What’s the Conservative Case for Upholding ObamaCare?

At the Volokh Conspiracy, George Washington law professor Orin Kerr has a very interesting post explaining why at least some conservatives would want the Supreme Court to uphold the Patient Protection and Affordable Care Act's individual mandate. As Kerr notes of his own legal views, while he does believe that “Supreme Court doctrine has erroneously permitted the federal government to become too big and play too intrusive a role in American society,” he is also “a Burkean conservative” who accepts the stabilizing role that precedent plays in our judicial system. Therefore he’s not at all convinced that the legal challenge to the health care law should succeed. Here’s a snippet of his argument:

I’m acutely aware of the Supreme Court’s long struggle to identify principled and workable limits on the scope of the Commerce Clause. History has shown that it’s surprisingly hard to do that, and that unprincipled or unstable lines don’t last and just destabilize the law for a short window before being rejected. My comfort with the Court striking down the mandate therefore varies considerably based on how the Court could do it. Let’s imagine, hypothetically, that the Supreme Court strikes down the mandate but does not identify any genuinely principled or workable doctrine to justify it. The Court’s decision merely reopens the hornet’s nest of line-drawing problems that the Court has long struggled with in the Commerce Clause setting, with the significant likelihood that in 20 years the Court will abandon its reasoning. In that case, the Burkean conservative part of me would be dismayed by the Court’s decision. Sure, the federalism guy side of me would be happy, but it would be outweighed by my Burkean objections.

Conservative legal activists have been carrying on versions of this debate for a long time. On the one hand there's the longstanding conservative case for judicial restraint and for letting democratic majorities have their way. That view says that the Supreme Court should defer to Congress and let President Obama’s signature legislative achievement stand (future lawmakers are of course free to repeal the law under this view). On the other hand, there are those—including Justice Clarence Thomas—who argue that the text of the Constitution (as they understand it) should always trump precedent, no matter what sort of destabilizing effects that may have on the legal system.

Chief Justice John Roberts arguably has a foot in each camp. He’s described himself as a believer in “judicial modesty,” an approach that gives heavy weight to both precedent and consensus. Yet as he argued in his Citizens United concurrence, sometimes precedents do deserve to die:

... if adherence to a precedent actually impedes the stable and orderly adjudication of future cases, its stare decisis effect is also diminished. This can happen in a number of circumstances, such as when the precedent’s validity is so hotly contested that it cannot reliably function as a basis for decision in future cases, when its rationale threatens to upend our settled jurisprudence in related areas of law, and when the precedent’s underlying reasoning has become so discredited that the Court cannot keep the precedent alive without jury-rigging new and different justifications to shore up the original mistake.

Setting aside the merits of these various approaches for the moment, what all of this tells us is that a solid Supreme Court majority against the health care law is no sure thing.

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  • SIV||

    On the other hand, there are those—including Justice Clarence Thomas—who argue that the text of the Constitution (as they understand it) should always trump precedent, no matter what sort of destabilizing effects that may have on the legal system.

    God Bless Clarence Thomas.

  • Almanian||

    Ditto

  • god||

    bless you.

  • ||

    Damn SIV, I just copied that very bit to paste here and say essentially the same thing. You beat me to it. Thomas is definitely my man on the court, and I guess you are in this thread.

  • Jeffersonian||

    Without a doubt, CT is the only justice within memory who "gets" it.

  • Colonel_Angus||

    Except when he doesn't.

  • MNG||

    That Clarence Thomas is the "most libertarian justice" on the SCOTUS is perhaps the dumbest of things in the world to hold.

    This is the same man who has opposed the right to privacy decision in Griswold and later ruled that the state can bar consensual sexual relations. This is the same man who holds that the Establishment Clause should not have been applied to the states (state churches and state organized prayer anyone?). This is the man who took the broadest view of any on the court of executive powers to indefinitely detain suspected "enemy combatants." With the exception of Kelo the man has been terrible on the 4th Amendment cases he has heard (just pick up any casebook on the subject and look through it), remember he's the guy who wrote a lone dissent supporting a school administrators strip search of a 13 year old girl who had aspirin.

    This is the kind of misinformed nonsense that discredits libertarianism. If Thomas is the most libertarian justice on the court then most people rightly don't want anything to do with that...

