Constitutional Law

Individual Liberty and the Health Care Law

|

Washington Post editorial board member Charles Lane takes issue with Washington Post blogger Ezra Klein's breezy assertion that "whatever the legal argument about the individual mandate is about, it's not, as some of its detractors would have it, a question of liberty." Not so fast, writes Lane:

The point Ezra misses—by a country mile—is that the threat to liberty, if any, comes not so much from the individual mandate itself, but from the other things Congress might do if it gets away with claiming authority for this measure under the commerce clause.

Fairly stated, this is the conservative constitutional argument: Health care for all is a good cause. But if, in the name of that noble goal, you construe Congress's power to regulate interstate commerce so broadly as to encompass individual choices that have never previously been thought of as commercial, much less interstate, there would be nothing left of the commerce clause's restraints on Congress's power. And then, the argument goes, Congress would be free to impose far more intrusive mandates. Judge Vinson suggested that Congress "could require that people buy and consume broccoli at regular intervals," and that is hardly the most absurd or mischievous imaginable consequence.

Advertisement

NEXT: Reason TV: Tweeting Around Egypt's Web Blackout - Meet John Scott-Railton

Editor's Note: We invite comments and request that they be civil and on-topic. We do not moderate or assume any responsibility for comments, which are owned by the readers who post them. Comments do not represent the views of Reason.com or Reason Foundation. We reserve the right to delete any comment for any reason at any time. Report abuses.

  1. the threat to liberty, if any, comes not so much from the individual mandate itself, but

    Everybody has a big but. Of course the threat to liberty comes from the idea of the “individual mandate.” Coercion is coercion.

    1. Everybody has a big but.

      Hey, I resemble that remark!

      1. Dilettante!

        1. Whew.

          1. I like big butts and I cannot lie.
            You other brothers can’t deny.

      2. …the term you want is CALLIPYGIAN, you cow!

        1. +1 for appropriate geek reference

          1. …TECHNICALLY it’s a GREEK reference!

    2. Keep your but off my Bill of Rights.

      1. yes, butt out

  2. I’m surprised there’s someone out there paying enough attention to Klein, anymore, to comment on him. What a waste.

    1. He’s the Paris Hilton of the journalism community: mostly famous for being famous.

      1. He’s the Paris Hilton of the journalism community: mostly famous for being famous.

        What about that time he showed his shaved vag getting out of a car?

          1. Agreed. It looked like he shaved it with a weed-eater.

            1. And you could see his Ceasarean scar.

    2. I think his eyes are dreamy!

    3. This is one of his co-workers frantically trying to salvage a modicrum of credibility.

      “Look! Look! We take Ezra to the woodshed when he’s wrong, shallow, and even our readership know it!”

  3. But we need to Get This Done!! And if it sets an awful precedent that can be used in all kinds of ridiculous ways, well, it’s only the other team that will do that, so we just need to have the Right People in charge and everything will be fine.

  4. then the employer mandate is suspect as well.

    1. No shit, Sherlock.

      1. oh goodie, free treatment at ur local emergency room…paid by nobody! who says money doesnt grow on stethoscopes!

        1. Let him try again.

        2. you continue to be a fucking MORON

    2. Re: OhioOrrin,

      then the employer mandate is suspect as well.

      I would give you a cigar, but I remembered that it is extremely dangerous to offer lighted things to village idiots, so I will not be able to offer you your very deserved cigar.

  5. that Congress “could require that people buy and consume broccoli at regular intervals” … is hardly the most absurd or mischievous imaginable consequence.

    I’ll bite. What is?

    1. Imagine the worst thing the government could make you do. Then imagine having to do it to your mother.

      1. *Involuntary sphincter clench*

    2. “Require people buy and consume porn at regular intervals” is somewhat more mischievous.

      1. The buying part of that would be extremely absurd.

        1. Yes!! And change that “consume” to “brush their teeth with it.”

        2. Especially since this court decision.

    3. All citizens of the US will be required to send $10 directly to the current president. Furthermore, they shall pray at the altars of the National Cult for his (or her!) greater glory at least once a month for a period no less than twenty minutes.

      1. Nomad, how about stopping over for a beer tomorrow?

        1. To be clear, he doesn’t mean “beer”, but rather Goose Island 312.

      2. Wait a minute, I thought we were already supposed to be doing these things already!

      3. Furthermore, they shall pray at the altars of the National Cult

        I already have one at home.

        1. I was really expecting a link to American Standard.

    4. It can’t be to buy air, because life is an unalienable Right. So I’ll say excess carbon dioxide.

      1. It can’t be an inalienable right, as there would no longer be such things. Not buying air would definitely have an impact on interstate commerce, it would impact the revenue of those selling air.

