congress has unlimited power to regulate anything, and the rest of the Constitution is just meaningless verbiage put there for no good reason. QED!

  • Old Mexican||

    Re: MNG,

    It means it can make rules concerning. Rules sometimes prescribe actions.


    Only "actions" that are pursuant of the Constitution, MNG. A mandate that violates the 9th Amendment is NOT in pursuance of the Constitution, thus making a rule such as the insurance purchase mandate UNconstitutional.

    Besides this, you're reading the clause incorrectly - it does NOT say Congress can regulate interstate commerce, it says it can regulate commerce AMONG THE STATES - NO, it is NOT the same thing. Commerce between the States indicates anything the States themselves do or don't do concerning commerce, like tariffs, fees or special duties. The clause does not say Congress can regulate commerce among PEOPLE.

  • ||

    OMFG, you are too dense!! Yes certain actions may be required when actually ENGAGING in commerce, but only so that no is privileged, or that any state makes an unique law.

  • Old Mexican||

    Re: MNG,

    So Congress has the power "to regulate" interstate commerce.


    No, the Constitution specifically says that Congress has the power to regulate commerce among the States, not "interstate" commerce.

    A mandate to buy is as much of a regulation or rule as a prohibition to buy and health insurance is clearly an interstate market.


    The problem is that it isn't, as health insurance is not offered across state lines. And your conclusion is still incorrect, as Congress would only be able to regulate Health Insurance, not people.

  • ||

    Holding government to its limits is hardly activism.

    You're going on the antediluvian terrorist list.

  • ||

    The Founder Cult is chillingly remminiscent of the last days of the Soviet Union where the government would always sit around asking "What would Lenin have done? We need to be more like Lenin! Lenin will give us the answers!"

    Louder!

    Have another cup of Purple passion.

  • The Truth||

    Clearly, the plain reading of the First Amendment refers to "freedom of the press", which The Founders (tm) intended to mean print media like newspapers and books.

    Therefore, the government can censor TV, radio, the internet, and any other kind of media that isn't published through a printing press. Anything else would violate the plain reading of the Constitution!

  • Mr. FIFY||

    No, they can't.

  • mr simple||

    You ability to write while lacking any ability in reading comprehension is quite astounding.

  • Old Mexican||

    Re: The Truth,
    Therefore, the government can censor TV, radio, the internet, and any other kind of media that isn't published through a printing press. Anything else would violate the plain reading of the Constitution!
    There's no "therefore" - 9th Amendment.

  • Old Mexican||

    Re: The Truth,

    Therefore, the government can censor TV, radio, the internet, and any other kind of media that isn't published through a printing press. Anything else would violate the plain reading of the Constitution!


    There's no "therefore" - 9th Amendment.

  • The Founders||

    Some of us argued against a Bill of Rights, because even though it is plainly obvious that the enumerated powers in the constitution didn't include any abilities to interfere with those rights to begin with, adding an extra redundant prohibition might confuse stupid people into thinking the federal government had legitimate powers that it didn't.

    Others of us said "No, of course not - nobody could be that stupid!" Thank you for showing us The Truth.

  • ||

    Or you!

  • ||

    NOT EVEN CLOSE!!. The federal government is still limited to the powers given, and as it was not given any censoring power, it doesn't matter what form communication takes,it cannot be censored.

    You read the US constitution in a backward manner, the Bill of Rights were not exceptions to unlimited power, the powers delegated are the limits of what the federal government may do.

  • ||

    Louder!

  • The Truth||

    That's exactly what your mom was saying last night, Brooks.

  • The Truth||

    While she was shoving a giant dildo up my ass. WHEEEE!!!!

  • ||

    Ooh, "mom" jokes.

    When you have nothing to say, say it really loud!

  • Draco||

    I still say you can bring down PPACA (and any subsequent attempt at single payer or other government takeover of this crucial sector of the economy) by means of a doctors' strike.

    Doesn't even need to be a majority of doctors. If you had 30% of doctors join forces and say "we are not going to perform any but emergency medical services until you repeal PPACA" the life of the middle class would become unbearable within weeks, if not days, and Harry Reid would be on the floor of the Senate organizing a vote on the Repealing the Jobs Killing Obamacare Law stat.

    Would this be a violation of the Hippocratic oath? I don't care. It would work.

    And of course, if this doesn't happen, and we are stuck with PPACA or the almost inevitable Single Payer when PPACA fails, we'll have the strikes anyway - just decades down the line when doctors are more like garbage collectors and nurses are more like toll-booth workers and they demand higher pay and benefits from the State.

  • cynical||

    You assume the public would blame politicians, rather than blame doctors.

  • Michael Ejercito||

    You assume the public would blame politicians, rather than blame doctors.


