Obamacare

If We Pretend There Is No Issue, Maybe It Will Go Away

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Last week I noted Larry Tribe's attempt to influence the Supreme Court's position on ObamaCare's individual health insurance mandate by asserting that the outcome is not in doubt. The mandate is obviously constitutional, the Harvard law professor declared in The New York Times, and the justices have way too much integrity to conclude otherwise. Now Katrina vanden Heuvel, editor of The Nation, is playing bad cop to Tribe's good cop:

What's at stake is not just the law itself or the fate of the tens of millions who wait for its benefits, but the very legitimacy of the court….If the court's conservatives choose to overturn the legislation on clearly political grounds, it would call into question the legitimacy of the court. It would show, once and for all, that certain justices are governed by ideology rather than precedent.

Unlike Tribe, Vanden Heuvel does not claim to be confident that the justices will rise above their policy preferences and crass political considerations to render a judgment based on the law. But like him, she is certain that there is no legitimate disagreement about what the law requires in this case. After all, "Jurists across the political spectrum, including Charles Fried, President Reagan's solicitor general, have argued that the mandate is unquestionably constitutional."

It is also true that jurists across the political spectrum, including George Washington University's Jonathan Turley and the University of Wisconsin's Ann Althouse, have expressed doubts about the constitutionality of the mandate. So have Henry Hudson and Roger Vinson, two of the four federal judges who have ruled on the issue so far. Vanden Heuvel claims "both decisions have an unmistakably political tone," by which she seems to mean that both engage the question of what the Commerce Clause authorizes in light of its goals and history.

I think that approach indicates that Congress cannot claim to be regulating interstate commerce when it forces people to buy medical coverage. But even if we stick with the Commerce Clause as the Supreme Court has interpreted it since the New Deal, it is by no means clear that it authorizes this imposition. As Hudson and Vinson noted, Congress has never pushed the Commerce Clause quite this far before. The Congressional Research Service and the Congressional Budget Office, not usually perceived as hotbeds of right-wing ideology, both have said the mandate raises a "novel" and "unprecedented" issue. The New Republic's Jonathan Cohn, an ObamaCare supporter who fears the implications of a ruling against the mandate, nevertheless concedes there are "good constitutional arguments" against it.

Vanden Heuvel wants to pretend otherwise. She simply assumes that anyone who disagrees with her about the proper disposition of this case is arguing in bad faith, which relieves her of the need to offer any arguments of her own. Not even Tribe, who concedes that Clarence Thomas has laid out a principled basis for overturning the health insurance requirement, goes that far.

More on the constitutionality of the insurance mandate here.

NEXT: What We're Fighting For

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  1. Did someone mention Katrina vandemn Heuvel??!!

    *heart swells*

    1. I’m so excited I can’t type straight…

      1. Vanden Heuvel is the Bizarro World Jacket.

        1. She’s dreamy, in that emaciated, bulimic, clueless-liberal, ahit-for-brains stupid way.
          I love her…

          *sigh*

          1. If I have to listen to that level of moron crap come out of woman’s talk-hole, she’d have to be 30 years younger to make it excusable.

            1. Maybe only sweetness and delight comes out the other end.

              1. I somehow doubt that, I bet she even queefs leftist shibboleths.

                1. Thank you. That was the most funny thing I’ve read today so far.

                2. Thank you. That was the most funny thing I’ve read today so far.

                  1. Squirrels!!!!!!!

            2. Have you ever been with a woman, SugarFree?

          2. Forget the intellectuals. Give me the anchorwomen. I’ll take Shannon Bream, Harris Faulkner, or (especially) Courtney Friel any day. And what ever happened to Laurie Dhue?

            1. Forget the intellectuals.

              You are not the first to gravely mistake vanden Heuvel for an intellectual.

            2. Vanden Heuvel is just a couple steps away from this.

              1. How can this be? Donald Berwick said the NHS is the bestest medical model EVAR? How could such a delicate flower squeeze out an emboli? She seems so perky!