        1. Damn it!

    5. Lane’s bosses should tell him to shut up.

      Then they could lobby congress to make everyone subscribe to a newspaper. Isn’t being properly informed by the real media just as important as being healthy?

    6. Maybe not the most absurd, but you could imagine that:
      Everyone must buy a Chevy Volt

      Everyone must install a GE wind turbine in their yard

      Everyone must buy a house, financed by Fannie or Freddie

      Everyone must drink soda sweetened by high-fructose corn syrup, and pay an additional “sin tax” on the soda as well

      You must replace the tires on your car every year, with American-made tires

      These are hardly imaginative, but I did amuse myself with the mandated soda + sin tax thought as so many government directives are contradictory.

      1. the mandated soda + sin tax

        Implementation of such out-of-the-box thinking *guarantees* the economy will recover and thrive.

      2. Or everybody must buy these certain types of light bulbs only made by GE.

        Wait.

        Didn’t that already happen?

      3. Japan is like this. You don’t have to buy a car in the first place, but you aren’t allowed to keep them for more than a few years. Keeps car sales brisk.

        1. Incorrect. You are more than welcome to keep a car for 11, 12 years. I had one that was around that old when I lived there. You had better be ready to pay out the ass for bullshit “annual inspections” though.

      4. “Everyone must buy a Chevy Volt”

        That would be a huge and disturbing change from the current system, where only taxpayers have to pay for Chevy Volts.

        On the other hand, under the new system you would actually get the car instead of just giving away money to the manufacturer. On the downside, the car would be a Volt.

  6. Fairly stated, this is the conservative constitutional argument: Health care for all is a good cause.

    Anyone in Washington ever learned that there is a direct relation between the inherent ‘goodness’ of a cause and the degree to which when put into action disasters occur? Fighting communism was a good cause, and needlessly losing thousands of men to do so to fend off commies in remote, strategically nil places was the outcome of those good intentions put into action.

    Also, the rhetorical tepidness here does no one any good. It’s the kind of response that gives the statist wiggle room on the hook and helps them sustain the delusion they are of sound disposition. Lane is being an enabler here. He should have said, ‘No, Ezra, you are a clueless fuck. Now find a bus to walk in front of to make some use out of your miserable existence.’ It would at least have expressed the exasperating moral dimension of leftist folly.

    1. Nobody decides to throw away the Constitution in the name of cupidity. The road to hell isn’t paved with mischevious intentions.

    2. Agreed. Why is it when creating stupid ideas they can be as blatant and crazy sounding as possible, but when shooting down bad ideas one has to be civilized and reference any possible merits of the bad idea to not be called a nut themselves?

      1. Retention of Power, how the fuck does it work? (oh, yeah, what you described is a good start.)

  7. Research the lies that were used to sell Socialist Security – only 1% tax, your soc sec number will only be used by the soc sec dept, etc…

    1. Oh come on! They were just trying to help him to his feet. And the guy filming that is obstructing a police officer and other vague offenses.

      1. “Well, if you play the video backwards, you’ll see us help him to his feet.”

      2. And the guy filming that is obstructing a police officer and other vague offenses.

        Looks like another lynching. They need to get with the LAPD so they can figure out their next step.

    2. Wimp blood is in the water. No threadjack can save your boyfriend Klein at this point, Bingo.

        1. Damn, now I’ve got knuckle marks on my monitor.

          1. I ended up with monitor marks on my knuckles.

        2. He looks like he is trying to butter you up before asking for money.

          No, Ezra, No!

        3. Where’s his Cosmo?

          1. He rolled up two issues and jammed them up his ass.

    3. Amazingly, a few of the officers have been fired, and indicted.

      Not so amazingly, some of them have not.

    4. Why are there as many police cars as there are? A burglary by a 15-year-old warrants 6 units reporting?

      1. Really, the only needed one to run him over.

        I can’t think why the driver of that vehicle isn’t being charged with assault with a deadly weapon, or better, attempted murder.

  8. That clause is 100’s of years old! How can it be useful today!!!

    1. Plus, it’s hard to read. Like, totally!!

    2. The guys who wrote it are DEAD!! They have absolutely nothing relevant to say about modern society. Whatsoever. !!11@!

      1. LOL! Will u b my bff 4eva?

    3. It’s useful for justifying every regulation liberals want to enact.

      Can you imagine them trying to justify, say, Social Security by citing the power “To establish a uniform Rule of Naturalization, and uniform Laws on the subject of Bankruptcies throughout the United States”? Not that they couldn’t do it.

  9. Once you cross the Rubicon of stating that your eventual use of health care is a matter of interstate commerce, then there is no part of your life, none, zip, zero, nada, that is beyond the reach of the Total State.