  • MNG||

    Should read "with the exception of Kylo"

    Cites for my claims:

    http://en.wikipedia.org/wiki/S.....ng_in_part

    http://en.wikipedia.org/wiki/H.....s_opinions

  • MNG||

  • MJ||

    "That Clarence Thomas is the "most libertarian justice" on the SCOTUS is perhaps the dumbest of things in the world to hold."

    That, of course, is a relative distinction. If not Thomas, who else on the Court is the most libertarian?

    Tell us, it should be worth a chuckle.

  • mr simple||

    Worrying about which justice is the most libertarian is a bit like worrying about which basketball team is the most libertarian: worthless. I think his point that none of them should be lionized stands; they all have their faults. We should support their decisions in favor of liberty and oppose those in favor of excessive authority.

  • MNG||

    "If not Thomas, who else on the Court is the most libertarian?"

    I dunno, but let's start with not the guy who would sanction laws against consensual sex and contraceptive use, broad executive powers to detain people, state led prayers and strip searches of 13 year old girls...

  • PR||

    I dunno

    I chuckled.

  • ||

    Libertarian != always cowtowing to the defendant

    There are lots of 4th amendment cases where the defendant deserves to lose.

    And you're just burning because Thomas was on the right side of Raich while your pal Stevens wrote the noxious majority opinion.

  • MNG||

    "Thomas was on the right side of Raich"

    Hell, so was O'Connor. You want to argue she was the most libertarian justice on the SCOTUS (actually, she was better on the 4th Amendment, executive detention, etc., so you probably could).

  • Brian E||

    How can it be that there's a right to privacy enshrined in unwritten words in the Constitution that's so broad as to override the government's role in protecting the lives of its citizens, yet so narrow that it doesn't even protect my ability to grow and eat the food of my own choosing on my own property? If Connecticut's contraception ban was unconstitutional, why don't I have a constitutional right to use medicine of my own choosing in the interest of my health, even if it hasn't been approved by the FDA?

    The penumbral right to privacy is a fiction. It doesn't exist except when it's convenient for it to exist to achieve a particular end. If the Constitution of your state or the federal government does not protect your sexual rights adequately, amend the constitution. Nobody is served by reading these rights into the Constitution while simultaneously extending the commerce clause into general federal police power over my own backyard. What the supreme court grants, it takes away with another stroke of the pen. All of us are served best by a court that attempts to follow the meaning of the text of the law as well as it can, as any deviations from this approach are likely to align with the interests of the government. Justices are selected based on their ability to be deferential to the government in the areas that the executive branch prioritizes; you will never find someone on the court who is willing to dispense with the meaning of the law yet always opposes expansion of government power.

    That's not to say I agree with Thomas's position on everything - in particular, he got it wrong on Safford v Redding (the logical conclusion of his line of thinking is that the fourth amendment rights of the parents of the student were being infringed) and on Hamdi v Rumsfeld (Scalia got that one right, constitutionally speaking). Where he's wrong, hold his feet to the fire, but do so for failing to live up to his own stated ideals, not for being unwilling to reach a desired outcome by reading what he wants to read into the constitution.

  • BakedPenguin||

  • Federal Dog||

    "With the exception of Kelo the man has been terrible on the 4th Amendment cases"

    Good lord. Kelo was a takings case, not a Fourth Amendment case.

  • SIV||

    MNG is a 'tard. He once tried to argue Oliver Wendell Holmes was a libertarian.

  • MNG||

    Holmes jurisprudence (based on what he thought was the proper role of a judge and the law) wasn't libertarian, his personal political philosophy was pretty close though. The two can be separate you know....

  • MNG||

    SIV don't like no fancy book learnin', but:

    "More importantly, Holmes, unlike Sumner was something of an anomaly when it came to sorting "conservatives"from "liberals. Throughout his career he displayed a pervasive skepticism toward governmental activism that often strained his relations with progressive reformers. "

  • MNG||

    MNG|1.21.12 @ 9:16AM|#
    Should read "with the exception of Kylo"

    Good lord indeed!

  • ||

    Reminds me of Potter's comment about not being able to define pornography but can recognize it when he sees it. If you can't define boundaries for the commerce clause but can find either a need for it or a violation (by the gov't) when you see it, then perhaps it would be prudent to interpret strictly, recognizing that 1) the basic intent of the clause was to restrict states from damaging each others econony and 2) the entire function of the Constitution if to act as alimiting agent on the power of gov't to interfere with the states and the people.

