Supreme Court

"If you're talking about the regulation of economic activity, the presumption of constitutionality is for all practical purposes irrebuttable"

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Saturday's Wall Street Journal featured a great profile of libertarian Georgetown law professor Randy Barnett. There's lots of interesting stuff here, from Barnett's long battle to revive constitutional protections for economic liberty to his current fight against ObamaCare's individual mandate. A snippet:

"The challenges to ObamaCare are serious legal challenges within the existing doctrinal framework," Mr. Barnett says. "They are not an attempt to restore the lost Constitution."

That's why the "individual mandate"—the requirement that all Americans purchase medical insurance or pay a fine—has been the focus of the lawsuits by state attorneys general seeking to overturn ObamaCare. (Mr. Barnett wrote a friend-of-the-court brief with the Cato Institute, a libertarian think tank, in support of the Virginia attorney general's lawsuit.)

Such a mandate is unprecedented: "This is the first time in American history that Congress has claimed to use its power over interstate commerce to mandate, or require, that every person enter into a commercial relationship with a private company," Mr. Barnett notes. "As a judicial matter, it's also unprecedented. There's never been a court case which said Congress can do this."

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  1. I thought the administration had changed tacks and was now claiming it is a valid exercise of Congress’s taxing power, since SCOTUS has allowed Congress to tax things it otherwise has no power over under the Commerce Clause.

    1. Yep, this exactly

    2. Re: WTF,

      Making people buy stuff cannot be construed as “taxing” people. Hopefully, the SCOTUS will see this as the ever more ridiculous ploy compared to relying on Interstate Commerce to justify the mandate.

      1. Oh, I totally agree – either argument – commerce or taxing power – is horse shit. It’s just amazing how brazen this administration has been about it. Obama swore up and down when trying to sell this disaster that it was not in any way a tax. And now, as they’re trying to find a way to save it, they’re arguing up and down that yes, of course it’s a tax.

        Just more lies from the head liar in chief.

        1. Even if it is a “tax”, it would have to be considered a head tax or capitation. From what I’ve read about that it is unconstitutional.

  2. But… but… it’s just like car insurance! For driving your body!

    WTF — and according to some recent articles they’re going to have a huge problem with that tack if they try it, because the law was not written as a tax.

    Also, Obama himself repeatedly stated it was not a tax. Not that anyone believes anything that leftard says anymmore anyway.

    1. Re: TallDave,

      Also, Obama himself repeatedly stated it was not a tax. Not that anyone believes anything that leftard says anymmore anyway.

      The authoritarian left reply to the accusation that Obama may have been lying:

      You’re a racist!

      1. if no one reads a bill before they vote on it , does that mean it doesn’t count? as far as anyone knows, it could have been 60 monkies typing on 60 keyboards for 60 days…blah, blah, blah.

        1. Wow… monkies… you’re actually going to say that?

          Racist.

          1. Monkies are tiny monk fish. Very tasty.

            1. Fish are now a protected class.

              Racist.

            2. actually I was refering to the mock band the Monkee’s from the tv series of the same name (even though there were only 4…but yeah, still kinda racist in hindsight…should have writtens “morons”…

              1. (sigh) If you were refering to tailed primates, the word is spelled monkeys.

      2. That, and we have always been at war with East Asia.

    2. “Leftard”???

      That is highly oh-fensive. I am oh-fended.

      Racist.

  3. Congress has claimed to use its power over interstate commerce to mandate, or require, that every person enter into a commercial relationship with a private company,”

    Congress is going to fix this down the road, leaving this lawsuit moot.

    They will force every American into a relationship with the government, a relationship called Single Payer Healthcare.

    Problem solved.

    1. Shhh….

    2. this.

      sigh.

  4. While there are a few decent constitutional arguments against Obamacare, if the act is overturned by the court, it would be seen as a blatantly political power-grab. I don’t think that even the conservative members of the court want to be viewed that way.

    1. Eh. Obamacare itself is a blatantly political power grab. And 60% of LVs want it repealed anyway.

    2. How is it a power grab to *not* force someone to buy a product?

      1. “How is it a power grab to *not* force someone to buy a product?”

        to the typical lefty you, your rights, and your earnings all belong to the government by default. Only by our leaders’ benvolence do they allow people to keep some of the the government’s money and allow you some choices in life that normally would belong to the state.

        1. Only by our leaders’ benvolence do they allow people to keep some of the the government’s money

          You’re welcome. Giving to others, that’s what public service is all about.

          1. Well, I hope you keep a little for yourself while performing these altruistic redistributions– enough to retire at 50, at the very least. It’s only fair!