    I am surprised the public does not clamor for price controls on those greedy doctors.

  • Sean Mack||

    You also assume at least 30% of doctors oppose the law, which in typical public choice fashion they probably don't.

    For them statist medicine over the long haul means guaranteed income, reduced work, restricted entry for competitors, automatic bumps for seniority and specialty certifications, insulation from law suits and consumer demands, and Mandarin social status.

    It's the patients who should strike.

  • Mensan||

    "... insulation from law suits ..."

    Qualified immunity for government physicians? The trial lawyers would never let that happen.

  • Draco||

    IIRC a clear majority of doctors opposed, and still oppose, PPACA. For that matter, so does a clear majority of the American people, before, during, and after its passage on a strict party line vote. I've heard tell that in fabled places like Egypt when such clear majorities assemble and issue demands, governments topple. Must be nice.

  • Barely Suppressed Rage||

    One thing that never fails to amaze and depress me is how so many people utterly and completely fail to grasp the concept that the Constitution is founded up and sets forth certain fundamental - i.e., foundational and immutable - principles. And that these are, in fact, not rules for conduct, but principles regarding the proper role of government vis-a-vis the governed, and that these principles, being immutable and foundational, do not change, but can rationally, fairly and reasonably be applied to modern circumstances, regardless of "changed circumstances" or the lack of foreseeability of technological developments.

    Take, for example, oh, I don't know, let's say the First Amendment's guarantee of freedom of the press. Only a idiot douchebag would argue that it protects only "the press" as the Framers understood it to exist at that time. By its plain wording, it protects the press - i.e., means and media of communication. Similarly, the First Amendment protects the freedom of speech. Although the Framers could not have foreseen telephones, this doesn't mean that your protected freedom of speech does not include the use of a telephone.

    By the same token, it's sad when people who can't understand these seemingly simple concepts (simple and understandable for any reasonably intelligent person capable of critical and analytical thought - but of course, that unfortunately leaves out a vast swath of the American public these days) attempt to apply the same expansive reading of the rights guaranteed by the Bill of Rights to the powers delegated to the government.

    These are people who apparently slept through (or simply never attended) that portion of the course that explained the distinction between rights retained by the people and powers delegated by them to the government, and how those provisions are (or were intended to be) read and applied.

    Ignorance really is not bliss, after all. It simply is pig-headed ignorance.

  • The Truth||

    "Necessary and proper", jackass. Read it and weep.

  • Barely Supressed Rage||

    Thank you for so clearly making my point, and for doing so in the style and manner so typical of the ignorant leftist statist.

  • The Truth||

    Hey BSR, what would The Founders (tm) say if we were under nuclear attack and the President responded without consulting Congress?

    Clearly, that's a violation of The Constitution! And The Constitution only talks about an "army and navy", it doesn't say anything about an Air Force or strategic missiles!

  • .||

    What makes you think the President would respond? B.J.Clinton once said we'd be willing to take a nuclear strike on one of our large cities in the interests of peace.

  • Michael Ejercito||

    B.J.Clinton once said we'd be willing to take a nuclear strike on one of our large cities in the interests of peace.


    When did he say this?

  • Barely Supressed Rage||

    Apparently, you're not only completely ignorant of the history and meaning of the Constitution and the philosophical principles upon which it was based, but you're also ignorant of the federal laws (enacted by Congress) setting forth the president's powers to act in defense of the country.

  • ||

    ""Clearly, that's a violation of The Constitution! And The Constitution only talks about an "army and navy", it doesn't say anything about an Air Force or strategic missiles!""

    Well I guess nuke subs launching the retalitory strike is fair game.

  • ||

    "" it doesn't say anything about an Air Force or strategic missiles!""""

    It doesn't say anything about swords, or cannons either. So any weapon in the naval arsenal would be ok.

  • Michael Ejercito||

    Hey BSR, what would The Founders (tm) say if we were under nuclear attack and the President responded without consulting Congress?


    They would tell you to suck their dicks.

  • Old Mexican||

    Re: The Truth,

    Hey BSR, what would The Founders (tm) say if we were under nuclear attack and the President responded without consulting Congress?


    Uh.... duck?

  • Barely Supressed Rage||

    To wit: the Constitution most decidedly does not authorize Congress to establish such legislation as it may deem to be "necessary and proper" in its sole discretion.

    Instead, it sets forth limited and enumerated powers of Congress and then says that Congress can enact laws necessary and proper "for carrying into execution the foregoing Powers."

    The necessary and proper clause enable Congress to act only for the purposes of exercising its limited, enumerated powers - not just to do whatever the fuck it damn well pleases.