  • CE||

    But there's no need to "interpret" the Commerce Clause anymore. It covers everything now, including non-commerce.

  • Eduard van Haalen||

    Yes, go with Potter Stewart if you can't come up with a full definition complete with three-part tests.

    In the recent ministerial-exemption test they Court didn't give a full definition of when a church employee is a minister whose employment cannot regulated by the government. They said, in effect that they knew a minister when they saw one, and a teacher who is described as a minister and whose duties include instruction in religious doctrine *is* a minister.

    And making someone buy insurance on penalty of a fine is *not* interstate commerce, no matter what clever definition you have to use.

  • Edmund Burke||

    Yes, I am Edmund Burke and I fully support the *Wickard v. Fillburn* (sp?) precedent.

  • ...||

    It would take a classroom employee to assert a thing like that.

    Has he ever read Burke?

  • ||

    i gotta say wherever you come down on this debate, this is an excellent article, and it's refreshing to see some well written, fair, legal analysis. Volokh.com is probably my favorite website to read (and post on) because it does such a good job in that area. This article is worthy of note because it does so as well.

  • ||

    If they uphold Obamacare, then the Federal government can force us all to buy Chevy Volt's and make us all eat broccoli !!!!

  • ||

    With the government, 'can' means 'will'. Bet on it.

  • ||

    Shorter, Reason: "Conservatives have no identifiable principles that ultimately translate into small government."

  • CE||

    But they love authority, and a strong defense! Oh, wait....

  • o3||

    and a white male God...like Jesus's pictures...

  • Mr. FIFY||

    The answer is:

    There is no case for upholding ObamaCare.

  • Employer Healthcare Mandate||

    What?

  • Employer Healthcare Mandate||

    What?

  • Eduard van Haalen||

    If the logic of prior precedents lead to upholding Obamacare, then the "conservative" position is to approve Obamacare rather than reconsider the precedents?

    If that's conservative, I'm turning in my decoder ring.

    But considering how much stuff has been promoted in the name of conservatism, I'm not surprised. (eg, "True conservatives want to invade other countries and make them democratize!")

  • CE||

    It's called the "ratchet effect". Every time liberty slips away, conservatives want to conserve the new state of reduced liberty.

  • ||

    For about 80 years, it's been liberals conserving the reduction in liberty.

  • CE||

    For that matter, what's the conservative case for keeping federal spending at the current 3.8 trillion dollar level that Obama is ringing up for FY2011, instead of going back to say, FY2007, when spending was 2.7 trillion dollars?

  • mad libertarian guy||

    IRAN!!!!!

    derp.

  • ¢||

    How thoughtful. Just like Gingrich's "Burkean" rationalizations for his assholocratic reflexes are.

  • killazontherun||

    When I hear Burkean, I see a horse and buggy in my future. Or a Soviet era plow and tractor.

  • juris imprudent||

    That has more to do with an asshole claiming the label than anything Burke himself had to say.

  • Barack the Jaunty Farm Chief||

    You'll farm for Me and LIKE it, bitches.

  • killazontherun||

    Conor Cruise O'Brien most likely had a legitimate claim to Burke's mantel as a statesman and copacetic thinker, and that position is as far from libertarians and transhumanist as you will find.

  • Jerry||

    Or Mitt's flip-flopping.

  • ||

    This is kind of a strange exercise by Volokh. I mean, there is clearly a substantial basis for overturning the individual mandate: regulation of interstate commerce does not include the forced creation of interstate commerce, which is what the mandate purports to do. Every precedent for the federal government mandating economic activity under ICC involves a case where the activity is only mandated if you choose to do X, where X is something the feds could prohibit if they so chose. But X can't be merely "existing".

  • juris imprudent||

    Kerr is the most "establishment" voice on the subject there. The other conspirators tend to have a less favorable view on the constitutionality of the mandate.

  • protefeed||

    The Court’s decision merely reopens the hornet’s nest of line-drawing problems that the Court has long struggled with in the Commerce Clause setting

    Well, it's tough to draw a line that will stand up to scrutiny when you take a clause intended to LIMIT the power of government, and instead creatively interpret it to mean the government is empowered to do damn near anything it wants if you can work the word "commerce" into a sentence somehow.