    Because everything you do, or don’t do, can be cast as having, in the aggregate, an indirect impact on health care. Diet. Housing. Transportation. Exercise. Work. Play. Every single fucking thing (oh yeah, fucking) is now subject to the control of Our Masters in Washington.

    1. Go, Packers!

    2. The Big Question is, then, Where does the Army stand?

      1. Don’t ask; don’t tell.

        1. Yeah, wait to see which horse to back.

    3. Dear Sir:

      Your stubborn insistance on staying alive past the government approved termination date is adversly affecting the healthcare market.

      Kindly report to the nearest officially approved termination station with 48 hours or federal agents will be dispatched to “assist” you in complying with this directive.

      Sincerely,

      Uncle Sam

      1. PS : You will be billed for the time of the agents dispatched to “assist” you.

        1. Look, you take your chances for renewal on Lastday. Like everybody else.

    4. I’m posting this comment to my Facebook page, with credit given. Not that I have any grand illusions that I’m “spreading the word,” but my Friends will certainly appreciate it

      1. Fat crack hos (is that the right pluralization of ho, or is it hoes?) have always been friends of liberty!

        1. I think it follows the same pluralization rule as dildo….unfortunately I don’t know how that one works either. Thanks for nothin, Dimitri Martin.

          1. I think most house styles seem to frown on the use of an apostrophe here (e.g., ho’s), so I would say that ‘hoes’ is perfectly acceptable.

    5. Because everything you do, or don’t do, can be cast as having, in the aggregate, an indirect impact on health care…oh yeah, fucking

      We’re gonna have to pass a law to stop Tony from having sex. If every gay guy did, HIV would spread like wildfire.

  10. The train has already left the station. The Commerce Clause has already been stretched past the point of absurdity to include just about anything – interstate is now includes intrastate and commerce now includes noncommerce. Are judges going to actually do their job and adhere to the Constitution finally? Or are we just one more giant step on the road to fascism. We shall see.

    Oh yeah, one more thing. Any conservative that believes government health care is a “noble goal” by itself is an idiot.

  11. Seriously, fuck Ezra Klein. Fuck him in his big Jewish asshole. Go to Israel and await the revenge of the Muslim Brotherhood you fucking lox and bagel eatin Jew bastard! And take as many of your liberty-loathing Jewish fucktard friends with you as well!

    1. Shut the fuck up.

    2. Juden Raus!

    3. Mister Cole. Please.

    4. D- Trollin’.

  12. I’ve notice that people on the left argue like this–It is not therefore it is true–it is absent of any reason behind why they think it is true. They just declare it.

  13. If we must contend with the Commerce side of the health care law and the individual mandate (as opposed to its tax-based legitimacy), then please note as follows:

    1) Regulating the nation’s medical insurance system – apart from individual mandates – is indisputably within the Congress’s commerce power. The congress-enacted regulatory regime, apart from the mandate, is beyond quibble under the commerce clause.

    2) The individual mandate, as one integral part of the regulatory regime on the nation’s medical insurance system, fits rather easily under the “necessary and proper” clause, even if it has no independent-and-free-standing basis under the commerce clause on its own. The individual mandate does not have to “stand on its own” apart from the rest of the regulatory regime. If the mandate is a necessary and proper piece within the larger regulatory regime of the nation’s medical insurance system, and such larger regime is commerce-clause-legit, then the mandate is legit, too.

    It follows that the mandate is nothing like a free-standing “broccoli mandate” or such. The “broccoli mandate” is a hypothetical that draws upon using the commerce clause as a “jursidictional hook” — as it is used to federally ban narcotics and machine guns and wire fraud and unauthorized wheat production. The mandate does not stand on a “jurisdictional hook” of commerce power. The mandate is inextricably integrated into a core exercise of the commerce power over the nation’s medical insurance system.

    3) The Florida judge’s opinion, by not treating the individual mandate as “severable,” UNDERSCORED the already obvious fact that the individual mandate is necessary to the larger commerce-based regulatory regime of the nation’s medical insurance system.

    4) If the federal government cannot force you to buy something (in this case, by imposing an extra tax on you for failing to buy something), then that is a new and unenumerated limitation on congress’s commerce power and necessary-and-proper power. The notion that the federal government can’t “force you to buy a product” may be true, but it does not follow from the natural and obvious limits of commerce power or necessary-and-proper power. It is a limitation on those powers that has to be drawn from some other source.

    5) A free-standing individual mandate that was not connected to a larger regulatory regime over the nation’s medical insurance system would probably fail under the commerce clause (as would a broccoli mandate), but that is not what the individual mandate is. The individual mandate is connected to a larger regulatory regime over interstate commerce, and, as the Florida judge’s opinion re-emphasized, it is so important to that regulatory regime that it is non-severable.