          2. “Giving to others…”

            And you are giving it to us good and hard.

    3. Re: Abdul,

      if the act is overturned by the court, it would be seen as a blatantly political power-grab.

      The job of the court is to look at the constitutionality of a federal law and overturn it if it violates the Constitution. How is that a powergrab, if that is the actual, constitutional function of the SCOTUS?

      1. His comment was that “it would be seen as a blatantly political power-grab.”

        I.e., the screaming mee-mee lefties would get their panties into an even tighter bunch than they perpetually are, and would cry about “judicial activism”, etc., and those horrible, right-wing, activist justices, grabbing more power for the court and striking down “the will of the people.”

        In other words, just the regular, revolting, business as usual daily fare we already get now.

        1. Thanks, WTF, but the courts generally don’t want to be in those types of fights.

          I would love to see the Court put a stop to Obamacare, except for the nasty, disingenous accusations of “judicial activism” that will come later.

          1. You mean like in Citizens United? Fuck the leftist crying and whining. They want to act like spoiled 3 year olds – they should be treated like spoiled 3 year olds.

  5. One thing that confuses some people is that states can force people to carry auto insurance. The difference is that limits on states (which have general police powers) and limits on the federal government (which does not) are entirely different.

    1. You don’t get it, ProL: see, if you have a car, they can force you to have auto insurance. Now, you have a body, don’t you? So they can force you to get body (health) insurance. See how easy it all is? Unless you’re a head in a jar Futurama-style.

      “Bodies are for hookers and fat people.”

      1. And I won’t get it until the guard knocks the only pair of glasses I have left from my face and grinds them to dust under his boot. Then, after that final indignity, will my reeducation be complete.

        1. (knocks ProL’s glasses off, smashes them)

          Now give me your lunch money.

          1. Dude, they executed you last week. The camp leaders were told to get rid of all the anarchists.

            1. I’m an anarchist ninja samurai, ProL. They couldn’t find me.

              1. I sobbed like a little girl at your execution, which was, to be fair, a work of art in the field of torture. I didn’t know until that day that Warty was a militant socialist and professional torturer.

          2. I wonder how often Obama did that when he was in school?

            And how come the Comedy Channel doesn’t have a cartoon called Lil’ Obama or a sitcom called That’s My Obama?

            1. That would be racist.

              Racist.

              1. It is racist for you to even think about how racist it is.

      2. Life, Liberty & the Pursuit ….doesn’t say anything about running your 1972 Nova down the highways of America…

    2. …and the fact that car ins. is generally required for liability, not collision/comprehensive purposes.

      Health care is more analogous to collision insurance – I get a dent/need my spleen removed, I get it fixed and insurance helps me pay the cost. But the state doesn’t require me to have collision ins on my veh (not sure if that’s the case for *all* states…believe it is).

      Unless we start allowing suits for spreading communicable diseases, in which case Medical Liablity Ins might make s….

      Shit. I’m sorry, I’m giving them ideas again….

      1. Full coverage is usually mandated on vehicles that have an outstanding loan out on them.

        So it makes sense if you consider, like the left does, that the government owns you and your labor. You don’t want the government to be cheated out of your utility to them by getting yourself hurt, do you?

        1. Full coverage is usually mandated by the bank that holds the note on vehicles that have an outstanding loan out on them.

          1. Until you pay off the note, the car still “belongs” to the loan company, that’s why it can mandate full coverage.

            I was going for a loan company/government, car/body, full coverage/Obamacare analogy.

            No states that I know of require full coverage.

            1. Ohhhhhhh… I get it now.

        2. I don’t think the state requires you to have full coverage on a vehicle with an outstanding loan. Any time I’ve been “mandated” to have full coverage, it was a requirement of the lender, not the gov’t.

        3. Full coverage is usually mandated on vehicles that have an outstanding loan out on them.

          Required by law or required by the lender as a condition of issuing the loan?

          1. It’s by the lender. His point is invalid.

        4. I hope this is a joke. Comp/Coll is “mandated” by the lien holder, not by government.

        5. That is one of the main reasons why the act of suicide is illegal – the state figures your ass belongs to them. And if you think you can’t be punished for suicide because you’d be dead, consider that the state can go after your heirs and your estate in many places.

      2. But it’s an established medical tradition that people get treated whether they can pay or not, so if you have an accident or a health issue you can’t pay for, either society lets you die the minute your cash runs out, or society picks up the tab. I prefer the latter, and therefore prefer a sensible administration of it over the haphazard system we’re accustomed to.