  • ||

    If the commerce clause weren't there, the feds would have less power. So it doesn't "limit" power.

  • protefeed||

    Please reread what I said: "when you take a clause intended to LIMIT the power of government"

    note that the modifying words "the federal" do not appear in front of "government"

    the point of the commerce clause is to allow the federal government the very narrow power of preventing states from interfering with interstate commerce -- that is, it is the power to limit the power of other levels of government, which if actually used that way would only weaken the net powers of government at all levels and enhance individual rights.

    That is, the Commerce Clause means this when applied to interstate commerce: "In sum, according to the original meaning of the Commerce Clause, Congress has power to specify rules to govern the manner by which people may exchange or trade goods from one state to another, to remove obstructions to domestic trade erected by states ..."

    from this U. of Chicago Law Review article

  • ||

    Your quote doesn't support your argument.

    Congress has power to specify rules to govern the manner by which people may exchange or trade goods from one state to another

    This is a separate power from the power to "remove obstructions". Congress has the power to make its own rules about interstate commerce.

  • MJ||

    The Commerce Clause is not an open ended authority, it is acyually fairly limited as to what it empowers Congress to do.

  • ||

    If you're talking true free-market, libertarian-leaning conservatism, there is no case for Obamacare or any other socialized medicine. Unfortunately, most Republicans are just as pro-big government as liberals.

  • o3||

    insurance regs =/ socialized medicine

  • ||

    The text of the Constitution (as they understand it) should always trump precedent, no matter what sort of destabilizing effects that may have on the legal system.

    Can you imagine...?

    Yeah, sorry guys, but the abolition of slavery would be just too darn disruptive.

    That's basically the Burkean conservative side of the Dred Scott decision, isn't it? The Ken Shultz side goes, "Abolition of slavery too disruptive--too destablizing? So freakin' what?! Slavery is incompatible with a free society, so slavery's got to go...

    And I don't care if destabilizes the whole country and plunges us into civil war.

    Not that I see how establishing such a legal precedent--giving the courts yet another basis for upholding the freedom of individuals to choose whether to buy insurance for themselves--would be "destabilizing", necessarily. ...destabilizing to anything but Congress' ability to arbitrarily inflict it's will on individuals.

  • ||

    There's a balancing act. Treating every case as an opportunity to reinterpret the Constitution and the law from scratch would essentially give us a civil law system, with all the issues that arise in such systems.

  • ||

    What about the precedent of caving in to precedent instead of defending individual rights?

    I've said it before, and I'll say it again: Neither people nor their rights exist for society's convenience.

    Individual rights are extremely inconvenient things for society--and even more so for government.

    It would be so much more convenient for them if they could throw us in jail without a jury trial. Not being able to arbitrarily eminent domain somebody's property that they want? That's mighty inconvenient for them! ...but so what?

    There's nothing new about the tension between stability and freedom either. Oh no! What if Congress didn't have the authority to regulate whatever the hell we're doing? Would anarchy ensue?

    I doubt it. I suspect people would just get to make more choices for themselves rather than having more choices made for them by the president and Congress. Squashing our right to choose for ourselves whether we want to buy health insurance--in the name of stability--just isn't an argument I'm willing to give much credence to.

    But that's probably a big part of what makes me a libertarian.

  • ||

    This case has nothing to do with individual rights, it has to do with enumerated powers. There's no serious dispute that the Massachusetts insurance mandate was constitutional, so it's not a BoR issue.

    And in any case, there really isn't a precedent for this law at the federal level. So the accuracy vs. precedent discussion here really doesn't even apply.

  • ||

    This case has nothing to do with individual rights.

    The case against the individual mandate has nothing to do with individual rights--really!?

  • ||

    Regardless of any semantic ear-tickling you may enjoy, the opponents of the mandate in court have not made any individual rights argument.

    A power plant and a potted plant are not related to each other, despite containing the same word.

  • protefeed||

    There's no serious dispute that the Massachusetts insurance mandate was constitutional, so it's not a BoR issue.