    Even the most ardent of Federalists, Alexander Hamilton, along with James Madison (you know, that crazy old dead white guy known as "the father of the Constitution" because he wrote most of it) argued that the Necessary and Proper clause permits only the execution of powers expressly granted by Article I, Section 8 - not plenary lawmaking authority.

  • The Truth||

    *yawn*

    I don't give a shit what The Founders(tm) would do. What would they do today? Probably be astonished that women wear pants and "negroes" can vote. They have nothing to say about modern issues, nothing.

  • sevo||

    The Truth|2.2.11 @ 1:45PM|#
    "I don't give a shit what The Founders(tm) would do....

    Well, good. The founders don't give a shit about brain-dead ignoramuses, so you're even

  • The Truth||

    I guess they wouldn't because they're..you know...dead.

    Just like the Cult of Lenin, I swear.

  • Barely Supressed Rage||

    We do not worship the Founders - they were incredibly smart and well-educated, but they were, after all, men and flawed.

    I adhere to the principles they espoused and adhered to - not simply because they espoused them and adhered to them, but because I find them (the principles) to be worthy of merit.

    But maybe that's beyond the ability of your evidently limited reasoning faculties to comprehend.

    You espouse a standardless government, guided by nothing other than current exigencies, ignorant of the principles upon which it was based and that authorize its actions. A boat with no rudder other than what appears to serve the ends desired at the present time.

  • Shorter The Truth||

    Can't we just go back to Roman days when a small minority voted in a bunch of old perverts to impress their will upon the people however they pleased

  • Vermont Gun Owner||

    In that case the feds have no authority at all.

  • Barely Supressed Rage||

    If the men who created the Constitution have nothing to say about what it means, then the Constitution itself is meaningless and we can just ignore it and do whatever we think most people would like.

    I hope for your own sake you've got a bulletproof head.

  • MNG||

    Everything that Scalia says about the futility of allowing "legislative intent" to guide interpretation applies to using the Founders expectations to guide the same. We don't know what everyone who created the Constitution thought about it. We only know what a few of them were willing to write down for posterity.

    This hardly leads to a standardless government. We should be bound by the "ordinary meaning" of the words of the text until and unless it is changed via the proper process.

  • ||

    Ordinary meaning at the time the relevant constitutional provision was ratified, sure.

    Glad to see you embracing original public meaning originalism, MNG. Shame you still have your head firmly planted in your ass about the original public meaning of the word "regulate."

  • ||

    That's fine, as long as you're consistent about it. But you "living constitution" types never are. You won't hesitate to invoke the damn thing to protect rights that YOU like.

  • MNG||

    "They have nothing to say about modern issues, nothing."

    I'm not sure I agree here. I agree that their private musings and proclamations mean little, but the laws they enacted are binding law until and unless changed via the proper process.

  • ||

    so you're espousing a tyranny with no structured laws or precedence? Yikes - lefties are the real fascists.

  • DLM||

    Yikes - lefties are the real fascists.

    I've always found it amusing that when lefties speak of fascism they name only Hitler. There is never a mention of Mussolini, the founder of fascism and a self-identified socialist. He was not enamored of the relatively slow progress socialism was making and sought a more revolutionary avenue in the wake of and inspired by the events of WW1. I see no reason such impatience from leftists can not reappear given the right circumstances.

  • ||

    I don't give a shit what The Founders(tm) would do.

    Shorter The Truth: "Men, Not Laws."

  • .||

    Except that much of it is neither necessary nor proper, but rather the oposite, jerkwad.

  • MNG||

    I agree here. Too many people stretch the necessary and proper clause to incredible lengths these days. At most it only empowers government to do things implied for the necessary exercise of the enumerated powers.

  • mr simple||

    Wow. you have written a complete, semi-coherent sentence and yet it clearly shows you can't understand anything you read. Amazing.

  • MNG||

    I grant most of what you are saying, but I think "The Truth" agrees with you, he is saying these things as parody of a literalist interpretation of the Constitution.

    Even at the level you are talking about you run into problems if you are going to be ruled by the original expectations of what the language would do rather than what it actually reads. For example there is a fair amount of evidence that when people used the term "freedom of speech" they were referring to political speech and they would not have thought about it protecting other types of speech that, thankfully, we interpret it to apply to today.

  • ||

    You still run into the problem that the federal government has no power to regulate any kind of speech so it doesn't matter.

  • DLM||

    Even at the level you are talking about you run into problems if you are going to be ruled by the original expectations of what the language would do rather than what it actually reads.

    You need to go by what it says, but you also need to read it using the meaning of the language at the time of passage. Otherwise, all that's necessary to change the meaning of the document is to redefine the words making it effectiely meaningless anyway. There will always be gray areas where the intent and explanations of those who passed it should be considered, just as the intent and explanations of previous court rulings are considered.

