You Don’t Actually Have to Be Engaged In Commerce For Your Choices to Be Regulated Under the Commerce Clause

According to a federal judge in Virginia, ObamaCare’s individual mandate to purchase health insurance is constitutional under the Commerce Clause because, under precedents set by previous cases, “Congress has broad power to regulate purely local matters that have substantial economic effects, even where the regulated individuals claim not to participate in interstate commerce.” The ruling, which was released yesterday, dismissed an argument by Liberty University, a Christian school based in the state, that the law should be invalidated because, among other reasons, it unconstitutionally requires individuals to purchase health insurance.

The section of the decision dealing with the mandate leans heavily on the Supreme Court’s ruling in Gonzales v. Raich, a case in which the Court decided that, under the Commerce Clause, Congress could criminalize growing marijuana at home for personal use because failure to do so would upend a legitimate regulatory activity. Yesterday’s ruling by Judge Norman K. Moon quotes Raich to argue that Congress may regulate “purely intrastate activity that is not itself ‘commercial’...if it concludes that failure to regulate that class of activity would undercut the regulation of the interstate market in that commodity.”

What about the argument that refusing to purchase insurance is not activity, but inactivity, and therefore not within Congressional authority to regulate? Judge Moon didn’t buy that either. Cases in which the Supreme Court has ruled that Commerce Clause does not grant authority to regulate—like the 1990 case in which the Court invalidated a law criminalizing possession of a gun near a school—have dealt with attempts to regulate activities that were not highly commercial in nature or effect. The gun ban was not “an essential part of a larger regulation of economic activity,” and therefore not constitutionally justified.

But the ripple effects of a declining health insurance mean that, for the purposes of determining regulatory authority, it is a commercial activity with economic effects, and therefore Congress can regulate it. The focus here is on the “economic” part of the phrase “economic activity.”

All in all, it’s a tidy recipe for rapid regulatory expansion: If one sort of economic regulation is acceptable, then so are additional regulations required to make the initial regulation work.

More on the Commerce Clause and the individual mandate here and here

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  • ||

    According to a Virginia judge...

    According to a federal judge in Virginia...

  • Peter Suderman||

    Updated.

  • ||

    Seriously, don't even bother to ask your interns to proof anymore. Just pick like 5 commenters, and have them do it.

  • Old Mexican||

    According to a Virginia judge, ObamaCare's individual mandate to purchase health insurance is constitutional under the Commerce Clause because, under precedents set by previous cases, "Congress has broad power to regulate purely local matters that have substantial economic effects, even where the regulated individuals claim not to participate in interstate commerce."

    Pretty much this judge, who swore to defend the Constitution, practically says the enumerated limits of power in it (the very reason for having a Constitution in the first place) are meaningless - Congress can regulate ANYTHING, as ALL HUMAN ACTION has "substantial economic effects."

    This will obviously NOT fly with the current SCOTUS. Uh, maybe.

  • IceTrey||

    Even all human inaction.

  • Fuck!||

    Judge Pete Starks?

  • Montani Semper Liberi||

    USA 1776-2010. She will be missed.

  • Colonel_Angus||

    Oh come on now. There's like a month left of 2010. I really don't think we'll meet our decline before 2011.

  • Cruz||

    1776-1913 more like it.

  • Guest||

    It's the end of the 4th Republic

    #1 1776 - 1789
    #2 1789 - 1865
    #3 1865 - 1913
    #4 1913 - 2010

  • ||

    History is gonna be pretty interesting in a couple hundred years.

  • Barely Suppressed Rage||

    This nonsense must cease.

    The Constitution empowers Congress to "regulate commerce among the several states." It quite plainly does NOT authorize Congress to regulate "individual activity or inactivity which, when taken in the aggregate can or might have an effect upon" commerce.

    I don't see what's so fucking hard to comprehend about that.

    If Congress can do this, then it can do anything, and it clearly is not a government of limited, enumerated powers. The modern interpretation of the Commerce Clause, the Necessary and Proper Clause and the General Welfare Clause renders nearly every other provision of Article I, Section 8 moot and thus mere surplusage. This violates a fundamental rule of statutory construction; i.e., that every word, every provision of a statute is presumed to have been put there purposely and therefore have meaning and effect. A reading of the statute that would render a provision meaningless, moot or mere surplusage is rejected in favor of an equally plausible one that gives all provisions some force.

    It's as if the people who are in favor of this nonsense really don't care about the collateral affects of reaching the conclusion that Congress can do this. They desire the end so fiercely, the means to get there don't matter - even if it means destroying whatever flimsy bulwark might remain against unlimited Congressional power over every single aspect of every individual citizen's daily life.

  • The American Way||

    Even worse, Congress isn't even regulating anything - it's merely creating agencies staffed by unelected managers who will speciously decide what the regulations are and aren't.

    So Congress is essentially handing over most of its power to the other 2 branches because they're lazy.

    We can vote out bad representatives, but the TSA and Health Boards are forever.

  • theunknown||

    That could be another way of attack if Obama put in a clause that handed over power to an outside agency. At that point it is no longer congress regulating commerce.

  • unsatisfied||

    I would say that under the Constitution, Obama doesn't have the power to hand over power to ANYONE, much less an outside agency...

    but again, that would be assuming they CARE about the Constitution. Which we all know they give it the respect they would give a convenient roll of something to wipe themselves.

  • Cruz||

    Hence it's called the "Do whatever you want clause."

  • Fuck!||

    Hence it's called the "Do whatever you want Pete Starks clause."

  • ||

    I don't see what's so fucking hard to comprehend about that.

    You lack Judicial Enlightenment, so your lack of comprehension follows accordingly. Did you just raise your eyes from the floor while I addressed you, peasant?

  • theunknown||

    LOL...thanks I needed that.

  • ||

    It is not "as if" they don't care. They quite clearly do not care. Producers have to plan for the future, have to consider all possible outcomes to their actions. Parasites do not. Fleas do not stop to wonder if they will kill the dog by breading too much and sucking too much blood. Those who live day-to-day on government handouts don't think in the long run. They only care about how much can be given to them today, right now.

  • Old Mexican||

    Yesterday's ruling by Judge Norman K. Moon [unfortunate name, BTW] quotes Raich to argue that Congress may regulate "purely intrastate activity that is not itself 'commercial'...if it concludes that failure to regulate that class of activity would undercut the regulation of the interstate market in that commodity."

    A classic case of Begging the Question - why not regulate inside the states when not doing so undermines my interstate regulatory activities? Why have fences if they don't allow me to peek inside my neighbor's house? Why allow women to wear skirts or pants if they don't allow me to see their legs?

    By the way, this would clearly violate the 10th Amendment granting that all non-enumerated powers belong to the State and the People. If Congress can regulate interstate commerce as indicated in the Constitution, then it follows it CAN'T regulate INTRAstate commerce as the 10th Amendment TRUMPS any different construing of the Commerce Clause.

  • Barely Suppressed Rage||

    Oh, tee hee, my poor old deluded man. Your proposed curious construction of your - what was it? Oh yes - "constitution" - is so quaint. It's lovely, truly it is. Precious. It's always so ... interesting to see those who seem to want to cling to those cute little antiquarian notions and sensibilities out of some kind of nostalgic tradition. It always reminds me of those old doilies you used to see on armchairs. I mean, really, you know?

    Are you one of those people who also does Revolutionary War reenactments too?

  • Old Mexican||

    Re: Barely Suppressed Rage,

    Are you one of those people who also does Revolutionary War reenactments too?

    I'm knapping a few flints as we speak...

    :-)

  • ||

    Flints? Are we talking the American Revolution or the Bering Revolution?

  • Old Mexican||

    Re: Wylie,

    The percussion cap was invented after 1816...

  • ||

    Ah, the flintlock sort of flint. Can you tell I'm not into guns?

  • ||

    A Brown Bess with bayonett attached is one of the most beautiful things in the world. It looks like freedom.

  • ||

    Especially from the business end.

  • ||

    Really? Where I'm sitting, it looks like oppression...

    A Kentucky rifle otoh...

  • ||

    You're (we're) going to need more firepower OM.

  • Robert||

    The Raich decision was infuriating for the way it used the opposite effect of the statute's supposed purpose as the justif'n for its being Constitutional. That is, they said that allowing federally unregulated prod'n and home use of marijuana to undercut the scheme of interstate regul'n of marijuana sales -- but it undercut it only by decreasing the marijuana in interstate commerce, which was supposed to be the object of the statute being challenged!