    There's "no serious dispute" only if you are willing to pretend the Ninth Amendment doesn't really exist:

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

    The only reason that Amendment number 658 or so of the Bill of Rights wasn't written to read: "Congress or the states may not force individuals to buy insurance" was because the people who wrote that document couldn't wrap their head around the notion that at some point, some statists would actually think that states could foist such abominable violations of individual rights upon the citizenry.

  • Sevo||

    The confusion is constant enough I wonder if the BoR wasn't a mistake.
    Statists make the claim that the "right to do X" is nowhere mentioned in the Constitution. And they're right! Neither is the "right" to eat a hotdog at the ball park.
    To those who are ignorant of the purpose of the Constitution, the BoR "grants" rights to citizens rather than limits government intrusion in their lives.
    But, hey, they did their best and the sleazy statists have gamed it ever since.

  • ||

    I think it is in the Constitution. And that's why they stuck the 9th Amendment in there. The Federalists insisted on it because they didn't want posterity thinking that their rights originated from the Constitution or the government. It's there plainly in the 9th.

    I think that idea is reinforced elsewhere, too. The idea that the government can't alienate us from our rights is underscored by our right to a trial by a jury of our peers. "Of our peers" means specifically that they're not the government--that the government doesn't get to decide whether our right to liberty should be violated. A jury does!

    That's because our rights don't originate with the government. The government can't give us our rights, and the government can't take them away. It's just that average people have forgotten what all this stuff means.

    It's still there plain as day, though--it's our own standards that are eroding. And we're to blame for that.

  • ||

    They certainly didn't intend the 9th to be enforceable against the states when they ratified it. I'm not convinced they intended it to cause any rights to be enforced.

    I think the expansive view of the 9th as a sort of rights ATM is partly responsible for the trend toward the court ruling for what they think should be in the text rather than what is there. Because that's exactly what you're doing if you extract an enforceable right to privacy, or an enforceable right to anything else out of the 9th.

  • ||

    The only reason that Amendment number 658 or so of the Bill of Rights wasn't written to read: "Congress or the states may not force individuals to buy insurance"

    Nothing in the bill of rights was intended to apply to the states when it was ratified. I like how you insert "Congress or the states" in there, a phrase which appears nowhere in the real BoR.

    Some originalist you are.

  • protefeed||

    The reason that the Bill of Rights doesn't address limitations on the powers of states was because, once again, the Founders couldn't wrap their heads around the notion that in the future statists would take the weak states that existed in the late 1700s and morph them into entities considerably more powerful than they envisioned the federal government growing to in what they thought would be the worst case scenario.

    The Bill of Rights was a failure of imagination by men who thought they were being pessimists but who were in fact shockingly optimistic about where their initial minarchy would go.

    So, if they could somehow have gotten a week-long tour of the state of government as it is now, the Bill of Rights would have been hundreds of items describing in minute detail the rights that no level of government could infringe upon.

  • ||

    the weak states that existed in the late 1700s

    Now you're totally making shit up. Do you know why the Constitution was even written? The states were too powerful for their own good.

    While they were writing the First Amendment prohibition on the federal establishment of religion there were already states that had official churches, for God's sake. It's not like they simply couldn't imagine the states doing the things they were prohibiting the feds from doing...most of them already were!

  • ||

    There's no serious dispute that the Massachusetts insurance mandate was constitutional

    Of course their is. The fifth amendment prohibits depriving anyone of life, liberty or property without due course of law. Compelling someone to buy insurance from Mitt's cronies deprives them of liberty and property.

    -jcr

  • ||

    AAARGH! Change "their" to "there" above. I really need to get in the habit of hitting that preview button first.

    -jcr

  • ||

    So the state income tax and sales tax are also unconstitutional?

  • protefeed||

    Since the Constitution was explicitly amended to allow Congress to impose income taxes, it follows that states can impose them too.

    The broader point, though, is that if the Ninth Amendment was actually followed, there wouldn't need to BE any income taxes or sales taxes, because the scope of government would be so limited that it could be financed via fees voluntarily paid for government services rendered that one could decline to purchase.

  • ||

    So you're saying without the 16th amendment, states couldn't charge an income tax? Plus you don't address any other taxes, in particular sales taxes.

    the scope of government would be so limited that it could be financed via fees voluntarily paid for government services rendered that one could decline to purchase.

    It's almost as if you'd never heard of the free rider problem.