        1. But “a sensible administration of it” isn’t what we got with Obamacare. We got the same haphazard system, except the money will go to fewer companies that give more money to legislators.

          1. True, but Tony likes to make his arguments based upon the title of the bill, rather than it’s actual effects.

    3. The constitution doesn’t apply to the states… or something.

      1. Pretty much. The states can make laws about anything, as long as there is no specific conflict with the constitution. The Fed can only make laws in areas specifically defined by the constitution.

        1. The constitution pretty much only applies to the Fed. The states can do whatever they want.

          1. The 14th Amendment changes the situation with regard to the states, which now inherit some of the restrictions originally only imposed on the Federal government.

            Which ones? Good question.

            And now, class, if you’ll turn to page…

    4. The auto insurance “analogy” is totally inapt.

      First, there is a different between a state’s inherent power under what’s known as “the police power” versus Congress’s enumerated and limited powers under the Constitution.

      Second, there is no constitutional right to drive a car. Having insurance (or paying the state’s uninsured motorist fee) is part of the price of admission to operate a motor vehicle on the public roads.

      Congress is trying to make health insurance part of the price of admission for being a living citizen of the U.S.

    5. The states make people carry auto insurance as a condition of having the car licensed for use on public roads. Also, car insurance is not to insure you or your car, but the poor schmuck you run into and his vehicle. How car insurance correlates into having insure your body against the ravages of nature and time upon it is beyond me.

  6. if the act is overturned by the court, it would be seen as a blatantly political power-grab

    Some people might view it as a repudiation of a blatantly political power grab.

    1. It’s spelled refutiation, you betcha.

  7. Anyone who argues that “X” is just like your driver’s license/car registration/car insurance (see health insurance, gun laws, immigration rules…..) needs to be challenged. If you can’t make your case WITHOUT the flabby logic of the car analogy, then you don’t have much of a case.

    1. flabby logic? is that like fuzzy logic?

      1. He clealy meant flawsy logic, Dadiodaddy.

        1. well, that’s ok then.

    2. Mainer, just reply to those that try to use the auto insurance analogy that the 13th Amendment prohibits slavery.

      If they look puzzled, tell them that states mandate the purchase of auto insurance only for vehicles driven in public roads, which are owned by the state. The mandate to buy health insurance would then be construed as the state taking ownership of you, which is the same as slavery, which the 13th Amendmnet makes illegal.

      1. Ooh, I kinda like that too.

      2. Slavery is still legal for the federal government. See Selective Service.

        1. Slavery is still legal in general, it’s just limited by due process.

        2. But…but it’s an honor and a privilege to get one’s ass shot off in a war that others instigated and with which one may not agree.

  8. I’m thinking there’s a decent chance the opinion will go like this

    (1) The individual mandate was structured as a mandate, not a tax, and the law justifies it as an exercise of the commerce clause, not the taxing authority.

    (2) Using the IRS to collect the penalty for violating the mandate is an interesting choice, but does not convert what is otherwise not a tax, into a tax.

    (3) We do not reach the issue of whether this is a valid exercise of the taxing authority, because it is not before us.

    1. You fucker, that’s the out they were looking for!

    2. (3) We do not reach the issue of whether this is a valid exercise of the taxing authority, because it is not before us.

      Then goddamn it, someone needs to put it before them. If the penalty for disobeying the mandate is a fine based on a percentage of one’s taxable income or income tax owed – or in the case of zero, a bare minimum – then it is sure sounds like a tax to me. And if it’s a case of having to pay a bare minimum even if one has no taxable income or income tax liability, it is a head tax.

  9. “If you’re talking about the regulation of economic activity, the presumption of constitutionality is for all practical purposes irrebuttable”

    This statement gives me a very unpleasant feeling in the pit of my stomach.

    1. personally it burns my ass…

      1. Considering the depth of ass rape contemplated by the left, you are both correct.

  10. The most humorous part of the article (or the most depressing, depending on how you look at it) was the exchange between Taranto and Barnett at the end.

    “If I want to bet actual money, I’ll always bet the court upholds anything Congress does,” Mr. Barnett says.

    Therein lies the danger of constitutional litigation: If you lose, it is a lasting defeat for the principle on behalf of which you are arguing?something Mr. Barnett knows all too well from his experience in the Raich case. “My opening line in the Supreme Court . . . was: If this court upholds this extension of federal power, Gonzales v. Raich will replace Wickard v. Filburn as the outermost extension of federal power ever recognized by this court,” he says. “That’s kind of what happened, and I’m responsible for that. You know how badly that makes me feel?”