    1. Regulating the nation’s medical insurance system – apart from individual mandates – is indisputably within the Congress’s commerce power. The congress-enacted regulatory regime, apart from the mandate, is beyond quibble under the commerce clause.

      Oooh. Fail right out of the gate.

      1. The nation’s medical insurance system is not within the meaning interstate commerce?

        Good luck with that.

        1. The People still hate it.

        2. The nation doesn’t have a medical insurance system. Your buddies specifically created laws saying that only states have medical insurance systems. make up your damn mind.

          1. We certainly do. Many nation-wide systems are managed and controlled in large part at the state or local level (e.g., schools, prisons, airports). That is no barrier to congress regulating the systems at the national level.

        3. The Constitution doesn’t say interstate commerce.

        4. within the meaning interstate commerce?

          Thanks to people like you, that meaning is changing – and not in the direction you would like.

    2. TLDR, but saw enough of your “reasoning” to permanently scar me. Thanks, you statist prick.

    3. Judge Vinson heard this argument and blew it to smithereens. Necessary and proper dictates that are used to support damaging policies are neither necessary or proper.

      1. So “necessary and proper” give the judiciary a roving commission to squash “damaging policies”?

        Good luck with that.

        1. Hi, I’m Danny! I’m the kind of douche who still believes the threadworn phrase ‘good luck with that’ is the epitome of rhetorical sarcasm. Pleased to meet you! I’ll be around the neighborhood, driving down the value of your threads for a good long while. Come on over some time, sit a spell!

          1. {That’s not really me.}

            1. Actually, it kind of is.

    4. 1. Your assertion that the regulatory scheme outside of the mandate is “beyond quibble” is simply an assertion. Maybe you want to try an argument from authority to back it up, to fit your overall theme of argumentation.

      2. Yes, we’re aware that in your oh-so-sophisticated reading of the Constitution, asserting “NECESSARY AND PROPER!!!!” is all that’s needed to justify whatever you want. Thanks for confirming that.

      4. Do we really have to explain to you that the Constitution is not an “enumerat[ion of] limitation[s] on congress’s…power” ? Seriously, just because the C says “COMMERCE” and “NECESSARY AND PROPER” does not automatically require that suddenly the whole theme of the document (limitation on government’s power) be inverted and require a specific list of things the gov’t now *can’t* do because you just summoned those extra special daemons.

      5. So what you’re saying is all Congress has to do is “connect the dots” between any “valid” regulatory power and the mandate du jour and then anything goes? Seriously, why even have a defining document for your government if you’re just going to let it do anything at all, whenever it wants?

      1. The mandate is needed for the rest of the regulations of the nation’s medical insurance system to work. Friends and foes of the law agree on that much. Thus, it is necessary and proper in a very direct and defined way. That doesn’t mean anything can be “necessary and proper” by tenuous connection to another enumerated power. The individual mandate’s connection to the commerce-regulation of the nation’s medical insurance system is well inside the margins. It is not pushing the envelope.

        1. It may make it necessary, it doesn’t make it proper.

          1. It’s not even necessary, as Vinson rightly pointed out – the “necessity” of the mandate is created by the inherent failure of the program itself. Thus, it is the program which should be eliminated, solving both problems simultaneously.

            This line of ‘argumentation’ has already been destroyed.

      2. Regulating the nation’s medical insurance system – apart from individual mandates – is indisputably within the Congress’s commerce power.

        I believe the Founders would be shocked to learn so. They viewed the federal power to “regulate interstate commerce” to be the power to standardize trade among the states, preventing the sovereign states from erecting internal trade barriers, that sort of thing.

        Right now, the only aspect of interstate commerce implicated by health insurance is that some policies will pay for care received in another state. Any given policy can only be sold within a single state, though.

        The individual mandate, as one integral part of the regulatory regime on the nation’s medical insurance system, fits rather easily under the “necessary and proper” clause,

        No, it doesn’t. The necessary and proper clause doesn’t expand any of the enumerated powers beyond their terms. If Congress can’t impose an individual mandate in isolation, it can’t impose one buried in a 2700 page bill.

        And so forth. You get the idea.

        1. You just read N&P completely out of the constitution and made it completely redundant with the other enumerated powers, and thus utterly meaningless, PLUS put new limits on the commerce power that have never been expressed in a Supreme Court opinion.

          Good luck with that.

          1. You again eliminate any restriction on gov’t power. Any law could be created to “improve the economy”. Congress could then say it is N&P to do X, X being anything their dark little hearts desire. Like oh I don’t know create forced labor camps?