    Why doesn't estoppel apply against arguments like theirs?

  • Warty||

    Let's have some Swift.

    "It is a maxim among these lawyers that whatever has been done before, may legally be done again: and therefore they take special care to record all the decisions formerly made against common justice, and the general reason of mankind. These, under the name of precedents, they produce as authorities to justify the most iniquitous opinions; and the judges never fail of directing accordingly."

  • Warty||

    And more Swift, which seems appropriate for the Wikileaks thing.

    "In the trial of persons accused for crimes against the state, the method is much more short and commendable: the judge first sends to sound the disposition of those in power, after which he can easily hang or save a criminal, strictly preserving all due forms of law."

  • ||

    thanks drug warriors. how about an interview with the repubs in congress about the scope of the commerce clause as defined in this ruling? then ask them their opinion on the scope of the commerce clause as defined in the raich decision. i can't wait for the two different answers.

  • ||

    D. Rugwar Rior (R-Tenn) "I say, these actvist judges are out of control, how can the dang blam gubmint tell my constintunts to buy sumtin they just dont want."

    Well Senator, what about the Raich decision?

    D. Rugwar Rior (R-Tenn) "Well we have to have rules regardin takin them pot pills. these druggies are just hippies wantin to bring down ol glory."

  • ||

    wantin to bring down ol glory

    If this is what Ole Glory stands for now then...

  • creech||

    Why don't these people understand that what is good for the goose is good for the gander? Do they want some future lopsided fundy congress declaring that everyone purchase a Bible because it will help the national Bible publishing
    industry? The need to guard these slippery slopes is now so great that the only thing that seems to matter in a presidential contest is whom the winner may get to appoint to the Supreme Court.

  • ||

    Allowing the fundies to force everyone to buy a bible works right into the progressives plan though.

  • mad libertarian guy||

    They'll bitch and moan, until they take power and pervert it even further.

    Utter proof that Team Red and Team Blue are all really just Team Purple. The only differences they ave are managerial philosophy.

  • Mr Lizard||

    Actually before they make us buy Bibles they'll probably dictate that every American buy a house, because not doing so causes considerable (negative)activity.

  • ||

    If by "buy a house" you mean "rent one from the Federal Government."

  • Ted||

    Her ruling shouldn't be that surprising. With the absurdity of Raich it basically allows Congress so much lee-way, it's nearly impossible to criticize a judge for ruling in favor of the individual mandate. Under Raich, it's perfectly plausible to argue this is constitutional. Now, I think the individual mandate is unconstitutional because I don't think Raich was decided correctly - but as a lower court judge she is suppose to respect Raich. Raich basically gave Congress unlimited power so long as they can establish that the inability to regulate intrastate commerce prevents there ability to effectively regulate interstate commerce. It's very difficult to argue that the interstate regulation of health care (e.g. federal exchanges, tax benefits and what not) isn't substantially affected by intrastate commerce in health care. Unfortunately, under Raich, this may very well be constitutional. Also Scalia basically proved in Raich what a self-serving political hack he was, since his opinion basically authorized unlimited federal power to regulate both economic and non-economic activity so long as it was shown to be required to effectively implement federal regulation.

    The best bet we have at this point is that the Supreme Court will refine Gonzales v. Raich (partially overturning it in fact) and amplify the ruling of U.S. v. Lopez. I think both are required to i) make this clearly unconstitutional and put clear limits on Congressional regulatory power and ii) restrict simple modifications of the law by Congress to implement the same thing after-the-fact (i.e. using tax credits rather than penalties to implement the individual mandate).

  • ||

    Ted's got it exactly right. Even Clarence Thomas in his dissent noted that the majority opinion in Raich basically gave the federal government carte blanche to regulate anything. The federal court judge is bound by that decision; it'll be up to the Supreme Court to right the ship.

    If only that chicken-shit drug warrior douchenozzle Scalia hadn't let his fear of teh Drugz cloud his judgment in Raich maybe he could have convinced Kennedy to switch votes as well and we could have avoided all this.

  • robc||

    The court could have said that this was more like Lopez and less like Raich.

    Of course O'Connor in her dissent in Raich said the two were identical.

  • smartass sob||

    What if SCOTUS declines to hear the case? That could happen, you know.

  • Virginia||

    Kennedy would have to reneg on his Raich majority vote and Scalia his concurrence.

    Unfortunately, the best we can expect is another weapons-grade dissent by Thomas.

  • Ted||

    You are forgetting that Scalia is a political hack. He may very well argue the individual mandate is unconstitutional, but find some non-sensical way to keep his Raich opinion valid.

  • robc||

    Scalia was on the other side in Lopez, so he could cite it.

  • Virginia||

    Yeah, that's expected. Too bad Kennedy is the swing vote.

  • ||

    I think we need to subject the supreme court to state nullification. If any decision of the supreme court is ruled unconstitutional by a 2/3 supermajority in a national referendum, it should be voided.

    -jcr

  • mad libertarian guy||

    Uh, no.

    Bad as the system can be, I actually do trusts the wise 9 to do the right thing before I trust TEH CONSENSUS.

  • ||

    If any supreme court ruling is overturned by 3/4 of state legislatures all judges assenting to the ruling shall be immediately subject to reconfirmation.

  • Barely Suppressed Rage||

    Note: the judge's name is Norman. Which leads me to suspect the judge is a he/him, not a she/her.

  • ||

    *inset appropriate SugarFree link about cisgenders or something*

  • SteveV||

    "Scalia basically proved in Raich what a self-serving political hack he was, since his opinion basically authorized unlimited federal power"

    I did not realize that Scalia possessed such unilateral power. And guess what? He doesn't. Why don't you look up who voted how in Raich?

  • Jerry||

    So what if a state mandates this inactivity. Does federal power then triumph state law?

  • Tony||

    Oh the fuck well. Without defending Obamacare, the only reason anyone should be against national healthcare is because you a) profit from the healthcare industrial status quo or b) are attached to a stupid free-market religion that makes unfounded claims about some future free-market paradise, but which in reality, conveniently, just defends the industrial status quo.

    Having a strict, fringe interpretation of the commerce clause isn't a sufficient reason.

  • Shorter Tony||

    "I'm an unprincipled dipshit. You should be an unprincipled dipshit, too!"

  • Even Shorter Tony||

    "Obey, you peasants!"

  • Shortest Tony||

    ARF!

  • Old Mexican||

    Re: Tony,

    the only reason anyone should be against national healthcare is because you a) profit from the healthcare industrial status quo or b) are attached to a stupid free-market religion[...]

    The inherent immorality of the coercive action of the government not being a consideration, in the mind of a Statist fuck.

    Having a strict, fringe interpretation of the commerce clause isn't a sufficient reason.

    For the Statist fuck, any "interpretation" of a founding document (written in plain English, thus not requiring any "interpretation") that is not on par with his ideology is construed as "fringe."

  • Tony||

    If government coercion is immoral, then the conversation must stop there. There is no such thing as government without coercion.

    By "fringe" I mean "completely contradicted by case law."

  • Repeat ||

    the cases from 1942 to 1995, the ones refined from 1995-2010, those from 1787-1937, or the cases from the still-debated broadening transition period between 1937-1941? Which fringe is which?

  • 0x90||

    Coercion is overly general, but you know very well what he meant. Let's see if you are willing to flesh out your reasoning a bit...

    Stiplulate that government force, in the case of its use in the defensive posture, is to be considered as being fully justified. Make a cogent argument to the effect that the same is also true regarding its employment in the offensive posture. Refrain from referencing any aspect of the Bush Doctrine in providing support for your position.

    Finally, employ your stated position in support of the contention that an individual may be positively forced, justifiably, into performing an action which he otherwise would not, and against his will.

  • Tony||

    I don't really think there's a meaningful difference. Is "drive on the right" a form of positive coercion? How about "don't rape that chick"? What if the guy really really wanted to? What about "pay x dollars in taxes"?

  • ||

    an individual may be positively forced, justifiably, into performing an action

    How about "don't rape that chick"?

    Huh?

  • Anonymous Coward||

    Are you seriously unable to differentiate between action and inaction?

  • ||

    Are you seriously unable to differentiate between action and inaction?