    I console him by pointing out that if the court upholds ObamaCare, he will no longer have that unwanted distinction. He responds by laughing, heartily if somewhat ruefully.

    In defense of Barnett’s argument in Gonzalez. vs. Raich Justice Thomas had this statement which I think should be inscribed in granite on the wall of the SCOTUS itself-

    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. Whether Congress aims at the possession of drugs, guns, or any number of other items, it may continue to “appropria[te] state police powers under the guise of regulating commerce.”

    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. This makes a mockery of Madison’s assurance to the people of New York that the “powers delegated” to the Federal Government are “few and defined”, while those of the States are “numerous and indefinite.”

    Thomas is all we have left.

    1. See, and this is why it pisses me off when the fucking lefties all rant and rave about what a right-wing tool Thomas is. He’s the only one who defended their right to grow their own MJ. And he did it not because he beleives in the individual right to grow pot; he did it because he understands the meaning of the Constitution, and whether or not it’s good public policy, Congress does not have the power to forbid you having a couple plants on your kitchen windowsill for your own use – even if those plants happen to be cannabis.

      But basing the argument on a fundamental legal principle, rather than an emotional argument that really is one of policy choice, is too much for many people’s puny critical thinking faculties.

      1. See, and this is why it pisses me off when the fucking lefties all rant and rave about what a right-wing tool Thomas is.

        Limiting the power of government is an exclusively right-wing activity.

        1. Limiting the power of government is an exclusively right-wing activity.

          Limiting the power of government is an exclusively non-existent dream.

      2. Where do you get the idea that most of the Left wants pot legal? Even if they do, where do you get the idea that the Left would accept an argument justifying the federal government being unable to regulate marijuana that logically undermines the federal government’s ability to regulate everything?

    2. Thomas does have some amazing descents. When the court does indeed uphold Obamacare, at least there will be the silver lining of being able to read another amazing Thomas opinion.

      1. Thomas does have some amazing descents.

        You keep using that word. I do not think it means what you think it means.

        1. yeah i know… its dessent.

        2. yeah i know… its dissent.

        3. yeah i know… its dissent.

          1. about the giant armadillo? about the giant armadillo? about the giant armadillo? about the giant armadillo? about the giant armadillo? about the giant armadillooooooooooooooooooooooooooooooo

      2. And when he’s not descending, he also does a very good job of dissenting.

        1. their the same thing for all intensive purposes.

          1. [sob] that was beyootiful

            1. It was nukular!

    3. Thomas fucking GETS it.

      1. And the liberals dont get it. They love using the words Thomas and Uncle Tom, idiot, stupid, ignorant in the same sentence. His liberal masters are incensed that he dares to thinks differently from them, and seeks to be treated equally to them.

        Frequent criticism is lodged at his lack of questioning. Thomas respond with the notion that he often finds the answer to any question within the thousands of submitted pages of briefs and previous decisions. Unlike other justices, Thomas is well-versed on the facts prior to oral arguments, and prefers they explore new ideas on the facts of the case. Preparation is stupidity in the crazy world of liberals.

        1. Liberals can’t trust anyone that isn’t at least half as narcissistic as they are.

  11. The constitution doesn’t apply to the states… or something.

    Not to Chicago, anyway.

    1. To be fair, Chicago is a People’s Republic, not a state.

  12. “If I want to bet actual money, I’ll always bet the court upholds anything Congress does,” Mr. Barnett says.

    Therein lies the danger of constitutional litigation: If you lose, it is a lasting defeat for the principle on behalf of which you are arguing

    This seems a good place to let you know that I just booked a trip to Panama to scope out real estate, and maybe a small business.

    I’d rather deal with the petty corruption of a developing country than live life as a tax mule for a totalitarian state.

    1. Need any IT people?

      1. Way too fucking hot in Panama.

  13. Panama? Seriously?

    Why not Chile, or Argentina? (I’m biased against jungles. And I ski.)

      1. And the steak tartare is to die for.

      2. Imagine how quickly they all would’ve died if they had been skinny little soccer players instead of beefy ruggers.

        Damn, that’s fucking tasteless. No more vicodin and cabernet for me.

    1. Panama, because:

      (1) The wife said so. (Seriously.)

      (2) We’re only looking in the highlands. Temps between 60 – 80 year round. Coffee farms, fruit trees, and (wait for it) monkeys! What’s not to like?

      (3) The Canal. You can get anything there, usually for a good price.

      (4) Its only moderately corrupt. And I can handle that. I’d rather slip a $20 to the local cops when I speed than pay 8x that amount and get my Permanent Record all icky.