  • Lowdog||

    What if Congress didn't have the authority to regulate whatever the hell we're doing? Would anarchy ensue?

    I doubt it. I suspect people would just get to make more choices for themselves rather than having more choices made for them by the president and Congress. Squashing our right to choose for ourselves whether we want to buy health insurance--in the name of stability--just isn't an argument I'm willing to give much credence to.

    But that's probably a big part of what makes me a libertarian.

    Very well said, Ken...I may repost this to some of my less freedom-loving friends, if you don't mind, although I will replace "buy health insurance" with "do whatever we want that doesn't cause injury to our fellow man" or some such...

  • ||

    It's all yours!

  • Sevo||

    Tulpa|1.20.12 @ 8:01PM|#
    "There's a balancing act. Treating every case as an opportunity to reinterpret the Constitution and the law from scratch would essentially give us a civil law system, with all the issues that arise in such systems."

    OK, that's about as good a defense of Burkeian conservatism (re: court 'activism') as I've seen.
    But as you mention, it is a balancing act. Do you see the later denial of the Dred Scott decision or the possible denial of Obamacare as falling beyond that (preferred) balance?

  • ||

    Dred Scott was never overturned; the 13th amendment made it irrelevant going forward.

    There aren't really any precedents for the ICC being interpreted to allow government to coercively create interstate commerce, so the question of stare decisis really doesn't enter the Obamacare case at all.

    I'd say you should follow the precedent, when applicable, unless doing so would cause grievous harm. For instance, I wouldn't support overturning Social Security and Medicare even though they're probably not covered by ICC.

  • protefeed||

    I'd say you should follow the precedent, when applicable, unless doing so would cause grievous harm. For instance, I wouldn't support overturning Social Security and Medicare even though they're probably not covered by ICC.

    I say you should follow the Constitution in all instances, and strike down any law or interpretation that does violence to the plain wording, precedence be damned.

    Stare decisis should be limited to situations where two or more equally reasonable interpretations of the text of the Constitution are possible, in which case precedent should be followed. But, since the vast majority of SCOTUS decisions in at least the last hundred years violated the Constitution, stare decisis should not apply.

  • juris imprudent||

    ...a solid Supreme Court majority against the health care law is no sure thing.

    Which really shouldn't come as a surprise to anyone.

    I thought the case of Thomas Bean was a slam dunk - and it was, just not the way I expected. In that one, justice delayed was justice you have to wait for and may never see. And our dear Justice Thomas wrote the opinion of the court!

  • ||

    What’s the Conservative Case for Upholding ObamaCare?

    As a friend tells me, US politics is like a football field. The liberals keep moving the goalposts, and the conservatives keep defending their new positions.

    Like the Medicare before it, ObamaCare is rapidly on its way to being the new goalpost.

  • ||

    Conservatives will uphold Obamacare because they will need the "precedent" some day to justify stripping us of what few freedoms we may have left.

  • ||

    I'll bet they want to use it as the precedent to require mandatory tithes to whatever church they attend.

    -jcr

  • ||

    Sure, the gov't can force us to buy broccoli put money in the collection plate, but at least they can't force us to eat it actually attend church.

    Right? RIGHT?!?

  • o3||

    check's in the mail right?

  • MlR||

    A ridiculous argument even on its own convoluted terms.

    Burke celebrated organic organizations that had developed over centuries from the ground up.

    Not top-down policies dictated and machinated a few years, or even in some instances decades ago, over the will of that grass-roots.

  • squishua||

    the stabilizing role that precedent plays in our judicial system.


    Yeah, greasing the skids on a slippery slope really enhances "stability."

  • MJ||

    "The Court’s decision merely reopens the hornet’s nest of line-drawing problems that the Court has long struggled with in the Commerce Clause setting, with the significant likelihood that in 20 years the Court will abandon its reasoning."

    The "conservative" argument against overturning the individual mandate is that the Court MIGHT make a hash of the legal reasoning?

    I think I am pretty comfortable with taking that risk.

  • Maxxx||

    No,

    The conservative argument for not overturning Obamacare is that the insurance industry loves the individual mandate and will spread whatever cash is necessary to keep it.

  • cynical||

    Isn't the (poli sci) conservative defense of Obamacare that it is the status quo? Rolling it back is a job for reactionaries.