    AC, we clearly lack the sort of Zen wisdom that Tony possesses, otherwise we would understand that the whole is equal to the nothing and so 1 hand clapping can be heard in a forest even if no-one is around.

  • 0x90||

    Your first two examples hold absolutely no relevance. As I do not ascribe your obtuseness to ignorance, I leave it to you to work out the reasons why.

    As we are both aware of the existence and nature of existing taxes, I do not see how a simple observation of the status quo, which is an inherently transient measure, can be used to establish any kind of justification. Unless your argument was meant to be that all possible uses of taxing power are to considered, by virtue of their existence, justifiable. I doubt that this is the case.

    That you apparently choose to cast the issue in terms of its being a tax is an evasion, which does not alter the original question: on what grounds may a person be forced to act, and what acts may he be forced to perform? Or conversely, what classes of action may a person not be forced to perform, and on what basis?

  • seguin||

    Listen, you're not too hard to read, so let me just paraphrase everything you've ever said, and your rationale for it:

    "Anything is allowable so long as I agree with it, and I will find a way to justify it."

  • ||

    If government coercion is immoral, then the conversation must stop there.

    Does that mean that you're going to shut the fuck up?

    -jcr

  • ||

    winner

  • Old Mexican||

    Re: Tony,

    If government coercion is immoral, then the conversation must stop there. There is no such thing as government without coercion.

    You said it, baby!

    Yet for you, taxation is not theft (i.e. coercion.) How do you reconcile the two?

    Statist fuck.

  • Tony||

    So now theft = coercion?

    Theft is a specific thing. It means acquiring something that you are not entitled to. The treasury is not thieving from you by taking taxes. If you don't pay your taxes, you are thieving from the treasury.

    Government uses coercion in all sorts of ways that are generally deemed OK. Such as coercing you to go to jail if you kill someone.

  • ||

    So now theft = coercion?

    "Give me your money or I will hurt you" isn't coercive at all, HOW COULD I NOT SEE IT BEFORE>?!?!?!??!

  • ||

    that are generally deemed OK

    Hey, as long as 51% vote for it, then, well, FUCK THE MINORITY(-HALF). Bitches!!!

  • ||

    I've seen Tony hash out this argument at least 10 times already. In his mind, any form of government coercion is justified. Any resistance of said government coercion, however, is unjustified and must be punished.

    If I were you all, I'd let it go. He aint changin his mind.

  • Old Mexican||

    Re: Tony,

    By "fringe" I mean "completely contradicted by case law."

    Which is no different than saying "completely contradicted by what others say." You're not saying anything.

  • Tony||

    And by appealing to mystical eternal truths instead, you aren't saying anything either.

  • Fringe meaning...||

    the one from 1942 to 1995, the one refined from 1995-2010, or the one from 1787-1937, or the intermittent 1937-1941? Which fringe is which?

  • ||

    Seriously, I want you to read the following. I post here every once in a while, and usually enjoy the back and forth between people posting here.

    However, I have saved this just for you:

    FUCK YOU.

  • MNG||

    Tony
    I think there are certainly other reasons. I oppose it because I honestly think my insurance is going to be better under private management than under the government's. These are the people that have been "fixing" the highway to my workplace for three years now to no success. I'd rather not have them "fix" my insurance, which is quite good.

    If they want to extend medicare, fine. But I really don't want them to nationalize health insurance.

  • Shorter Tony||

    If you don't agree with me that inactivity actually constitutes activity, it means that you are literally a shill, or at least, an unwitting tool of the machine.

  • Jordan||

    I presume that you wouldn't bitch about a law outlawing abortion then? Hell, why are you bitching about attempts to prevent gay marriage? Both of those are perfectly justifiable under your interpretation of the Constitution.

  • Tony||

    Maybe, maybe not. If they are justifiable, I would simply have a policy preference on those issues and not pretend that my policy preferences are superior because of what I say the constitution does or does not permit. I've said it often: if the constitution doesn't permit national healthcare, then the constitution is flawed. It can be flawed. Luckily for me, I don't think it contains such a restriction.

  • ||

    Maybe, maybe not. If they are justifiable

    Well, you've stated your interpretation, so which is it?

    and not pretend that my policy preferences are superior because of what I say the constitution does or does not permit.

    No, you base the superiority of your policy choices on how dumb you think your opposition is. Much classier.

  • Tony||

    I think the constitution should be interpreted to protect abortion rights and the right to marriage equality.

    Whether it is is a basically arbitrary decision made by people who wear robes to work.

    And the superiority of my policy choices is in the fact that they maximize individual freedom.

  • ||

    And the superiority of my policy choices is in the fact that they maximize individual freedom.

    Maximizing Freedom by Enforcing Decisions.

    I'm off to Orwell's grave, start me another renewable power company, woo!

  • Jordan||

    I've said it often: if the constitution doesn't permit national healthcare, then the constitution is flawed. It can be flawed.

    That's why there's a process for amending it.

  • GMT II||

    "Luckily for me, I don't think."

    Damn Toni, I could not have said it any better.

  • Matt||

    if the constitution doesn't permit national healthcare, then the constitution is flawed.

    The constitution permits national health care (at least as it has been interpreted, see Medicaid and Medicare). The question is if it permits an individual mandate to purchase private health insurance. It's quite possible for an individual mandate to be unconstitutional while another method of getting the same effect is constitutional.

    An example of a constitutional method with the same impact would be: a national tax (probably on income); a tax credit for health insurance; the remaining revenue spent on health care. Each of those three things is constitutional (at least as the constitution has been interpreted). In effect, that would pretty much be the same thing as the individual mandate. However, they chose not to do it that way, probably because taxes are unpopular.

    If the health care law is overturned because the individual mandate is unconstitutional and due to the lack of severability clause, they could still constitutionally pass national health care. The only problem is that they lack the votes.

    Why does the difference between a mandate and a tax matter? Because if you can mandate purchases, you can also mandate other actions. What about a daily jog? More exercise would be healthier and save health care money. Or we could mandate that everyone must get a job and replace machines with people. Unemployed? It's off to the sewers to shovel [manure] for you. To fix Social Security, we could mandate that every woman have at least one child by age 30 (so that there are enough new Americans to pay for the old Americans).

    To go back to your drive on the right example, we don't mandate that people drive on the right. We mandate that people don't drive on the left. You can always choose not to drive. In the other examples, you can't choose not to participate.

  • Tony, translated||

    Oh the fuck well. While defending Obamacare, the only reason anyone should be for free enterprise is because a) profit and b) being attached to a stupid anti-free market religion that makes unfounded claims about some future Glorious Workers' Paradise, but which in reality, conveniently, has never worked and never WILL work, but we liberals will still keep plugging for it.

    Having a "the federal government can do whatever the fuck it wants" interpretation of the commerce clause IS a sufficient reason. Because I said so.

  • Barack Obama||

    You are always a loyal minion, Tony. The wife and I appreciate your hard work.

  • Billy!||

    The ridiculous ones are us. Must we continue to bring up the Commerce Clause when it has been successfully attacked for a century (or more)?

    It no longer exists, people. It just doesn't.

  • ||

    Any other parts of the foundation of our nation that don't apply? If I punch 3 more holes on my card, we get a free revolution.

  • Billy!||

    There are loads of clauses that no longer exist.
    Take the very first one after the preamble:
    "All legislative powers, herein granted, shall be vested in a Congress of the United States..."

    There are bazillions of laws written every year written by agencies, filled with unelected officials, which are never voted on by congress but are nonetheless are the law of the land and violation of which results in punishment.

    Whether this is right or wrong is up to you. But it's a goddam fact and denying it is just dumb.

  • Thom||

    Why not just amend the Constitution to say that the government can do whatever the hell it wants? It would cut through all this nonsense and also we would need fewer lawyers.

  • Thomas Friedman||

    Yes, yes, YES! Now here's someone who gets it. Nice name, bud.

  • Jeffersonian||

    It's the difference between spending the night with a lovely lady after an evening of dinner, wine and a show and spending the night with a lady after you've given her $500.

  • ||

    In other words, no difference???

  • ||

    Of course there is a difference. If you pay her $500 you are guaranteed to get F****d, but she might sober up during the show. If we keep it as it is, we can always hope that someone in a black robe will sober up and read the dammed words instead of what someone previously said about the words.

  • ||

    b-b-b-but, PRECEDENT!!!!