  • Michael Ejercito||

    The issue of whether or not this law is constitutional is admittedly a gray area.

    While Gonzales v. Raich has a broad interpretation of the interstate commerce clause, United States v. Lopez and United States v. Morrison places limits on the power to regulate commerce. There is no clear-cut precedent dispositive on this question one way or another, unlike due process or equal protection challenges against anti-polygamy laws.

  • Barely Supressed Rage||

    No SCOTUS precedent ever has authorized such an expansive reading of Congress's power to regulate commerce among the states. That's the issue. The government cannot point to any precedent that seals the deal for them. Even Wickard v. Fillburn addressed a situation in which the farmer was engaging in arguably commercial activity - or at least was engaging in an activity that could potentially affect commerce. It was a bullshit, result-oriented decision, but it at least had going for it the fact that the guy was DOING something.

    Here, they're trying to make you do something you were not otherwise doing. Compelling action versus imposing regulations upon activity already taking place.

  • MNG||

    Er, what he was doing was opting out of a market...

  • Vermont Gun Owner||

    He was growing wheat, which would be more analogous to setting up a bank account specifically to pay for your bills. Still not a perfect analogy, but better.

    As a side note: Wickard was a horrible ruling.

  • MNG||

    He was growing his own wheat rather than buy it in the interstate market. The ruling made him stop, he would have to buy his wheat in the market. It's pretty on point...

  • Vermont Gun Owner||

    But it wasn't forcing him to buy any wheat at all. It just wasn't letting him make his own.

    So it'd be like the feds preventing you from forming a HSA but not forcing you to buy insurance.

  • Gilbert Martin||

    No it isn't.

    He was actively doing SOMETHING.

    People not buying insurance are NOT doing SOMETHING.

    There is still a difference between activity and inactivity.

  • MNG||

    This is really what it comes down to. If you think about it the distinction between inactivity and activity is a cardinal axiom of libertarianism (harming someone through your actions is bad, letting harm come to someone via your inaction is ok and all that). For utilitarians like myself the distinction between action/inaction is fairly meaningless, if they result in the same consequence that's all that matters.

    Now our Founders were neither libertarians or utilitarians. I think that the word "regulate" which is the word they used can mean to make rules which proscribe and/or prescribe actions. You think that since what they can regulate is "commerce" that it must be already existing. How would you square that with Wickard? Yes he was doing something, but you can hardly call what he was doing "commerce."

  • Gilbert Martin||

    "If you think about it the distinction between inactivity and activity is a cardinal axiom of libertarianism "

    The distinction is based on the laws of physics.

    You are either doing something or you
    are not.

    "How would you square that with Wickard? Yes he was doing something, but you can hardly call what he was doing "commerce."

    That's easy - Wickard was wrong and an egregious case of judicial activisim.

  • Gilbert Martin||

    "For utilitarians like myself ..."

    You are not an utilitataran, you are an authoritarian.

    Utilitarianism merely describes a process for the most effective and efficient way of achieveing a particular outcome that had been chosen by other means. And those other means is strictly personal preference.

    You can devise a utilitarian method of trying to maximize everyone's health outcomes in the country.

    What you cannot do is use utilitarianism to prove that maximized health outcomes is a higher value outcome than other alternatives.

  • DLM||

    Yes he was doing something, but you can hardly call what he was doing "commerce."

    What *can't* the government regulate?

  • Michael Ejercito||

    Of course, this does beg the question on why advocates of this sort of law do not try to get it enacted on a state-by-state basis. Surely there are no Article I concerns on states passing laws identical to this one.

  • Vermont Gun Owner||

    But then some hillbilly state might not do it. Someone thousands of miles away might not have the same set of values as me. They'll be doing it differently than me!

  • Mensan||

    Begging the question? How so? Your statement is incoherent.

  • Fatty Bolger||

    Because they know it will bankrupt the states that adopt it, and destroy their insurance industries, while leaving the ones that don't in much better shape - leading eventually to repeal in the states that adopted it.

    No, an idea this bad can only be forced on the people one way - from the top down, on everybody, at once.

  • Michael Ejercito||

    Because they know it will bankrupt the states that adopt it, and destroy their insurance industries, while leaving the ones that don't in much better shape - leading eventually to repeal in the states that adopted it.


    How do you know that the supporters of this law know that it would bankrupt states that adopt it? You suggest that they know the law is bad and yet want it anyway (as opposed to believing this law would have a net benefit for society).

  • Vermont Gun Owner||

    The issue of whether or not this law is constitutional is admittedly a gray area.