  • J Robert Giles||

    Gingrich seemed to blast the doubt stirred up by his ex-wife out of the ballpark last night, but was it staged? Read on, enjoy, spread the word!

    J Robert Giles

    http://jrobertgiles.blogspot.c.....ssion.html

  • .||

    Blog whore.

  • Sevo||

    OT political theater and the schadenfreude is too good to miss. Here's a start link, and there's others (you can find them):
    http://www.sfgate.com/cgi-bin/.....1MRPVJ.DTL
    Progressive (does it need the adjective?) San Fran Supervisor travels to Venezuela for, what, political conditioning? Knocks up local TV sweetie, and (to his credit) brings her to the US as a wife, along with offspring.
    Well, his credit isn't all that good; turns out he's a bit 'physical' in their discussions. And by the time this is clear, he's been elected Sheriff.
    So we have a Sheriff accused of spousal abuse, a wife who (if it doesn't work the way she hopes) could be deported to the Progressive paradise of Venezuela (and that seems not to her liking), and said Sheriff (law-enforcement officer, like it or not), spent this afternoon expressing support for the Occupy(X) group, as they were being arrested by the SF cops.
    I'm trying to find a good-guy in the mess, but it's tough.

  • fish||

    I'm trying to find a good-guy in the mess, but it's tough.

    Sevo you've already identified the "good guy"in this mess.....the mess itself!

  • ||

    I’m acutely aware of the Supreme Court’s long struggle to identify principled and workable limits on the scope of the Commerce Clause.

    That's a very peculiar way of saying "doing all they can to twist the plain language of the constitution into a general grant of absolute power".

    -jcr

  • ||

    I agree with the general sentiment - the commerce clause has been twisted to the point that it provides very few limits on congressional action.

    But I disagree with your "plain launguage" assertion. First of all, all language is interpreted. Second, the enumerated clauses are not really very clear. What, exactly, is meant by "commerce" as used in the clause?

    All interpretation is a line drawing exercisize, because the court has to (try) and draw a line lower courts can use to judge the myriad of other factual situations that will arise in cases.

    Its easy to sit back and nit pick and invoke the "aw shit, the constitution is as clear as day!" fallacy, but its another to try and draw a line.

  • rsi||

    Commerce: an interchange of goods or commodities.

    http://dictionary.reference.com/browse/commerce

    It's not difficult. Growing wheat you never sell is not inter-state commerce. Growing medical mj is not interstate commerce.

  • Nancy Pelosi||

    You're kidding. Surely you're kidding. Interstate commerce is what we say it is. I thought that you proles would have understood that by now.

  • o3||

    whoda thunk an elected body should also interpret the constitution?

  • ||

    You have to be careful about using 2011 definitions for text written in 1787. The word had a more expansive meaning back then.

    But on the whole your interpretation is probably correct.

  • rsi||

    Oh Dude,
    This is not the 1787 definition.

    http://dictionary.reference.com/browse/commerce

  • ||

    What a burk.

  • BakedPenguin||

    Limey!

  • entropy||

    The answer to the title is FOAD.

    FOAD, is the conservative case for Obamacare. There is no conservative case for Obamacare. If they both try that, we will riot.

  • Mark Alger||

    Rush Limbaugh has coined the name for Kerr's insistence that precedent should rule. He calls it style over substance.

    The Obamacare law -- with or without the individual mandate -- is a massive unconstitutional powergrab that should never have seen the light of day were members of Congress to honor their oaths of office. With the mandate, it's an affirmative affront to liberty. In the face of this, we are to believe that, because Congress has passed an unconstitutional law, we are to knuckle under to it for the sake of preserving precedent? No. No, a thousand times, NO!

    Better to upset a thousand proper precedents than to allow ONE affront to liberty to stand.

    M

  • ||

    Forget Brocolli, I have a better analogy... solar panels.

    If the government can make you buy health insurance as part of a scheme for regulating the health insurance market, can it make you buy solar panels, as part of a scheme for regulating the energy industry?

  • ||

    Obamacare will get repealed as soon as a republican is elected president. ;-)

  • J Robert Giles||

    You're going to hear a BUNCH of nonsense during tonight's State Of the Union Address. Here's a few predictions. Enjoy and spread the word!

    J Robert Giles

    http://jrobertgiles.blogspot.c.....decay.html

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