            1. Winston: you forgot to add

              “Good luck with that!” to the end. It’s very clever.

          2. 2cleverby1/2 arguments on the constitutionality of it wont make it any more popular with the People.

    5. The reason that the individual mandate is nonseverable is because the dumbasses who vomited this monstrosity of a law forgot to include a severability clause, not because it is necessary to the law as a whole.

      1. No, no, it was in the early drafts, and taken out. It was intentional. They were playing chicken with the judiciary.

      2. There is more to it than that. Most persons with an informed opinion of the law acknowledge that the individual mandate, or something comparable, is needed to make the whole law work. You know that. Stop playing coy.

        1. Then find “something comparable” that doesn’t force us to forgo the idea of a constitution of enumerated powers.

          1. Extra tax plus equivalent tax credit.

            This has been widely covered. Again, stop playing coy.

            1. Except an extra tax would not have passed, and would not have been proposed, for a reason.

              Nice try on trying to end around the people.

        2. Most persons with an informed opinion of the law acknowledge that the individual mandate, or something comparable, is needed to make the whole law work.

          It’s needed to clean up the fuckups of the rest of the bill, not to carry any of it out. It’s not necessary for the rest of the bill to be implemented, so no go.

    6. I have a sudden urge for pretzels.

    7. So congress can pass any law to do anything they want as long as it is a combo? That is some Tekken style legislation if I have ever seen it.

      1. NECESSARY AND PROPER COMBO. K.O.!

      2. O, O, X, X, T, O, T, O, X, S, T, O, Up+X

        BAM! I just repealed the PPACA. Perfect Win too!

      3. *insert some button combinations from a dualshock here, since the spamfilter is a bitch*

        BAM, just repealed the PPACA, Perfect Win too. Helps that I didn’t let it out of the corner.

  14. Is Klein trying to get the stupidest media personality of the year award? Because he should probably know that the smart money is on Krugman.

  15. No SF, I will not shut up. It’s time that libertarians understood who the real enemies of freedom are. Your average Jew doesn’t give one damn about the Constitution or America. The first question they ask is “it good for the Jews?” not “Is it good for America?”
    Jews wrote the damn health care law!

    1. Juden Raus!

    2. You’re a racist little pissant fuck, aren’t you.

      1. More than likely it’s a Klein fan try to say that the only reason we don’t like Klein and his feeble arguments is antisemitism on our part.

        Either way, it still gets the good old STFU.

        1. It looks like another confused dipshit that somehow thinks this is a Pro-Limbaugh site, and wants to try and post racist crap as a form of entrapment.

      2. OK by me.

    3. Welcome to the troll list, enjoy your stay.

  16. The individual mandate, as one integral part of the regulatory regime on the nation’s medical insurance system, fits rather easily under the “necessary and proper” clause, even if it has no independent-and-free-standing basis under the commerce clause on its own.

    Nope.

    1. The Necessary and Proper Clause expressly relates only to the enumerated powers. It empowers Congress to pass laws as may be necessary and proper “for carrying into execution the foregoing powers.” Those powers always were understood to be limited and specific.

    2. In this instance, the power in question is the power to “regulate commerce among the several states.” Thus, Congress can pass laws necessary and proper to do that – regulate COMMERCE AMONG THE SEVERAL STATES.

    3. The individual mandate does not regulate “commerce”; nor does it regulate activity “among the several states.” It requires a person who decidedly is NOT engaging in any kind of commerce to go out and do so – it forces the person to engage in commerce when he otherwise was not doing so. Thus, the individual mandate cannot, on its own, be justified under the Commerce Clause.

    4. To interpret the N & P clause as empowering Congress to do something beyond those limited, enumerated powers would constitute an end-run around those very limited, enumerated powers and render them hollow and meaningless. It’s circular logic. “We can’t directly regulate something that does not constitute commerce among the states, but if we claim we’re doing it as part of a larger scheme of regulating commerce among the several states, then we can do it.” I don’t think so.

    If that were the case, then all we need is the N & P clause, and the enumerated powers become meaningless. It’s bootstrapping.

    1. Quite the contrary, you are trying to read “necessary and proper” out of the constitution. N&P, to have ANY meaning, has to mean something beyond the other enumerated powers.

      Your reading would let N&P add nothing beyond the powers otherwise enumerated, which means there is no reason for including N&P in the first place.

      1. You Retarded Man Whore.

        to make all laws, which shall be necessary and proper, for carrying into execution the foregoing powers, and all other powers vested by this constitution in the government of the United States, in any department or officer thereof.

        1. So give an example of something congress could not do under the commerce clause alone, but can do because of N&P + commerce clause, thus illustrating the operation of N&P.