    No it isn't. It's clearly unconstitutional. What is a gray area is whether it will allowed to stand by the SCOTUS, which is different.

  • Michael Ejercito||

    No it isn't. It's clearly unconstitutional. What is a gray area is whether it will allowed to stand by the SCOTUS, which is different.


    How does that idea fit with the Supreme Court ruling in Gonzales?

  • Vermont Gun Owner||

    The Gonzales case is irrelvant to what is actually constitutional. The ruling in Gonzales was clearly wrong: the law is unconstitutional, regarding something that is entirely intrastate. However, the ruling does affect what is practically going to be allowed.

  • Michael Ejercito||

    The Gonzales case is irrelvant to what is actually constitutional. The ruling in Gonzales was clearly wrong: the law is unconstitutional, regarding something that is entirely intrastate. However, the ruling does affect what is practically going to be allowed.


    Gonzales is binding precedent, just like Lopez and Morrison. Judge Vinson was bound to apply those three precedents to this case.

    Of course, none of those three precedents were dispositive, so I can not claim that Vinson had defied precedent (unlike a judge striking down bans on polygamy against a federal due process challenge despite the binding precedent of the Mormon anti-polygamy cases.)

  • Vermont Gun Owner||

    Gonzales is binding precedent

    Which is why I said this:

    However, the ruling does affect what is practically going to be allowed.

    Just because the courts issue a ruling that you can be thrown in jail for life with no trial for eating a transfat filled piece of fried chicken doesn't mean its constitutional.

  • prolefeed||

    A judge doing their job -- striking down any law that contains any unconstitutional provisions whatsoever, regardless of what any other court, including SCOTUS, ruled in a precedent-setting opinion -- is not activism. It is adhering to the oath of office taken.

    No judge seems to be doing that, but they ALL should.

  • MNG||

    See, I again wonder why The Truth is treated as a troll. I think it is a good point to question slavish worship of the Founders (the Founders themselves would have likely agreed). And I think an overly strict fixation on what the Founders "expected" about the laws they wrote leads to some absurd conclusions as well.

  • Old Mexican||

    Re: MNG,

    I think it is a good point to question slavish worship of the Founders (the Founders themselves would have likely agreed).


    It would be a good point if it was relevant.

    And I think an overly strict fixation on what the Founders "expected" about the laws they wrote leads to some absurd conclusions as well.


    Like... what?

  • MNG||

    It's relevant whenever we think the extent of a power or right in the Constitution is limited to how the Founders wrote about it being applied, or when we think the plain text of the provisions should be trumped by the Founder's "vision."

  • Fatty Bolger||

    Plain text is fine with me. Forcing me to buy something is not regulating commerce between the several states. Neither is telling me I can't grow wheat that won't leave the state.

  • Michael Ejercito||

    See, I again wonder why The Truth is treated as a troll. I think it is a good point to question slavish worship of the Founders (the Founders themselves would have likely agreed). And I think an overly strict fixation on what the Founders "expected" about the laws they wrote leads to some absurd conclusions as well.


    The Founder's opinions are relevant in interpreting laws that they created, like the Bill of Rights and the original Constitution.

    We do not cite the Founders' opinions in interpreting the Nineteenth Amendment, for example.

  • ||

    Vinson declined to block the law during the appeal phase.

    Wrong. He specifically discusses why he doesn't need to issue a separate injunction; namely, because it would be redundant. As determined by the Supreme Court, BTW, which has held that no injunction is needed when a law is struck down.

    "there is no interstate commerce in health insurance"

    Really? And here I thought Aetna, Blue Cross, etc., operated in more than one state...

    What does that have to do with anything?

    And, actually, if you buy health insurance from Blue Cross in Texas, you are buying it from a different company than if you bought it in Oklahoma. True fact. You cannot buy the same policy, from the same company, in more than one state. Texas Blue Cross does not sell policies outside of Texas. There are no insurance policies sold in interstate commerce.

    Are you getting this yet, MNG?


    He voided the law. It is now null and void. Exactly what is an injunction supposed to add to that.

  • Neu Mejican||

    He specifically discusses why he doesn't need to issue a separate injunction; namely, because it would be redundant.

    Yeah, finally found the time to read through the exact language. I tend to agree...his ruling, in essence, includes an injunction. I still don't think this rises to the "constitutional crisis" you elude to until the appeal process has taken its course.

  • MNG||

    So you are saying that there is no company called Aetna, instead there are 50 companies with the same name selling similar products in the respective states?

    Thats simply incorrect. Somebody here is missing something.

    You can buy stock in Aetna.