  2. vanden Heuvel is remarkably stupid and dishonest. When she was on some program with Nick, and Nick fucking destroyed her, and she kept just saying the same thing over and over, it was clear how intellectually deficient she is.

    1. It’s from a nutrient deficiency.

      1. ..IF you know what I mean, And I think you do.

        1. Nick “fucking” destroyed her? On cable news? I’m impressed.

          1. She does like those moustache rides.

    2. …it was clear how intellectually deficient she is.

      As if being editor of The Nation wasn’t enough of a clue?

  3. How many words does it take just to point out that someone is begging the question?

    1. “Hurr durr hurr.”

      Three.

  4. She simply assumes that anyone who disagrees with her about the proper disposition of this case is arguing in bad faith, which relieves her of the need to offer any arguments of her own.

    Sounds an awfully lot like the ravings and argument form of a religious zealot to me.

    Similar to the ratings of a one Pope Albert of Eco-Theological Church (Reformed) and that global warming hoohah!

    Katrina, get back to to your effete and bulimic ways.

    1. she is a religious zealot. She worships big government.

    2. Liberals are religious zealots.

      Government is their god and the Federal Register is their scripture.

    3. She can’t make a rational argument because there isn’t one based in the principles she claims to believe in.

      There is nothing in leftist thought that would justify forcing people to make purchases from private companies.

      The only arguments she can really make are that it serves contemporary political purposes. For instance, not undermining a Democratic president. Supporting the rhetoric of the Democratic congress about universal healthcare. And such.

      You can’t really argue for it’s merits on the grounds of it’s adherence to leftist principles.

      1. What would she say if the law required everyone to buy 20 gallons of gas a month or pay a fine, whether you had a car or not. It could be held in tanks for you for that time when you do need it.

        Big Oil (or Awl as prince Albert would pronounce it).

        1. Right. The only way you can get to this through progressive ideology is by going “The state should be able to do whatever it wants in the pursuit of social justice.”

          Because if you can justify forcing people to buy health insurance as part of a scheme to get to universal healthcare, then you may as well have justified forcing people to join a gym, or a union, or a prayer group, in pursuit of whatever goal the state thinks is socially desirable.

          1. Because if you can justify forcing people to buy health insurance as part of a scheme to get to universal healthcare, then you may as well have justified forcing people to join a gym, or a union, or a prayer group, in pursuit of whatever goal the state thinks is socially desirable.

            Think of it like Social Security. You’re forced to contribute *cough*buy into*cough* to that, so…

            1. “Think of it like Social Security. You’re forced to contribute *cough*buy into*cough* to that, so…”

              Only if you elect to work for a living. I pay no SS.

            2. Yeah, but social security is a public program, not a private corporation.

              You aren’t forced to buy money market funds, or to hire a financial manager.

      2. The only arguments she can really make are that it serves contemporary political purposes. For instance, not undermining a Democratic president. Supporting the rhetoric of the Democratic congress about universal healthcare. And such.

        That Sister Hazel (I wonder where they rank in bands), is the very definition of a religion. Has government now become an “secular theocracy”, given your explanation?

        1. an==a

  5. The mandate is obviously constitutional, the Harvard law professor declared

    Are you serious? Wait, um, …

    1. Tribe went on to say that the mandate was so obviously constitutional that any speech to the contrary is unprotected speech and, legally, speaking, treason.

      1. What’s more it’s potty mouth.

  6. Not even Tribe, who concedes that Clarence Thomas has laid out a principled basis for overturning the health insurance requirement, goes that far.

    So Tribe should be expecting emails, blogs, and editorials (read: MSM “news”) from righteously indignated progressives, such as the principle-deficient van’s-den-is-a-Hovel, calling for his head for daring to agree with some judicially conservative leaning “Uncle Tom”, “minstrel” and “porch monkey”?

    1. Eventaully they came for Robespierre

  7. the very legitimacy of the court

    I imagine her as Lavinia, daughter of Titus Andronicus, as she wails in horror and torment.

    1. That’s way too erudite a reference for me….

      *applauds*

      1. ..but you got “erudite” correct, so you got that goin’ for you.