          Oh, and uh…..

          ….. good luck with that!!!!!!!!!!!!

          1. And we (still) have a loser!

          2. hmm I don’t know lets say pass a law making it so states can’t create tariffs against each other. This is under the commerce clause and is a necessary and proper thing for congress to do. Very easy.

            1. also, good luck with that you smarmy asshole.

            2. Are you saying it would not be possible under the commerce clause alone, without N&P?

              1. You have it backwards Danny. The N&P clause is a limitation on Congresses poer, not a grant of additional power. In order for a law passed by Congress that regulates commerce between the several states to be constitutional, it must be both necessary and proper. For instance, a law forbidding teamsters delivering purchased goods across state lines from wearing pants would be unconstitutional because, though it technically regulates interstate commerce, it is both unnecessary and improper.

                1. Wow. Fascinating!

                  Uh, citation, please?

                  1. Danny, your claim that the N&P clause must allow Congress to do something other than its enumerated powers is just as, if not more, baseless than the idea that it merely reinforces that Congress shall only do what is necessary and proper towards carrying out its enumerated powers. In fact, The latter interpretation is more logical since it springs from the text that follows it. Your interpretation springs from nothing but your desire to give Congress more power, and basically ignores the text that follows.

                  2. So you’re claiming that if there was no necessary and proper clause, congress would have no power to pass necessary and proper laws – so they’d only have the power to pass laws that are either unnecessary or improper? Wouldn’t it follow from that that the addition of the necessary and proper clause would give congress the power to pass laws that are necessary and proper, or unnecessary, or improper? You don’t suppose that the necessary and proper clause was included to forbid congress from passing unnecessary and improper laws? Okay. It’s just under your interpretation the framers seem to be quite literally insane.

                  3. citation, please?

                    Running out of arguments already.

          3. Just ignore him guys, he’s obviously:
            1. Not very bright
            2. Just another liberal working backwards from faith in obamacare and trying to justify it somehow.

            Trolls aren’t worth talking to.

            1. Libertarian headfake number 18: defining “troll” down.

          4. You retarded man whore.

            Forgoing refers to that which is allowable in the context of what has been enumerated. In other words that which is not extra- consitutional. Jesus fucking Christ! It is right there for your dim witted perusal in the Constitution itself. Are you denying that it isn’t as it is written? That quote above is from something other than the constitution? For your argument to make even the faintest of sense, that quote must come from else where.

            Prima facie, mothefucker!

            From someone who has a great deal more tolerance for fuckheads like you than I do:


            The Constitution of the United States, Art. I, vests in Congress the power ” to make all laws, which shall be necessary and proper, for carrying into execution the foregoing powers, and all other powers vested by this constitution in the government of the United States, in any department or officer thereof.”

            The plain import of the clause is that congress shall have all incidental and instrumental powers, necessary and proper to carry into execution all the express powers. It neither enlarges any power specifically granted, nor is it a grant of any new power to congress. It is merely a declaration for the removal of all uncertainty, that the means of carrying into execution those already granted, are included in the grant.

            Some controversy has taken place as to what is to be considered “necessary.” It has been contended that by this must be understood what is indispensable; but it is obvious the term necessary means no more than useful, needful, requisite, incidental, or conducive to. It is in this sense the word appears to have been used, when connected with the word “proper.”

            http://www.lectlaw.com/def2/n043.htm

            1. I think the italicized passage won it for me. “Useful” “indicental”, “conducive”?

              1. You Fucking Man Whore

                All right then. Now go out there and earn your money. Those tricks don’t fuck just themselves. Or, if they do, you don’t earn anything.

                1. I don’t know why you keep calling me that. I never charged your mom a cent.

                  1. You (now back to being) Retarded Man Whore

                    Like you didn’t sponge off of her like you do the rest of society.

        2. Ding!

          We have a winner.

    2. The arguments about interpretation of the “necessary and proper” clause are one thing. I am on the side of those who (like Barely Suppressed Rage) say that a broad interpretation of N & P renders at least the parts of the COTUS regarding Congress to be meaningless.
      I would like to focus on the word “regulate” in the commerce clause. I don’t think the Founders used the word the way we do today. To regulate did not mean “to control,” it meant “to make regular,” i.e. to remove obstructions and to allow it to proceed in an orderly manner. Can anyone justify using today’s meaning? If the sense of the commerce clause using the late eighteenth century definition isn’t what some people want, shouldn’t they first amend the document to give it a new sense? I am not in favor of that. I prefer the old sense. Interpreting old words and phrases in the context of today’s usage is dangerous.

      CB.