    Here is their CEO

    http://www.aetna.com/about-aet.....liams.html

    Here is what they say about themselves:

    "Were the first national, full-service health insurer to offer a consumer-directed health plan"

    "National presence:

    Aetna provides benefits through employers in all 50 states, with products and services targeted specifically to small, mid-sized and large multi-site national employers."

    http://www.aetna.com/about-aet.....facts.html

  • ||

    It's a little more complicated than that and the commerce clause is probably why. But I'll take you argument at face value for the moment. The commerce clause would then apply to actions regarding Aetna between the states. "between the states" is important language. If Alabama and New Mexico had a spat about Atena, then under the commerce clause, the feds have the authority to settle the dispute.

    Under no means does "between the states" means between the federal government and the citizenry. That would have to fall under something else other than the commerce clause.

  • MJ||

    "Aetna" is the brand name for products and services provided by one or more of the Aetna group of subsidiary companies. Please make a selection to view Aetna's name related to a state."

    I guess you you are having a problem grasping the relationship between the national parent corporation and the subsidiary corporations operating in each state. The overarching company called "Aetna" does not itself sell insurance (except possibly in the state it is incorporated in). The subsidary corporations incorporated in the states they operating in are the ones selling insurance.

  • Michael Ejercito||

    He voided the law. It is now null and void. Exactly what is an injunction supposed to add to that.


    To actually give force to the ruling.

    Vinson is not the Supreme Court, where his ruling binds all courts to agree that the law in question is unconstitutional. Indeed, other judges are free to conclude that this law is within Congress's Article I powers.

    At most, Vinson can only issue an injunction against the named defendants with respect to the named plaintiffs. The ruling only gets binding force outside of the specific parties if it is upheld upon appellate review.

  • Neu Mejican||

    Here, they're trying to make you do something you were not otherwise doing. Compelling action versus imposing regulations upon activity already taking place.

    This is the source of the disagreement. Those who feel the law is constitutional do not see this as compelling WHETHER or not you purchase your healthcare (you will, no matter what, it is argued). Those who support the law are regulating HOW that activity, which is already taking place, will happen.

    Now, it can certainly be argued that this is not about health CARE, but about health INSURANCE, in which case you argument is apt and cogent. But the discussion seems to center on whether or not a choice to buy your health care outside of the insurance system is commercial activity or not.

  • Old Mexican||

    Re: Neu Mejican,

    Those who support the law are regulating HOW that activity, which is already taking place, will happen.


    The mandate assumes there's NO activity happening, as it MAKES a person BUY something he or she has NOT BOUGHT YET. So your contention is wrong - we're not talking about something that ALREADY HAPPENS.

  • Neu Mejican||

    The mandate assumes there's NO activity happening, as it MAKES a person BUY something he or she has NOT BOUGHT YET. So your contention is wrong - we're not talking about something that ALREADY HAPPENS.

    This is incorrect. The mandate assumes that everyone is getting healthcare somehow. The mandate assumes that those without insurance are getting their health care outside the insurance system... requiring them to purchase their health care within that insurance system is what the mandate does. It regulates how they buy health care, not whether or not they buy health care.

    That is the premise, at least.

  • Old Mexican||

    Re: Neu Mejican,

    This is incorrect. The mandate assumes that everyone is getting healthcare somehow.


    You mean all the time, like getting air? Use your head, Neu. How can a mandate making you buy something be logically based on the premise that you already HAVE it? If the government is making you BUY IT, is because you HAVEN'T.

    The mandate assumes that those without insurance are getting their health care outside the insurance system...


    Which is assuming too much.


    It regulates how they buy health care, not whether or not they buy health care.


    No, you're misconstruing the situation, Neu. In order to regulate the HOW, it must HAPPEN FIRST. In this case, the government is MAKING IT HAPPEN, the 'how' be damned. You simply want to think one and the other are the same.

  • Neu Mejican||

    How can a mandate making you buy something be logically based on the premise that you already HAVE it?

    The mandate is making you buy health insurance, as a means for paying for the health care that you are assumed to be getting throughout your life. It is mandating that you spread (at least a portion of) your payments out over time as part of a shared risk pool rather than paying for them at the time of service.

    Which is assuming too much.

    As a general rule, nope. A pretty good assumption. Most people access health care services at some point. The exceptions are exceedingly rare.

    In order to regulate the HOW, it must HAPPEN FIRST.
    See assumption above. It is assumed that everyone access health care services at some point. It IS HAPPENING.

    In this case, the government is MAKING IT HAPPEN, the 'how' be damned.

    Nope. This requires you to conflate Health insurance and health care. They are distinct. The mandate requires the method (Insurance) of paying for the thing that you are already getting (the health care).

    You simply want to think one and the other are the same.

    I am simply talking about the logic behind the mandate. My wishes were for a much different reform of the system. It would have been all about HOW health insurance was structured and I don't think it would have included the mandate under discussion.