  • Kolohe||

    The section of the decision dealing with the mandate leans heavily on the Supreme Court’s ruling in Gonzales v. Raich,

    Thank you Justice Scalia!

  • Raich||

    In America, we're so full of shit that we not only don't admit we make mistakes, we proudly make our mistakes the law of the land just to prove they aren't mistakes.

  • Cruz||

    *falls down in worship*

  • ||

    if it concludes that failure to regulate that class of activity would undercut the regulation of the interstate market

    Failure to regulate; we all know where that leads.

    Chaos! Anarchy!

  • Somalia!!||

    And us!!

  • ||

    No love?

  • Anonymous Coward||

    we all know where that leads.

    How can it lead anywhere if the government hasn't built any ROADS there?

  • The Gobbler||

    A government that can force you to buy insurance, can force you to buy General Moters.

    Oh, wait...

  • ||

    Man up and die, people. Man up and die.

  • NoVAHockey||

    the AHA's brief is worth reading in its defense of the mandate. essentially they argue that health care is different from all other economic activity: "In health care, nearly everyone enters the market, regardless of whether they purchase insurance"

    http://www.aha.org/aha/content.....la-ACA.pdf

  • sevo||

    Pretty much the same could be said of food.

  • Ska||

    It's actually true with food. Not everyone seeks medical treatment.

  • ||

    Hey, plenty of people subsist on beer and cigarettes. Food, pfft.

  • ||

    Just like the Spanish Inquisition, nobody expects their joke handle.

  • Barely Suppressed Rage||

    I dunno, it kinda works.

  • ||

    I dunno, it kinda works.

    I didn't think about how the beer&cigs; diet results in dead people, so yeah, I guess it works. Anytime I re-use a joke handle unintentionally seems retarded of me though, so I still don't enjoy it.

  • ||

    In health care, nearly everyone enters the market, regardless of whether they purchase insurance

    So, they're arguing that because everyone enters the market for healthcare, they can and should be forced to enter the completely different market for health insurance?

    WTF?

  • Invisible Finger||

    Christian Scientists never enter the health care market. Who knew there would actually be a good use for those people someday?

  • ||

    Nearly everyone breaths the air, which is being polluted by fossile fuel cars, which should be replaced by electric cars. Sure the're expensive, but once we are all ORDERED by our MASTERS in Congress to purchase one, I am sure the cost will come down.

  • MNG||

    "The Constitution empowers Congress to "regulate commerce among the several states." It quite plainly does NOT authorize Congress to regulate "individual activity or inactivity which, when taken in the aggregate can or might have an effect upon" commerce."

    I'm afraid it is not so plain to me, and many others.

    The thinking is that you have a broadly worded grant of power (no limitations or qualifiers which the Founders have shown they knew how to use when they wanted). Combine with the idea that if non-directly interstate commerce did not fall under this grant it would gut the power that is uncontroversially granted (actual commerce crossing state lines) and viola.

    It it problematic? Sure. But those who can't see how a reasonable person could come to this conclusion are not trying, or hopelessly limited by their own ideological blinders.

  • ||

    Only if you redefine "regulate" as "total control." And "among the several states" as "every individual in any state even if nothing is being done on an interstate basis."

    So yes... if you willfully misread the entire thing, your understanding of it becomes very plain.

  • MNG||

    Are you saying it is unreasonable to read "regulate" to mean "to make rules about?" Or you think regulate should mean "to make rules about, but not so much, or not the ones I don't like?"

    I mean, who is engaging in a "willful misreading" there?

    The question is not "should we regulate in this way" it is "can such a rule reasonably fall under the power 'to regulate?'" Hell, I'd agree with you on the first question. The second, not so much.

  • Barely Suppressed Rage||

    Are you saying it is unreasonable to read "regulate" to mean "to make rules about?"

    To an extent, yes.

    The generally understood meanings of words change and evolve over time. So to understand what a document written over 200 years ago means, it is necessary to understand the generally understood meaning of the words used at the time it was written. The words convey the concept; the principles - which we today might use different words to convey, becuase our understanding of what those words mean is different than those who wrote them. See hermeneutics and etymology.

    The word "regulate" or "regulated" is used at least twice in the Constitution - giving Congress the power to "regulate" interstate commerce, and in the Second Amendment, referring to a "well-regulated" militia.

    At that time, "regulate" was not understood to mean "subject to a comprehensive scheme of control by rules imposed by a government agency." Indeed, such a thing would have horrified the Framers. Instead, "regulate" was understood as meaning "to make regular." Regular as in orderly and well-functioning.

    If you knew anything about what was going on in the U.S. at that time the convention met to revise the Articles of the Confederacy, and who the delegates were, you would know that the Constitution is ALL ABOUT COMMERCE. The states were becoming increasingly insular and balkanized, and were each printing their own money, refusing to honor the money of other states, refusing to enforce debts owed to non-residents, and engaging in economic protectionism. It was preventing orderly commerce among the states and leading to economic and commercial stagnation. The Framers were largely wealthy businessmen (and a few agrarians) who recognized the need to create a stronger federal government to remove those roadblocks to the flow of commerce among the states and allow people to freely engage in orderly commerce and MAKE MONEY.

    They needed this Congress to be able to make commerce regular, rather than having each state throw up its own rules and restrictions at the border. So hellz yeah, it was all about making sure commerce could flow freely among the states, and not about what went on inside the states - because, after all, the states were each sovereign and did not give up that power in agreeing to the Constitution - see the 10th Amendment.

  • MNG||

    Dude, you are hoisting yourself on your own petard.

    What could be a better example of making a form of commerce "regular" than to require everyone to participate in it?

    Besides, what proof do you have that at the time of the Founding the words "to regulate" did not entail "to make rules about?" This is a rule about a form of interstate commerce, health insurance, namely a rule that you must purchase it.

  • Barely Suppressed Rage||

    So now you're additionally demonstrating you don't know what a petard is.

    Anyhow - again, the Framers - and everyone else politically involved at the time - would be horrified at the suggestion that the Interstate Commerce Clause empowered Congress to "require everyone to participate in" commerce.

    It did not and does not, in any way, empower Congress to CREATE or GENERATE commerce. To the extent that commerce exists, it authorizes Congress to make it regular - i.e., orderly.

    Having the power to make sure something is orderly and functioning is not the same as having the power to create that thing.

    Again, there is no historical support whatsoever, other than some soundly criticized 20th and 21st Century Supreme Court opinions, for the extremely broad and novel reading of the Commerce Clause that you propose.

  • MNG||

    "To the extent that commerce exists, it authorizes Congress to make it regular - i.e., orderly."

    Where is that language in the Clause? I only see a provision saying can regulate, i.e., make rules about. This is a rule about it.

    And it is interesting you think Congress by this law is "creating" interstate commerce in health insurance. I thought Aetna and all were in that business before this law...

  • Barely Suppressed Rage||

    Where does it say that regulate means "make rules about"?

    And in fact your argument is circular. Sure, Congress can "make rules" regarding commerce among the several states. (1) CONGRESS - not some executive agency - can make the rules. (2) the rules are limited to those "necessary and proper" to regulate "commerce" (3) "among the several states."

    Nothing about rules imposed upon individuals acting on their own, within a state.

    And of course Congress is creating commerce. If I choose not to buy any health insurance, I have chosen to REFRAIN FROM engaging in commerce. Congress comes along and says "if you do not engage in commerce, we're going to fine you." They're forcing me to spend my money and buy something I didn't want and would not have purchased otherwise. I.e., pretty damn clearly they're creating my individual activity which, in the aggregate, is commerce.

    You're really trying very hard to make complicated something that is pretty simple.

  • Barely Suppressed Rage||

    I.e., the question is not whether Congress can "make rules about" interstate commerce. The question is how far may those rules reach before they exceed Congress's legitimate power.

  • ||

    Perhaps something is being missed.

    "To regulate commerce with foreign nations, and among the several states, and with the Indian tribes;"

    I am not a foreign nation, state, or Indain tribe.

  • Invisible Finger||

    They're forcing me to spend my money and buy something I didn't want and would not have purchased otherwise

    Obamacare is very much a poll tax.

  • ||

    ---"And it is interesting you think Congress by this law is "creating" interstate commerce in health insurance. I thought Aetna and all were in that business before this law..."---

    You do know that you can't buy health insurance acrossed state lines, don't you? Aetna and all of the other insurance companies are not in "interstate" commerce and there is (to my knowledge) no provision in the Health Care Act to allow them to engage in interstate commerce.