      1. I hears ya, CrackerB. I think you’re probably right, but I couldn’t point you to anything authoritative.

        The Commerce Clause is badly in need of the kind of scholarship that was applied to resurrect the Second Amendment.

        1. That’s crazy talk. You’ll set us back a hundred years.

  17. BSR . . . you’re a worshipful little slave aren’t you? Go tell your Jew master that you want a better summer blockbuster list, they’ve been pretty lame the last few years.

    1. You should put some Preparation H around your mouth, because yer talkin’ out yer arse.

  18. It’s time for the ultimate Final Jew Meltdown!

    1. * munches on popcorn *

    2. Awww… Who am I gonna hate on now?

  19. UUUUUUNNNNNDDDDEEEERRRZZZOOOOOOOOOG!

  20. The point Christopher Lane misses by a country mile is that *Ezra Klein LOVES THE IDEA* of all the other things Congress might do if it gets away with claiming authority for this measure under the commerce clause.

    It would finally liberate congress to wield its velvet fist of beneficence unrestrained by the quaint notions of a 200+yr old docment drafted by men in wigs.

    1. I don’t see any problem with limitless rule by a feckless mob.

      1. I don’t see any problem with limitless rule by a feckless mob.

        Stay right there. We’ve just about finished hammering the gibbet into place.

  21. pass a law making it so states can’t create tariffs against each other. This is under the commerce clause and is a necessary and proper thing for congress to do.

    Liekwise, preventing a state from imposing it’s own tarrifs on international trading partners.

    Wow, using the commerce clause properly IS super easy, thanks Winston!

    *highfive*

    1. it’s

      *tiny shaken fist*

  22. Conservatives, such as yourselves for instance, like to talk about ‘original intent.’ As if such scholarship would fall in your favor. Thomas Jefferson was the man who coined the phrase, The tree of liberty must be refreshed from time to time with the blood of patriots and tyrants. He also supported the French Revolution. Your assertion that he, the author of the Constitution, would support something as quaint as strictly enumerated powers when he supported expansive revolution just doesn’t add up.

    If that is the road you want to go down with this argument on original intent, well, good luck with that.

    1. I didn’t think you were an idiot before this post.

      1. “I didn’t think you were and idiot before this post.”

        I did think he was an idiot, but the post surely plumbs new depths.

      2. Conservatives, such as yourselves for instance

        Fucking prostitution legalizing, War on drugs ending, open borders promoting, DOD cutting, bailout hating, fed auditing, police brutality exposing conservatives!

        Yeah, Danny’s a fucking idiot. It explains the fantasy world that only exists in his little tiny mind, though.

    2. “Your assertion that he, the author of the Constitution,”

      How much is cherry-picking paying these days?

    3. So Jefferson’s support for the French Revolution, a movement that replaced the French feudal monarchy with Enlightenment democracy and citizen rights, proves that Jefferson wouldn’t support restricting government to only those enumerated powers that protect citizens’ rights???

      HAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHA

    4. Re: Danny,

      Conservatives, such as yourselves for instance,

      Not a good way to start a logical argument, Danny.

      Thomas Jefferson was the man who coined the phrase, The tree of liberty must be refreshed from time to time with the blood of patriots and tyrants. He also supported the French Revolution.

      He also built a very cool home designed by himself.

      Your assertion that he, the author of the Constitution, would support something as quaint as strictly enumerated powers when he supported expansive revolution just doesn’t add up.

      Unfortunately, seems like you got your history from the same place as many other simpletons who simply exist, tragically, in the US: From your unionized, Public School teacher-nitwit.

      There were SEVERAL authors of the Constitution, you dolt. And, besides, jefferson was not very keen on a Constitution.

      “A man named Gouverneur Morris of Pennsylvania was in charge of the committee to draft the final copy of the Constitution. Other men who had much to do with writing the Constitution included John Dickinson, Gouverneur Morris, Thomas Jefferson, John Adams, Thomas Paine, Edmund Randolph, James Madison, Roger Sherman, James Wilson, and George Wythe. Morris was given the task of putting all the convention’s resolutions and decisions into polished form. Morris actually “wrote” the Constitution. The original copy of the document is preserved in the National Archives Building in Washington, D.C.

      Jacob Shallus who, at the time, was assistant clerk of the Pennsylvania State Assembly, and whose office was in the same building in which the Convention was held, was given the task of engrossing the Constitution prior to its being signed.”

    5. Great. Somebody jacked my handle with my e-mail address. What good is this log-in if somebody can just hijack your handle like that?

      Note to repliers: I (real “Danny”) did not write the above post, so the joke is on you.

      1. Re: Danny,

        Note to repliers: I (real “Danny”) did not write the above post, so the joke is on you.