  • Vermont Gun Owner||

    You aren't getting health care when you don't buy insurance. Maybe (even likely) you will get health care in the future, but you aren't "already getting it."

  • Neu Mejican||

    Maybe (even likely) you will get health care in the future, but you aren't "already getting it."

    FTFY

  • Neu Mejican||

    VGO,

    See comment above about spreading out the payments and risk over time...this is about how that service will be paid for when it is provided. The regulation is about the method of cover that cost that is, yes, inevitable.

  • Neu Mejican||

    The distinction is based on the laws of physics.

    You are either doing something or you
    are not.

    The semantics of this are not as clear cut as you seem to think. And invoking physics just makes it worse. I challenge you to demonstrate the existence of some object that is "not doing something."

  • Dick Fitzwell||

    At this very moment, I am not setting myself on fire.

  • Gilbert Martin||

    "The semantics of this are not as clear cut as you seem to think"

    They most certainly are.

    "I challenge you to demonstrate the existence of some object that is "not doing something."

    The only "something" in question is not buying healthcare.

  • Neu Mejican||

    The only "something" in question is not buying healthcare.

    Indeed. And the position of the supporters of the law is that no individual will get through their life without doing this "something." The regulation of how that occurs is premised on the idea that the health care WILL BE purchased and that Congress has the ability to regulate, to some extent, the shape of that transaction.

  • Gilbert Martin||

    They have to wait UNTIL it actually occurs before the can regulate it.

    Furthemore, whenever someone DOES go buy some healthcare it may be commerce but it isn't interstate commerce.

    It isn't even interstate commerce if the patient crosses a state line to get to the doctor. Travel ins't commerce.

    In fact the ONLY thing that the federal government has ANY legitimate authority to regulate are transactions involving shipments of goods across state lines wherein title to the property legally passes from seller to buyer as part of the deal.

  • Neu Mejican||

    They have to wait UNTIL it actually occurs before the can regulate it.

    They do? I think that is one of the questions being considered.

    Furthemore, whenever someone DOES go buy some healthcare it may be commerce but it isn't interstate commerce.

    That is highly dependent upon the specific purchase.

    In fact the ONLY thing that the federal government has ANY legitimate authority to regulate are transactions involving shipments of goods across state lines wherein title to the property legally passes from seller to buyer as part of the deal.

    Nah. There is a lot of precedence that would say otherwise.

  • MNG||

    Let's say I have the power to "regulate" my kids activities.

    Does that mean I can only tell him how to do the things he will already being doing, or can I order him to engage in an activity (like wash the frigging dishes for Pete's sake)?

  • Dick Fitzwell||

    If they're your kids, you can do whatever you see fit to raise them however you would like.

    When they grow into adults are you still gonna try to regulate their (in)activities?

    Besides, the gov't is not Mommy and Daddy.

  • MNG||

    Wow, it took 3 seconds for the facile "Government ain't my daddy" line!

    Dude, it's an analogy.

  • Dick Fitzwell||

    I know. It's an awful one.

  • Michelle Obama||

    Besides, the gov't is not Mommy and Daddy.

    Just wait, baby.

  • Jay z||

    Worst. Analogy. Ever.

  • MNG||

    It's not supposed to analogize a parent to the government, but to demonstrate what "to regulate" means.

    The ordinary meaning of it includes prescrpitions as well as proscriptions.

  • DLM||

    The ordinary meaning of it includes prescrpitions as well as proscriptions.

    What matters is what the 'ordinary meaning' of it was at the time the constitution was passed, not what you prefer words to mean today. Many words have changed meanings of the decades. This can not be allowed to affect written contracts and agreements.

  • Dick Fitzwell||

    Yes, but it is quite telling that MNG thinks that the gov't should play a parental role and that all of us need to be told what do from day to day.

  • Tony||

    Interestingly, government does force parents to raise children, including purchasing many things to that end (food, clothes, vaccines, school supplies). If parents don't, they are locked up and the children are raised by the gov't.

  • ||

    """Let's say I have the power to "regulate" my kids activities.""

    You mean,

    to "regulate my kids activities".

    Whom can be regulated is part of the clause we are debating and must be part of your analogy for it to be a valid one. In this analogy, you would be right in that you can regulate your kids activities. But that doesn't give you the right to regulate your neighbor's kids activity becuase the clause specified whom.

    My point all along is that "citizen" is not a party listed in the clause therefore the feds can not require the "citizen" to buy anything under that specific clause. It should be real, real, easy to understand.

  • ||

    You want to regulate your kid you're going to want a taser as a 'short cut'. Only 3 and up though. The toddlers are our future after all.