    ---"I only see a provision saying can regulate, i.e., make rules about."---

    It is not difficult to determine what the Framers intended. I would, again, suggest that you read the books adverised on this website, particularly "The Debate About the Constitution". If you read that, you will come to a very good understanding of the intent of the Framers. Thousands of letters, articles & speeches were written at the time of Ratification that explain both (all) sides of the issue and what the different Enumerated Powers were for.

    Instead of arguing that what the Framers intended is unknowable or unclear, read what they meant in their own words. If you then still think that your interpretation is correct, then you are an idiot. that

  • ||

    Ignore the last "that"

  • ||

    I would, again, suggest that you read the books adverised on this website

    You want MNG to read a bunch of Kochsphemey? Cmon, C.

  • Anonymous Coward||

    What could be a better example of making a form of commerce "regular" than to require everyone to participate in it?

    Diabetics who don't engage in sugar commerce hate America?

  • Barely Suppressed Rage||

    The thinking is that you have a broadly worded grant of power (no limitations or qualifiers which the Founders have shown they knew how to use when they wanted).

    First, it seems that you are woefully unfamiliar with not only the Federalist, but also other contemporary writings discussing the nature and powers of the proposed federal government.

    In fact, there is a limitation and qualifier: the 10th Amendment. It makes quite clear that Congress has only those powers expressly granted, and no more. When the people of the United States ordained and established the Constitution for the United States of America, they yielded a specific measure of sovereignty to the federal government. But they yielded only that measure specified, and no more.

    The greature measure had to be arrogated by Congressional, executive and judicial fiat over the next two centuries.

    Combine with the idea that if non-directly interstate commerce did not fall under this grant it would gut the power that is uncontroversially granted (actual commerce crossing state lines) and viola.

    I see your viola and raise you a cello.

    It's pretty simple, really. A standard principle of statutory interpretation, recited in literally thousands of court cases at the state and federal level all over the country, is that a court will read the literal words of a statute and use their plain, commonly understood meaning. The law in question affords Congress authority to regulate "commerce among the several states." Period. It does not say "or other activities within the states or engaged in by individuals, which, in the aggregate, may have an effect on commerce among the states." Squint all you want, that language just isn't there.

    I can sense you reaching for the "necessary and proper" clause - but (with all due respect to John Marshall, who, although I am impressed with the man, was full of shit on this point) that does not get you there either. It allows Congress to enact such laws as are NECESSARY and "proper" to put into effect its specifically enumerated powers; not just those that would be convenient or expedient.

    A simple example:

    I hand you the keys to my car and say "you can use my car to go to the grocery store and back." While you're on your way to the grocery store, you notice that the car is just about to run out of gas, and you don't enough to make it to the grocery store and back. So you instead of the direct route to the store, you take a diversion and go to a gas station. Did I authorize you to go to the gas station? No. But it is necessary for you to be able to do what I did authorize you to do. If you don't go to the gas station, you will not physically be able to get the car to the grocery store and back. And it's "proper" that you should pay for gas that you are using in driving my car.

    Now let's say that while you're on your way home from the grocery store, you think, "gee, I really would like a nice bottle of wine to go with this food I just bought." So you take another diversion to the other side of town to your favorite wine shop. That trip is NOT necessary, nor is it proper. I did not authorize you to use my car to go to the wine shop - only to go to the grocery store and back. You are now operating outside your grant of authority, even though that side trip to the wine shop might be convenient. I know you really would like some wine with that food - and I might even like some too. But too bad - you don't have permission for that.

    Unless it is truly and genuinely NECESSARY for Congress to regulate some individual or intrastate activity (or lack thereof) and it is PROPER for Congress to do so in the legitimate exercise of its express power to regulate INTERstate commerce, Congress has no power to touch what goes on within the state or within your or my household, no matter how politically expedient or convenient it might be.

  • MNG||

    "It makes quite clear that Congress has only those powers expressly granted, and no more."

    Let's concede your point (though how, say, the "Necessary and Proper or Commander in Chief clauses "expressly" grant all the specific powers that are entailed therein escapes one). Fine, only expressly enumerated powers. And there is a list of those. It's the section the IC clause is found in...

    "It does not say "or other activities within the states or engaged in by individuals, which, in the aggregate, may have an effect on commerce among the states.""

    Correct. But if the idea is that this is implied, because otherwise the power expressly granted becomes useless, and, since you like legal canons of construction, the law supposes that statutes are not meaningless.

    You're discussion about necessary and proper is interesting, but I won't address it as it is not dispositive here: I claim the power does not come from that but from Article I Sec. 8, namely the IC clause itself.

  • Barely Suppressed Rage||

    Congress has no implied powers - or at the very least, to the extent you can imply some power to act, it must be consistent with an expressly enumerated power, and not contrary to any other provision of the Constitution. Your proposition runs afoul not only of the 10th Amendment, which expressly states that we are giving Congress only those powers expressly listed herein, but also of what THE PEOPLE WHO WROTE IT said about it.

    Again, you need to learn yourself some more history. I suggest starting with the Federalist.

  • MNG||

    See, my point is that the power to regulate commerce that in the aggregate affects IC is not inconsistent with the express grant to regulate IC commerce. Indeed my point is that it is not only consistent with it but that the provision becomes silly and meaningless without it.

  • Barely Suppressed Rage||

    Well then I guess we'll have to agree that you're simply wrong.

    Your proposition itself is silly. Of course you can regulate commerce among the states without having to regulate individual activities which, in the aggregate, might have some affect on interstate commerce.

    For what, the fifth time? I wholeheartedly recommend you read you some history - including some of the much earlier SCOTUS cases regarding the regulation of interstate commerce.

    This very question was a huge question in the 19th Century. And of course, it didn't take long for the SCOTUS to start fucking around with it.

  • Barely Suppressed Rage||

    For example, Congress can regulate the transportation of passengers for hire among the states - such as by imposing uniform safety standards and speed limits on buses and driver qualification requirements - without having to regulate how many pairs of underwear you may have in your suitcase when you travel by bus, or how many suitcases you carry, or how big those suitcases may be.

  • MNG||

    Now this is a telling example. WTF point do you think you are making here? If Congress can make rules about speed limits for the buses carrying inter-state workers why not how many suitcases the workers carry on the buses? You are questioning the wisdom of the regulations, not whether they fall under the power "to regulate."

    According to your reading the bus could drive right to the state line, the workers depart, walk two feet over the line and board another waiting bus to travel to the destination in that state and it could not be regulated because the actual "transportation" fell technically short of being "interstate."

    More to the point comprehensive regulatory schemes are going to be undercut by anything which in the aggregate substantially effects the things being regulated. Are you saying the power "to regulate" cannot be reasonably read to include comprehensive regulatory schemes?

  • MNG||

    Your appeal for me to read history is charming. Let's say you know the history and I don't. What would it prove? Would "reading history" show that reading "to regulate" to mean "to make rules" was an unreasonable reading? If you had some proof of that you'd be on to something.

  • Barely Suppressed Rage||

    I think that "regulate" should mean "paint pink."

  • MNG||

    Interesting. But what is important is what "to regulate" meant to the ratifiers. I've seen the word regulate refer both to the making of rules by government, and yes I've seen it used in terms of making rules to make orderly at the time of ratification. Nothing about paint pink though.

  • ||

    Clearly this is what "to regulate" meant to the framers and to current Congresspeoples. At least judging by the amount of taxes created by Congress, "regulate" would have to mean steal.

  • ||

    "regulate" would have to mean steal

    So, the hiphop definition then? "Yo, lets regulate on the fools."

  • seguin||

    REGULATORS...MOUNT UP!

    Regulator-Moderator War...it's ON!

  • Vermont Gun Owner||

    See, my point is that the power to regulate commerce that in the aggregate affects IC is not inconsistent with the express grant to regulate IC commerce


    Why does Congress need to force me to buy health insurance in order to make sure that New York doesn't pass a tariff on my use of their medical services?

  • ||

    Why does Congress need to force me to buy health insurance in order to make sure that New York doesn't pass a tariff on my use of their medical services?

    BECAUSE MNG SAID SO.

    What is so hard for you uneducated lowclass fucksticks to understand?!