        1. A thought erudite was an Asian person who didn’t like technology.

    2. I imagine her as the subject of the Titus Andronicus song “No Future Part III: Escape from No Future,” which features the line “You will always be a loser!” repeated ad nauseum in the outtro.

  8. SCOTUS will not impune the employer mandate by overturning the individual mandate.

    1. Hello shit facktory!

      1. Thanks for pinch hitting.

        1. Any time, buddy

  9. Vanden Heuvel:Con Law::Krugnuts:Economics.

    How hard was that?

    1. I didn’t even know they had Nobel Prizes for Constitutional Law.

      1. Blackmun nabbed his for the discovery of the penumbra.

  10. The notion that someone from Reason Mag would take exception to another writer “assum[ing] that anyone who disagrees with her about the proper disposition of this case is arguing in bad faith,” is risible, to say the least.

    1. STEVE SMITH RISIBLE TOO, IN THAT STEVE ALWAYS “RISE-ABLE” TO RAPE SITUATION!

    2. Shouldn’t you be busy raping?

      1. He’s too busy looking up fancy words in a dictionary. “‘Risible!’ No way they could have a come back for that! Hurr Durr!”

        1. THIS is the horrible STEVE SMITH I’ve read so much about? I’m underwhelmed. In fact, I’d like a refund!

          1. The meme was always far, far too good to waste on him. He is merely the grit around which a beautiful pearl has formed.

            1. Well, he does look a sasquatch.

              1. like a sasquatch

            2. How poetic in its simplicity! I have misjudged you SugarFree! You are truly a splendid wordsmith! Or is it Splenda? You are no longer a sicky in my eyes (such as they are after viewing your disturbing collection of filth)!

        2. Fwee Wodewick!

    3. Steve, what was your body count on the Reason cruise?

  11. How many huevos could Heuvel heave if Heuvel could heave huevos?

    1. Muncho. Hasta huevo.
      ?

    2. Muncho. Hasta huevo.
      ?

      1. Whoa, whoa, whoa…50 MAYBE, but not 1000. Look at her! She’s a toothpick!

        No more than 50, says I.

        1. Who’s going to play Dragline in your remake of this scene?

  12. If We Pretend There Is No Issue, Maybe It Will Go Away

    That’s what she said!

  13. Not half as hard as I am, dat Heuvel bitch know how to make daddy happy. She knows what she is, unlike the rest of you bad dogs. Woof.

  14. Echo and the Bunnymen are the 89th greatest rock band of all time.

    1. We really do inhabit bizarro world.

      1. Echo and the Bunnymen are is the 89th greatest rock band of all time.

        Shall we call it Grammatica?

  15. It would show, once and for all, that certain justices are governed by ideology rather than precedent.

    Translation: If precedent conflicts with the plain language of the Constitution, call in the lawyers to reinterpret the Constitution to mean something other than what it says.

  16. What’s at stake is not just the law itself or the fate of the tens of millions who wait for its benefits…

    When I hear that there are X number of people “waiting for the benefits of” law Y, I reach for my revolver.

    1. What about the majority of voters who don’t want the damn thing at all? I mean, I generally reject this type of reasoning, but if somebody is going to use it, shouldn’t it cut both ways?

      1. Surely you realize Fatty that your concern is trumped by the “We are a rich nation and we should therefore be able to give such-and-such benefits to everyone” card.

        Where is Tony when we need him to explain this all to us?

        1. Removing the gerbils out of his ass.

  17. How does Screaming Lord Sutch and Heavy Friends place?

    1. Incredibly, they came in 93rd.

      1. You lie!

    2. I was just listening to that last week.

      1. Did you “shake your head through the night”?

        Good, um, stuff.

        1. I listened to two songs, wondered why I still have the thing, and put on some Megadeth.

          1. put on some Megadeth

            Glad it wasn’t Blue Cheer! šŸ˜‰ Out.

  18. “But like him, she is certain that there is no legitimate disagreement about what the law requires in this case.”