  • Vermont Gun Owner||

    You are assuming regulate is the correct word for the parent-child relationship.

  • ||

    I still don't think this rises to the "constitutional crisis" you elude to until the appeal process has taken its course.

    Why not? What we have right now, as the law of the land, is a court decision. No court has stayed or overturned it. If its upheld on appeal, then what we will have is the exact same decision that we have now, only upheld on appeal. If Obama can ignore this decision now, what will have changed when other courts say that decision is fine by them?

    Would you be so nonchalant if President Cheney McChimpenhitler stated that he was going to continue to implement the Program to Protect America's Christianity Act (PPACA) by prosecuting any doctor who provides an abortion, and putting gay people in concentration camps?

    Because if you're cool with Obama openly and explicitly ignoring a court order to cease and desist, you must be cool with any President doing the same. Remember:

    Me today, you tomorrow.

  • Neu Mejican||

    Like I said...a bit too much hyperbole for me...your hypothetical doesn't help dissuade me that you are overreacting.

    Constitutional Crisis?
    Or just one of many procedural technicalities being worked out in due course as part of the everyday workings of government?

  • Vermont Gun Owner||

    It's currently been ruled unconstitutional by a federal court. If they continue to enforce it, they are openly violating their oath of office. I don't know if 'constitutional crisis' is the right word, but it's a big deal and should lead to an impeachment.

  • Michael Ejercito||

    It's currently been ruled unconstitutional by a federal court. If they continue to enforce it, they are openly violating their oath of office. I don't know if 'constitutional crisis' is the right word, but it's a big deal and should lead to an impeachment.


    By a district court that did not enjoin the defendants and where appellate review has yet to be exhausted.

    To be sure, if the defendants continue to enforce the law, plaintiffs can file a lawsuit, claiming that the defendants are bound by the declaration, and petition for an injunction.

  • Michael Ejercito||

    Would you be so nonchalant if President Cheney McChimpenhitler stated that he was going to continue to implement the Program to Protect America's Christianity Act (PPACA) by prosecuting any doctor who provides an abortion, and putting gay people in concentration camps?


    It depends on if there is a live injunction against the defendants.

  • Neu Mejican||

    If Obama can ignore this decision now, what will have changed when other courts say that decision is fine by them?

    The process will have reached its conclusion. At that point, if the executive ignored the courts, your "crisis" label would be appropriate.

  • sevo||

    R C Dean|2.2.11 @ 3:58PM|#
    "I still don't think this rises to the "constitutional crisis" you elude to until the appeal process has taken its course."
    "Why not? What we have right now, as the law of the land, is a court decision. No court has stayed or overturned it."

    Here's the way it was explained to me by an attorney who is no fan of Obama:
    Vinson issued a "declaration" which allows this sort of activity.
    He did not issue an "injunction" which has the legal effect of saying 'quit it, and quit it now!'
    So, under the law, the process can continue until further court decisions.

  • Vermont Gun Owner||

    Seem many previous posts. He didn't issue an injunction because his ruling states that would be irrelevant, as an unconstitutional law clearly can't be enforced.

  • Michael Ejercito||

    Seem many previous posts. He didn't issue an injunction because his ruling states that would be irrelevant, as an unconstitutional law clearly can't be enforced.


    So if the federal government decides to ignore his ruling....

  • Vermont Gun Owner||

    Then they should be impeached.

  • Michael Ejercito||

    Then they should be impeached.


    The judge did not specifically order the defendants to do anything?

    If I were a party in a lawsuit, the court can declare I have legal duties, but I am not bound by the declaration until the court issues an injunction.

    The binding force of a declaration comes from subsequent litigation, either in the same case or a different case.

  • ||

    In "The Right Kind of Activism", David Harsanyi says:

    Yet, today's liberals can't stop making a consequentialist argument (I heard that once on PBS) that refuses to separate what's "right" and how we get to what's right.

    My own analysis of this mindset is that "progressive liberals" (and they're not alone in this) generally feel blessed with a generous endowment of good intentions and common sense, which leads them to conclude that whatever policies they come up with must be fair and just. Eager to get on with the urgent business of fixing the wrongs in this world, they are understandably impatient with what they see as arbitrary obstacles thrown in their path by those pesky conservatives, Republicans, and libertarian free-marketeers. These include various notions of "liberty", "private property", "free enterprise", "states rights", "individual autonomy", "constitutionality", and so forth, which liberals often regard as thin disguises for selfish greed and oppression.

    My observation is that libertarians are fairly good at "preaching to the choir" (advocating their positions to those who are already receptive to them), but getting a progressive liberal to "drink the Kool-Aid" and pronounce it tasty requires considerable additional effort.

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