  • James Madison||

    Yet it is very certain that it grew out of the abuse of the power by the importing States in taxing the nonimporting, and was intended as a negative and preventive provision against injustice among the States themselves, rather than as a power to be used for the positive purposes of the General Government, in which alone, however, the remedial power could be lodged.

    Is that clear enough for you?

  • MNG||

    James Madisons commentaries on the Founding are, and should not be taken as, dispositive on these kinds of issues. Many people worked to hammer out the resulting Constitution and their understandings and motivations behind any given provision were likely many. What matters is what the words they used reasonably meant at the time.

  • Barely Suppressed Rage||

    "Reasonbly meant"?

    You're awfully glib at discarding Madison. After all, he is known as - let's see, what did they call him? Oh yeah - the "Father of the Constitution" - i.e., the dude who was there for the whole damn mess and was responsible for reducing everything to writing. Who else do you propose we look to?

    Sure, they're not dispositive, but they're sure as hell strongly influential and persuasive.

  • MNG||

    What do you look to? Look at what the words commonly meant at the time. We can't know what exactly what the hundreds of ratifiers understood the words to mean exactly, but we can understand how the words were used at the time. And guess what? Regulate was used to refer to "making rules" at the time.

  • Montani Semper Liberi||

    A document written to limit the power of the federal government would include a clause that could be used to give the federal government nearly unfettered power. Yeah, that seems like reasonable.

  • Montani Semper Liberi||

    Also, if Madison's words are not enough for you, read the early Supreme Court decisions. Those were written by people who were contemporaries of the time the Constitution was written. If anyone had a grasp of what those words reasonably meant, they did, and they were in agreement with Madison.

  • Barely Suppressed Rage||

    See above as to what regulate meant.

    It most certainly did not have the connotation that evolved out of the New Deal Administration - that of myriad government agencies having delegated quasi-legislative, judicial and executive powers, enacting detailed rules controlling every detail and aspect of individual activities.

    In fact, much of the New Deal activities were challenged on those very grounds - i.e., that the Constitution never had been understood to allow Congress to delegate its legislative power in that way - and the Court kept striking down New Deal legislation until the famous "Switch in Time That Saved Nine." FDR put such immense political pressure on the SCOTUS that the justices caved to "save" the institution.

    Again, the notion of the Federal Register and the Code of Federal Regulations as they exist today would have horrified every one of the Founders.

  • MNG||

    OK history man, do you have any, any proof that at the time of ratification "to regulate" did not mean "to make rules about?" You keep making this claim, where's your proof? Remember, simply showing that people used the word to mean "to make orderly" doesn't show that it was not also understood to mean "to make rules."

    Also, notice you say it was used in the sense of "to make orderly., i.e., regular." You don't see that the "to make" part entails my meaning? How were they "to make" it regular? That's right, through rules, laws. They can pass laws to make it orderly, that order desired being established by Congress. Here we have Congress making a law to make interstate commerce in health insurance conform to their idea of orderly.

  • Barely Suppressed Rage||

    See above as to your circular and specious argument that regulate means "make rules."

    We're not arguing whether Congress can "make rules" regarding interstate commerce. The question is what those rules can require and how far they can go. The rule in question here goes well beyond "regulating" COMMERCE AMONG THE STATES.

    It is a rule telling me, you and every other individual American citizen that Congress is requiring us to engage in an economic activity that many of us might not otherwise choose to engage in. How the hell is that "regulating interstate commerce"? They're making rules that apply to people who specifically were NOT engaging in commerce at all, and requiring them to start engaging in commerce.

  • MNG||

    Of course a word's definition is going to seem circular to that word...WTF man?

    "How the hell is that "regulating interstate commerce"?"

    Because the decision to buy or not buy a product in interstate commerce is a crucial part of interstate commerce?

  • Barely Suppressed Rage||

    No, your argument is circular. "Congress has power to regulate interstate commerce; regulate means "to make rules;" therefore, Congress has the power to make rules about interstate commerce."

    OK, great. Congress has power to "make rules about" interstate commerce. That is not the question. The question is whether Congress has the power to "make rules" about interstate commerce. The question is whether a rule telling me I have to get up off my sofa and go buy something I otherwise would not have bought is a legitimate exercise of Congress's power to regulate "interstate commerce."

    I am sitting there, not engaging in ANY commerce at all, and Congress comes along and says, "Hey, get off your ass and go do some commerce."

    Where does the Constitution empower Congress to "make rules about" an individual person's "decision to buy or not to buy a product?"

    Again, your proposed reading of the Commerce Clause has never in the history of our country been endorsed by any court, anywhere - until this court decision. The simple fact is there is no - none, zero, zip, zilch, nada - no historical support for the argument that the Commerce Clause gives Congress the power to require me to buy something I don't want to buy.

  • MNG||

    I guess you don't have that proof then, eh? A shame because all this you've said rests on it...

  • Barely Suppressed Rage||

    P.S. - your argument as to how Congress can arrogate the power to do what you suggest is known as "bootstrapping."

  • ||

    Barely suppressed rage. You rock man. Enjoy the reasoning. Totally agree. Congress should have limited rule making ability. Oppressive law making is like porn. You know it when you see it. Real people are not fooled by what's going on. It's oppression regardless of how you pretty it up with fancy legal words.

  • James Madison||

    What matters is what the words they used reasonably meant at the time.

    And of course being that I was there does not give me any better incite to what those words meant than judges hundreds of years later.

  • James Madison||

    insight even. Still getting used to these newfangled computers.

  • MNG||

    Hey brain-child, other people that were there actually thought the Constitution would grant dangerous broad powers and worked to stop its ratification. In between were lots of different motivations and undertandings. One guy wrote down his. That hardly settles much.

  • Montani Semper Liberi||

    other people that were there actually thought the Constitution would grant dangerous broad powers and worked to stop its ratification

    Turns out they were right. I guess Madison didn't count on the lengths that the statists in government and their enablers such as yourself would go to to twist the meaning of what the Constitutional Convention agreed on.

  • MNG||

    I've said before, and above, that I oppose the mandate, so I don't know how I am the enabler. I just don't think it violates the Constitution. It's a political issue.

  • Barely Suppressed Rage||

    I just don't think it violates the Constitution.

    Well, we've identified the problem, then. You're wrong.

  • ||

    Props to you, sir, for keeping your rage even barely suppressed. At least Chad switches up his argument a little. MNG just says the same thing over and over thinking it sounds different. One of the sure signs of a crazy person...

  • Invisible Finger||

    What matters is what the words they used reasonably meant at the time.

    And since you don't like what they meant, you want to pretend that they meant something different that pleases you.

  • Old Mexican||

    Re: MNG,

    I'm afraid it is not so plain to me, and many others.

    Translation: The plain language does not jive with my ideology or that of my Statist fuck brethren.

    The thinking is that you have a broadly worded grant of power (no limitations or qualifiers which the Founders have shown they knew how to use when they wanted).

    Translation: I totally ignored, out of pure expediency, the rest of the text that enumerates the limited powers, subsequent to the clause.

    Combine with the idea that if non-directly interstate commerce did not fall under this grant it would gut the power that is uncontroversially granted

    Translation: I revel in question-begging like a happy pig in the muck.

    "Why have fences if they don't allow me to see what's behind them?"

    But those who can't see how a reasonable person could come to this conclusion are not trying, or hopelessly limited by their own ideological blinders.

    Translation: Those that don't agree with my interpretation are not being reasonable like me.

  • LOL||

    Everyday I think more and more the only answer will come from the muzzle of a gun.

  • ||

    Word.

  • MNG||

    What's funny is libertarians making this kind of argument. You know full well that not having non-directly or obviously interstate conduct fall under the grant of power will severely hamper federal regulation of obvious interstate commerce, in fact you are counting on it!

    One has to wonder why you care so much about it. Do you concede that states could do this if they wanted? You're just against the nature of the regulation period, man up and say that. Everything doesn't have to be a constitutional crisis. Some things are political. We've just elected a Congress that vows to get rid of this silly law, the process is working.

  • Jeffersonian||

    One has to wonder why you care so much about it. Do you concede that states could do this if they wanted?

    As far as the US Constitution goes, yes. It would depend on their individual constitutions whether they would have the power to do so within their own state borders.

  • Juice||

    Why did the every Supreme Court until the 1930s make the same kinds of arguments?

  • MNG||

    I dunno, why did Supreme Court justices before 1898 think Plessey v. Ferguson was correct?