      (5) Cost of living is still nice and easy.

      1. You make it sound so feasible. I’m very close to where you are RC, in terms of frustration with the complete downward spiral in terms our adherence to constitutional principles. It appears that Justice Thomas is the lone holdout left on the SCOTUS who truly attempts to uphold said principles. And this isn’t even close to enough to maintain a check on congress’s soon-to-be unlimited powers.

        Panama you say? I bet you can get great seafood down there.

      2. That actually sounds like a good idea.

        Damn education and career.

  14. We’re looking mosly in El Valle and Volcan. Props to a commenter here (can’t recall his handle) for steering me that way.

    1. Do they respect gun rights in Panama ?

    2. You can get a concealed carry permit there.

      There’s a limit on the number of guns per person/household, but it should be easily circumventable.

      Not sure what they have in terms of limits on the kinds of weaponry you can have.

  15. A person who is injured or ill is unhappy and an unhappy worker does not work, reducing the output of his or her employer which reduces their income which is subsequently taxed. The lost taxes weaken the nation. The strength of the nation is the happiness of its people!

  16. How can this not be considered a head tax? If the Brits can use civil disobedience to abolish it (ousting Thatcher in the process), then so can we. Granted, perhaps 20 years ago the Brits were less ovine than they are today.

  17. I think the idea of “interstate commerce” that Congress may regulate has been stretched to — even beyond — absurdity. Check out this article:

    http://broadcastengineering.co…..index.html

    Think about what is going on here. Transmitters are generators of electromagnetic waves. Except in very unusual circumstances (e.g., living next to a radio station and having bad tooth fillings) you need good instruments to even detect these waves, and you need a receiver to extract any intelligible signal from them. For most people, most of the time, these waves might as well not exist at all. Yet the Federal government labels as COMMERCE, the mere generation of these waves — indeed, as ILLEGAL commerce, unless you have the FCC’s prior permission to do so. It doesn’t matter if you have no customers or trading partners. It doesn’t matter if the emissions do not interfere with anyone else’s or otherwise affect other people. If you generate electromagnetic waves that fall within certain parameters defined by the government, you are — by definition — participating in commerce and subject to federal authority.

    Note that Senator Kerry is still saying that “our nation’s airwaves are finite resources.” First, there are no “airwaves,” there is only the universe, which has a so-far inexhaustible capacity for absorbing all of the electromagnetic energy humans can produce. Second, technology made these resources available in the first place, and has made more and more of them available with each passing year. There is no scarcity, and certainly not any that would provide sufficient justification for government regulatory authority.

    Except in the minds of poobahs such as Kerry, there is no scarcity, and the act of generating EM waves itself entails no commerce. How is the government’s regulation of the “airwaves” justified in ANY WAY? And whence does the government derive the authority to tax existing emitters, if the latter won’t stand aside and give other would-be emitters, who are currently in greater political favor, a turn?

  18. “It doesn’t matter if the emissions do not interfere with anyone else’s or otherwise affect other people.”

    Depending on where you are and on what area of the spectrum you’re broadcasting on, there’s no guarantee that you are not interfering with another’s broadcast. If the FCC has a legitimate function, it is certainly defining the borders of which operators have property rights over what parts of the spectrum in what areas (and those areas do cross state lines). We can quibble over whether or not the current FCC rules perform that function well, but the FCC should hve some legitimate authority in this regard.

    On the other what Kerry and crew are pushing in that bill seems to be completely wrongheaded.

    1. Kerry is a complete douche, and deserves to spend some quality time with Steve Smith.

    2. I disagree. If someone is interfering with your signal, take ’em to court, the same as you would if they were trespassing on your property (for example, dumping their trash on your land). You don’t need an FCC to settle claims, and you certainly don’t need an FCC to carve up the “airwaves” into discrete blocks and channels, as convenient as this “service” might have been for some in the past. The point of the FCC is not so much to serve the public, as to exercise federal ownership of the “airwaves” — in other words, to say who can have an EM generator and to specify the parameters of EM generation. What if this were print media? Then, the FCC would be saying who could have a press, and how much ink and newsprint publishers could use, so as to leave enough for everyone. (Excessive ink or newsprint consumption would constitute “interference” with other publishers.)

      A broadcast transmitter or web-server are presses for the current age. The government has no business restricting access to either, or restricting usage, unless, perhaps, one publisher’s use of his facilities actually interfere with another’s use of his own. The courts can handle that mission.

  19. As a judicial matter, it’s also unprecedented. There’s never been a court case which said Congress can do this.”

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