        As if anybody cared…

      2. Re: Danny,

        Note to repliers: I (real “Danny”) did not write the above post, so the joke is on you.

        As if anybody cared…

  23. “Your assertion that he, the author of the Constitution”

    So Jefferon was actually in America masquerading as James Madision the whole time he was supposed to be in France?

    Very clever of old Tom.

    1. That way he got 2 paychecks.

  24. Re: Danny,

    If we must contend with the Commerce side of the health care law and the individual mandate (as opposed to its tax-based legitimacy), then please note as follows:

    But if we not, then we don’t… right?

    1) Regulating the nation’s medical insurance system – apart from individual mandates – is indisputably within the Congress’s commerce power.

    Regulating an industry is not the same as mandating the purchase of a product just for being alive.

    The congress-enacted regulatory regime, apart from the mandate, is beyond quibble under the commerce clause.

    Nothing is beyond quibble.

    2) The individual mandate, as one integral part of the regulatory regime on the nation’s medical insurance system, fits rather easily under the “necessary and proper” clause

    Just because a certain provision is necessary for a bill to function does not make the provision, ipso facto, valid or constitutional. It is IRRELEVANT whether the provision is all important or not – if it is illegal, it WILL STILL BE illegal whether is part of the HC bill or not.

    The individual mandate does not have to “stand on its own” apart from the rest of the regulatory regime.

    Of course it does. You cannot add a “rape allowance” to a bill and then say it does not have to be judged by its own virtue, either.

    If the mandate is a necessary and proper piece within the larger regulatory regime of the nation’s medical insurance system, and such larger regime is commerce-clause-legit, then the mandate is legit, too.

    You’re again making the same fallacy of division.

    It follows that the mandate is nothing like a free-standing “broccoli mandate” or such.

    No, it does not follow that, it is irrelevan whether the mandate is “free standing” or within an important bill. It’s a red herring.

    The mandate is inextricably integrated into a core exercise of the commerce power over the nation’s medical insurance system.

    Again, whether this is true or not, it is irrelevant. Just because the provision is all important for the bill to work does not make the provision any more legal.

    3) The Florida judge’s opinion, by not treating the individual mandate as “severable,” UNDERSCORED the already obvious fact that the individual mandate is necessary to the larger commerce-based regulatory regime of the nation’s medical insurance system.

    Obviously, but even if he tried, he would have NO CHOICE as there is NO severability clause within the law. This has been pointed out many times, and I can’t fathom why would you keep saying that the mandate is not severable ONLY because it’s of great importance for the functioning of the bill. That’s not how LAWS work!

    4) […]The notion that the federal government can’t “force you to buy a product” may be true, but it does not follow from the natural and obvious limits of commerce power or necessary-and-proper power.

    Only because you totally ignore or choose to ignore what the clauses actually SAY. The so-called “interstate commerce clause” does not say Congress can regulate Commerce (that is, the whole concept), only that it can regulate commerce among the several states. That wording is extremely important, as it does NOT give Congress power to regulate commerce between PEOPLE by EXCLUDING such through the use of the word “States”. The clause, read plainly (as it should be) indicates that only those things that affect commerce between the states (not interstate commerce) is to be regulated, such as tariffs, fees and duties that the states may try to impose on each other. Only a very vivid (or very corrupt) imagination would suggest Congress was given the power to regulate people’s actions.

    The “necessary and proper” clause only pertains to making the rules that the Executive power and departments must follow to do their functions, and that’s it. That is what the clause SAYS, nothing MORE. What the clause means by “necessary and proper” is “Don’t be imaginative, dude! Only what’s enough for those guys to do their jobs, nothing more!”

    5) A free-standing individual mandate that was not connected to a larger regulatory regime over the nation’s medical insurance system would probably fail under the commerce clause (as would a broccoli mandate), but that is not what the individual mandate is.

    Really? What if the “broccolli” mandate was also included in the bill? Would you defend such mandate with the same arguments you’re wielding now?

    The individual mandate is connected to a larger regulatory regime over interstate commerce

    Again, not relevant. Just because the rest of the bill may stem from a regulatory regime does not CONFER a veneer of Constitutionality to part of it.

    1. Only a very vivid (or very corrupt) imagination would suggest Congress was given the power to regulate people’s actions.

      Every law is a regulation of people’s actions.

      There are far more tenuous examples of interstate commerce that Congress has jurisdiction over than health insurance. Not only is the commerce clause, in legal reality, broader than you want it to be, it’s been applied to pretty much any activity that affects commerce beyond a single state’s borders. In the modern world, as opposed to the preindustrial homestead fantasy world you apparently think we live in, that encompasses many things.

Please to post comments

Comments are closed.