  • Steve||

    They used wholecloth.

  • Barely Suppressed Rage||

    why did Supreme Court justices before 1898 think Plessey v. Ferguson was correct?

    (1) the question was not presented to them until then, so how do you know what they thought on that question?

    (2) not all of them did. See the excellent dissent of Justice Harlan.

  • Jordan||

    You're just against the nature of the regulation period, man up and say that.

    Yes, no honest person could believe that one single clause doesn't override the entire Constitution.

    We've just elected a Congress that vows to get rid of this silly law, the process is working.

    That's a mighty low bar. By that logic, any law is okay as long as it can be repealed.

  • ||

    I'll take the elimination of the law by any means necessary. I have much more confidence that 5 Justices will strike it down than I have Congress to get anything right. They are known for lying to get elected, as a rule...and they still have a Dem in the White House.

  • Juice||

    IANAL, but I'm trying to make sense of this decision in light of the McCarran–Ferguson Act.

  • IceTrey||

    In the case, New York vs United States, the SCOTUS held that the states are not required to carry out any federal regulatory mandate. If this holds for the states I don't see how any individual can be forced to carry out any such mandate.

    http://en.wikipedia.org/wiki/New_York_v._United_States

  • MNG||

    Jesus Christ, did you not get this the last time. The feds cannot make the states, the frigging state governments, carry out their regulatory schemes. They can certainly make laws that apply to all citizens in all the states.

    Jesus.

  • Barely Suppressed Rage||

    The problem with your arguments is that they are all very general and vague. E.g., "regulate means "make rules" and Congress can make rules about interstate commerce." And "Congress can make laws that apply to all citizens in the states."

    Those are very banal and platitudinous generalities that avoid the more specific question regarding the limit of Congress's power to make rules applicable to inviduals in the states. Sure Congress can make rules, but what can those rules make individual citizens do?

  • ||

    ""They can certainly make laws that apply to all citizens in all the states.""

    Where does it say it applies to citizens?

  • IceTrey||

    A regulatory mandate is not a law retard.

  • Dick Fitzwell||

    Ahhh!!! But the interstate commerce clause does not apply to citizens on an individual basis!

    "...the power to regulate commerce with foreign nations, among the several states, and with the Indian tribes."

    I always like to ask people whether they think the IC grants congress the power to regulate the commercial activities of citizens of foreign nations. Of course, I always get an answer like, "That's absurd!"

    To me, the reaction I get from asking that question points out how far people will fool themselves into thinking that they are not twisting and distorting the language to agree with their ideology. Of course, that's not to say that many are completely aware of what they're doing when they completely and purposefully misconstrue those words.

  • Winston Churhill||

    "They can certainly make laws that apply to all citizens in all the states."

    But NOT regarding all issues. That was the whole point of the Bill of Rights, to prevent the Federal Government from doing just that! It was to keep the Fed from being an arbitrary despotism. If the Commerce clause was intended to do that, then the Constitution would NOT have been ratified.

  • ||

    Those who think that Congress can impose a mandate to buy health insurance support a government of unlimited economic power.

    Its that simple. You can't construct a principled argument in favor of granting Congress this authority, that has any stopping place.

    So just fess up, MNG. You think the whole government of limited enumerated powers thing is hopelessly quaint, and the federal government should have unlimited power to direct the economic life of every person in the country.

  • MNG||

    "You can't construct a principled argument in favor of granting Congress this authority, that has any stopping place."

    It's already been done, in Lopez and Morrison.

    "Those who think that Congress can impose a mandate to buy health insurance support a government of unlimited economic power."

    Oh bull. I just don't think there is a constitutional remedy here.

  • ||

    But if there is no Constitutional remedy here in this grievance, why would there be any limits on Congress demanding we buy a certain kind of car (GM) or a certain style of house (green)?

    I don't like slippery-slope arguments because they admit there is little to no hope in things changing. But when it comes to government, that's completely true.

  • Turd Feruson||

    So then we are out the whims of those currently in power to decide every aspect of our life?

  • Jeffersonian||

    Personally, I think it's time for a Constitutional Amendment that clarifies the Commerce Clause and any other part of the Constitution that might make statists of all stripes think they have the power to do whatever they feel like.

  • ||

    Really, I would have expected you'd appreciate the 20 year rebellion method, albeit a tad late.

  • ||

    I think it's time for a Constitutional Amendment that clarifies the Commerce Clause

    Better yet, rescind the commerce clause altogether, and replace it with a simple prohibition of trade barriers between the states.

    -jcr

  • Cruz||

    The Lesson if History is that it never teaches anything. When the State sees no end to it's authority, that's when the end of the State is in sight. The death of the Dollar and the 'physics' of Economic Law will come full circle.

  • Turd Feruson||

    This is probably the best way to look at it. A total power grab is inevitable for any government. This is just one more step along the path from rise to fall.

  • Amendment IX||

    The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

  • Amendment X||

    The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

  • ||

    The commerce clause was never meant to apply at the citizen level. Nothing in it can be misconstrued to mean so, it's very clear about to whom it applies.

  • ||

    So, it's OK to regulate inactivity as long as there is a reasonable expectation that an individual will enter the market at some point, and by not entering the market it creates additional costs for those already in the market?
    Well there you have it folks, finally a way to reduce federal spending. All congress has to do is pass a law requiring women to get married at the age of 18. Think about it, 25% of children living in a single parent household live in poverty. If there were an individual marriage mandate, poof, no more kids living in poverty. That would reduce poverty programs, SCHIP, welfare, food stamps and other social programs for the poor.
    You may be asking, what if I don't want children or plan to wait to have children? Well, you may not enter the human reproduction market at 18, but there is a very high likely hood that you will at some point in your life time. A marriage mandate is necessary because we don't want any free riders passing along the cost of raising children to the rest of society, that just wouldn't be fair.
    Of course this is a ridiculous idea. You could argue that any decision a person makes has a cost on society. People with out health care you get treated at the ER pushes up the price of my insurance, that's bad, but if the price of my insurance goes up because insurance companies have to cover everyone at the same rate and tax payers are going to subsidize people up to 4 times the poverty rate, well that's ok.

  • ||

    I think this is kind of funny. This opinion seem to be a logical (in the legal, Kafkaesque meaning of the word) consequence of Raich.

    It is going to be interesting to see if those idiots at SCOTUS are going to limit the scope of Raich, and if they do, what sort of warped sort of reasoning they are gonna use.

  • ||

    and if they do, what sort of warped sort of reasoning they are gonna use.

    TEH CHILDRENS!!! (hey, it works for everything else. of course, ensuring liberty actually DOES benefit Teh Childrens, so, ummm, i dunno.)

  • Anonymous Coward||

    [The Congress shall have Power] To regulate Commerce with foreign Nations, and among the several States, and with the Indian tribes; If the Constitution had included "among the People", the judge's argument might make an ounce of sense. But the People and the State are not one in the same, so we can safely stick this one in the authoritarian bullshit pile.

  • ||

    But the People and the State are not one in the same

    MNG, Friedman, Krugnutz, and the All Powerful Messiah Obama, would beg to disagree. If they had to beg. They don't. Sucks to be us.

  • theunknown||

    exactly, when you use the word state or nation it implies it can regulate any trade between those entities but the only way they those entities can establish trade is by the govts themselves so the power to regulate commerce is really the power to establish trade agreements between those political entities themselves. That includes the trade laws of those states that effect trade with other states. Its really the power to write trade agreements between states that congress has and not the power to determine what individuals can trade.

  • mad libertarian guy||

    Inaction is action
    Black is white
    War is peace

    and all that

  • ||

    Is the individual mandate, which directs a move from inactivity to activity, essentially conscription? Is it really some form of taking?

  • ||

    Economic activity. Economics is about greed, and is essentially about time. Inactivity is the ultimate time saving! by refusing to participate in the costs! and subsidizing another person's greed. Damn, I guess that means we'll all need mandatory bordello memberhips to facilitate the interstate commerce in prostitution all ready indulged in by Nevada; inactivity is a health hazard.

  • Shervin||

    The ruling was a joke. The argument is that by not buying health insurance an individual was actually engaging in an economic "activity" since at some point in time, everybody needs health care. To use this logic, if you refuse to buy a car today, the government can fine you and put you in jail because at some point everybody would require motorized transportation. Hey the US owns a big chunk of GM. If you don't have a car, you ought buy a GM car or the government is going to fine you. Ridiculous argument!