    This woman does not have the first clue about even basic legal analysis, and apparently lacks the stuff to grasp that obvious fact.

  19. If we’ve learned anything over the last 3 years it’s that you have to have a boogyman. Some in the left are setting up the boogyman for this situation early, just in case they lose.

  20. Vanden Heuvel: “This decision was purely political, despite its thorough arguments and exhaustive citings to previous decisions, and all those footnotey things througout.”

  21. She’s got another think coming.

    1. You trying to find out where Judas Priest ranks in all time greatest bands?

  22. SI . . . thank you. You are correct.
    R.E.M. is the 22nd greatest rock band of all time.

    1. Really? 22nd? That’s depressing.

  23. The Left is trying to set up the delegitimization of the judicial branch of government over this.

    That’s how much they love ObamaCare. Think about that. They are doing their best to destroy the Supreme Court over that 2700 page turd of a bill, that festival of rent-seeking, that gift to Big Pharma and Big Insurance. Those people are insane, there’s just no way around it.

    1. Thanks to you and your ilk, we have no other course of action.

    2. Is the country really falling apart before my eyes, or do I just think that because I read H&R every day?

      Maybe ignorance IS bliss.

      1. Mainer, you know it really is.

        At least H&R provides some comic relief.

      2. Land, guns, gold and seed (plus a year’s supply of food while the seeds grow). If you’re investing in anything else, you are kidding yourself.

        1. women & liquor fool

          1. I keep plenty of both secured in the basement.

    3. Well, if Obama flops at re-election time in 2012 the left will face a conservative court.

      1. Ruth is looking pretty frail…

        1. Sock it to me!

    4. “The Left is trying to set up the delegitimization of the judicial branch of government over this.’

      The Left has a history of doing that. See, e.g., FDR’s court-packing plan. Unfortunately, as we know, the tactic succeeded.

  24. Frankly, I’m confused as to why The Nation believes that the government can force you to buy products from private corporations.

    How exactly is that a “progressive” position? Except as an example of partisan rationalization, perhaps?

    I can understand why a leftist magazine would favor a single payer healthcare system, or a medicaid expansion. But forced purchasing of products has no particular connection to leftist values in itself. It just happens to be the tactic used by this particular administration to address an issue that they care about. Yet, opening up the constitution to that kind of interpretation would not bode well for many other cherished beliefs that the left shared. The onyl way I can explain it is that Vanden Huevel has rationalized her way around into a belief in pure state power, simply because it happens to dovetail with her immediate political concerns.

    1. Re: Hazel Meade,

      How exactly is that a “progressive” position?

      By Expediency, Hazel, expediency – gotta love it!

      “When in doubt, rely on what’s expedient”

      Old Statist proverb.

    2. So vanden Huevel is completely unprincipled…sounds about right.

    3. You are familiar with Wickard v. Filburn, no? That decision:progressives::Citizen’s United:libertarians.

      1. Yeah, but Wickard vs. Filburn was about preventing people from growing wheat on their own property for personal use. The objective of which was to allow the government to regulate wheat prices by manipulating supply.

        Now I realize all the perverse consequences of that, and the potential that it COULD be used to enrich particular political clients at others’ expense. However, there’s nothing in progressive thought that would reject the concept of regulating wheat prices.

        By contrast, forcing you to buy a product from a private entity runs explicitly counter to most progressives instincts. They are supposed to be opposed to profits, corporations, and capitalism in general. Forced purchases of any product, in general, seem to me to be destine to enrich private business in a way that progressive ought to be against.

        I really see no reason why anyone on the left would support a constitutional power to make people buy things. Unless they are just complete totalitarians who believe in the total supremacy in the state to do whatever it likes.

        1. Unless they are just complete totalitarians who believe in the total supremacy in the state to do whatever it likes.

          I think their commitment to die so readily on this particular hill is that it is nothing more than the camel’s nose of total control of health care by the Federal government. They’ve decided to stake Obama’s entire legacy on it. That’s why losing the House and almost the Senate didn’t slow them down one bit.