  • Jack Davis||

    "It ain't over until the Supremes sing."

  • ||

    Does anyone really believe what Obama said - each family will save $2,500 a year on health insurance? If you do then I've got a timeshare in Orlando to sell you.

    Obamacare is NOT health care insurance - it is health care welfare - there is a big difference and if you don't know the difference between insurance and welfare you've been on the public dole far too long.

    Obamacare is doomed to failure and will be the final card that topples the Obama White House of cards......

  • ||

    If the mandate is not, as the Judge declared, a tax, then it is compulsory service, involuntary servitude which says that I must work for a certain part of each day to buy my freedom to exist. The 13th Amendment states: Section 1. Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction. The federal government is required to eliminate involuntary servitude, not require it.

  • ||

    There is a rather profound danger when a judge so tortures the constitution to create federal authority where none exists. The danger that the common people will simply refuse to accept the authority of the courts.

    Our legal system works because in the main we all accept that most of the time it functions as a disinterested arbiter of disputes. This health insurance legislation reaches directly into the lives of individual people. Opposed by a significant majority, it has a visible and negative impact on the 85% of people who had and liked their insurance program.

    No amount of legal legerdemain is going to convince the common man that the federal government has the constitutional power to force individuals to purchase something or pay a fine, simply to have the right to breathe.

    Once the judiciary loses the respect of the majority and its decisions gravely impact their lives, chaos is inevitable. Time for a return to common sense. Past time.

  • ||

    Why take this lying down. Come 2014, if Obambi has a second term, simply encourage several million people to ignore the mandate, The collapse of Obambi care would be sure to follow. Think of it as modern day version of the colonial revolt against the Stamp Act and the Townsend Act back in the 1760s before the Revolution. People, if it's that important, don't be so tepidly legal. Encourage massive civil disobedience!

  • ||

    Could there be a better example of the clear meaning of our Constitution being utterly perverted by the courts? Our country is lost if we can't roll back some of these disgraceful "precedents".

  • ||

    This will be decided by the Supremes, but does anybody have any confidence that they'll get it right?

    Torches &pitchforks;, tar & feathers, lampposts & and rope. The new implements of hope and change.

  • ihp12||

    Defense said that the act of not buying insurance is an economic activity that congress has the power to regulate. By being uninsured, you will impose costs on others, because you're free emergency room care will be passed on to others via higher health care costs and/or higher taxes.

    However by that standard, it would be permissible for the government to mandate that I buy a used car. If I choose not to buy a car, I will be forced to take public transportation. Public transportation is subsidized by the government due to its un-profitable nature. Therefore my choice not to buy a car imposes costs on others to pay for my transportation via taxes.

  • ||

    Like :). Clear and simple.

  • Jeremy Janson||

    We need a new amendment. One that specifically undoes nonsense like Raich, and redefines the Commerce Clause more narrowly to assert that only Federal Government involvement for "commercial amity between state GOVERNMENTS" is allowed.

  • ||

    If this ruling is allowed to stand then Congress can do anything and we might as well just shred the document in the National Archives which has governed us for 223 years.

    For if this stands, the concept of limited government is dead.

  • ||

    Actually, it has been since about 1937. The Obama administration and his supporters in Congress have just pushed the bar further.

    http://constitutionalawareness.org/genwelf.html

    Unfortunately, due to a dependency culture/subculture many formerly conservative congressfolks have succumbed to the temptation to go along (to a degree). They don't want to be painted as mean-spirited and don't want take the time/effort to educate their constituency on the principles of limited government and the consequences of ignoring them. Furthermore, in some cases, they have little confidence that their constituency understand or appreciate those principles (not always an absurd notion), so they cave in out of "survival/expediency" reasons.

  • ||

    Man, with his imperfect nature cannot always count on the goodwill of all to protect himself or his fellow man from those who would steal from him the fruits of his labor and/or do harm to him. Furthermore, a man finds it sometimes useful to band together with like-minded folks to gain benefit in dealing with others. Thus, he enlists his fellow men in an endeavor called government. Such government is meant to be a reflection of their will and common needs and not meant to be controlling of them.

    The U.S. constitution reflected these notions. They respected the right of the individual, but allowed that there are just some things that are necessary for a federal government to manage or do. This was not meant as an impediment to individual liberty, but rather a realization of the limits of an individual. Should my family be injured or killed by an agent of a foreign country or terrorist group, I cannot personally declare war on that country or group and expect to succeed. However, the U.S. government, in the role of protecting its citizens can do just that feasibly. That role is clearly delineated in the constitution.

    As we know such protection isn't free. Hence a need to raise funds to provide for that protection. The role of taxing income/commerce of people is commonly accepted, grudgingly, and allowed for in the constitution to pay for that role.

    If you take the general welfare to its extreme you can pretty well justify any about any imposition of burden on the individual. The point of general welfare was a realization that there were things not yet known that would require a national vs. a state/local response and the founders wanted to allow some latitude in handling that.

    Healthcare has historically been the responsibility of the individual. People have historically seen it as the role of the individuals to ensure that their individual needs are met (food/shelter/health). Obviously, in an epidemic, there is a role for the government stepping in. But, short of that, it has been understood, even in the day of the founding fathers, that the individual was responsible for finding a way to meet his/her needs.

    Obviously, the federal government can coerce an individual to pay for national defense and things of that sort through income tax/tax on commerce.

    The argument that the government can coerce an individual to do for themselves what "they should do" is absurd and is the antithesis to freedom. If you go by that notion, then where do you stop. Consider this: I decide that I don't want to plant food in a garden in the backyard, yet the feds demand that those who have the means/location to do so to do so or face an additional (property) tax. They then say, well, we need everyone pitching in to ensure that the needs of the hungry/needy/less fortunate are met.

    They could say that this is for the general welfare as it is the best interest of our cities to have a healthy, productive populace.

    Exactly how is this any different? They are imposing that we "do the responsible thing" under threat of punishment. Who defines what is responsible?

    Yes, the feds can reasonable "coerce" individuals, but this was never meant to be all encompassing or to dictate that people engage in specified personal behavior should they choose not to.

  • ||

    Like :). Except for a couple of f'u here and there, this has been the most reasonable calm sensical dialogue I've read in a while. Totally agree with you Rich. How can anyone disagree with your reasoning? Just seems too easy to understand. Has the world gotten so big and complicated that our constitution has become archaic and irrelevant? I (hopefully much of the country) still believe in individual freedom and individual responsibility and the freedom to succeed and fail. This is what the constitution is about and what makes it relevant now and the next 200 years.

  • ||

    This should not be a surprise - this "judge" was a CLINTON APPOINTEE. I'll say it over and over again. There's no such thing as a "conservative" Democrat. They're all big government socialist/marxist.

  • ||

    It is much more a ruling that the constitution allows liberals to do whatever they want. Your thinking to hard on the legal justifications when really it's just judicial support for the current liberal progressive state.

  • ||

    creeve (sorry if I spelled it wrong) was correct. If the government can force you to buy "one thing" in particular, in this case health care insurance, they can force you to buy anything.
    What is to stop them from saying everybody has to buy a car from GM, or simply making the sale of any newly manufactured car other than a GM car illegal.

  • ||

    There is some similarity to the "Minimum Wage Law". The real problem is not the law itself, though it has been proven that increasing the minimum wage deters employment, but the legal precedent that is set.
    If Congress, or a state legislature can mandate a "minimum wage", they can also mandate a "maximum wage". Barack Obama has been quoted roughly saying "I mean, I do think at a certain point you’ve made enough money."

  • DDavis||

    I don't know why anyone is surprised. Clarence Thomas on Gonzalez v Raich:
    ###
    If the Federal Government can regulate growing a half-dozen cannabis plants for personal consumption (not because it is interstate commerce, but because it is inextricably bound up with interstate commerce), then Congress' Article I powers -- as expanded by the Necessary and Proper Clause -- have no meaningful limits.
    ...
    If the majority is to be taken seriously, the Federal Government may now regulate quilting bees, clothes drives, and potluck suppers throughout the 50 States.
    ###

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

    The choice to not engage in interstate commerce was a choice effecting net interstate commerce, and therefore subject to regulation. So you are subject to regulation if you do one of two things: fail to engage in interstate commerce; engage in interstate commerce.

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

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