          1. Exactly. They want to die on this hill, not because they really think that the constitution should allow the state to mandate purchases, but because it’s part of the contemporary political calculus.

            Obama was supposed to usher in a new progressive era, blah blah. Can’t let his legacy be tanished. Gotta back him up against the forces of darkness (Republicans).

            It’s all COMPLETELY political.

            1. Exactly. They want to die on this hill, not because they really think that the constitution should allow the state to mandate purchases, but because it’s part of the contemporary political calculus.

              What bugs me is why they did not seek identical policies at the state level, where Article I concerns would be nonexistent.

        2. Unless they are just complete totalitarians who believe in the total supremacy in the state to do whatever it likes.

          Or secular federal theologists who believe this clusterfuck of a law will bring about the government equivalent of the Mah’Di.

          1. It’s utopian, which bears certain relationships to religious worsship, but I would be wary of making an explicit religious comparison.

            Granted, the whole notion of utopia is a derivative of the “kingdom of heaven”.

            1. It’s utopian, which bears certain relationships to religious worsship, but I would be wary of making an explicit religious comparison.

              Granted, the whole notion of utopia is a derivative of the “kingdom of heaven”.
              reply to this

              Belief in socialism has a religious quality to it.

        3. The onyl way I can explain it is that Vanden Huevel has rationalized her way around into a belief in pure state power, simply because it happens to dovetail with her immediate political concerns.

          I really see no reason why anyone on the left would support a constitutional power to make people buy things. Unless they are just complete totalitarians who believe in the total supremacy in the state to do whatever it likes.

          I think you found your answers.

        4. By contrast, forcing you to buy a product from a private entity runs explicitly counter to most progressives instincts.

          Au contraire. Forcing you to do things (for your own good and/or the good of the Glorious Collective, of course) is the core of the progressive’s instincts.

          1. Forcing you to do things that enrich a private for-profit enterprise? Not so much.

            1. Let’s force people to invest a certain percentage of their money in mutual funds and rationalize this by saying that everyone will eventually need retirement funds and by choosing not to do this, they are essentially placing the cost of their retirement on the rest of us.

              1. Let’s force people to invest a certain percentage of their money in mutual funds and rationalize this by saying that everyone will eventually need retirement funds and by choosing not to do this, they are essentially placing the cost of their retirement on the rest of us.

                Excellent point.

              2. George W Bush tried something like that and the Left went mad.

                1. Imagine the reaction today given the nastiness directed at Wall St. I would love to see their vitrol drive them to fiercely oppose it, and then have someone point out to them that its rationale would be tied to the rationale of the individual mandate.

                2. Precisely. Forcing people to buy things from private companies isn’t the left’s usual approach.

                  Their love of the concept today can only be explained because it happens to be politically expedient with respect to Obama’s health care “legacy”.

  25. “What’s at stake is not just the law itself or the fate of the tens of millions who wait for its benefits, but the very legitimacy of the court[…]”

    “It must be declared constitutional because we need it. If it’s not, then the SCOTUS sucks!”

    Lefty arguments are so quaint.

    1. “It must be declared constitutional because we need it. If it’s not, then the SCOTUS sucks!”

      Lefty arguments are so quaint.

      Would they apply this argument to the Defense of Marriage Act?

      Then again, DOMA was passed by veto-proof majorities in the House and Senate.

    2. +1 LOL.

  26. LOL, thats what the Sheeple have been doing for ever. Its about time they pay attention to whats going on in Egypt.

    privacy-online.au.tc

  27. Katrina needs to go back to singing with the Waves.

    1. I’m walking with [Cass] Sunstein, oh oh, and don’t it feel good!

  28. Unlike Tribe, who I think based his harrumphing editorial on honest (if delusional & grandiose) assuptions about his own constitutional expertise and authority, vanden-whatser-name by contrast strikes me as entirely intellectually disingenous… Her very rhetorical method is consciously constructed to falsely maintain certain things are *established* when they are in fact the very issues up for debate = as someone pointed out, the very definition of “begging the question”

    ….If the court’s conservatives choose to overturn the legislation on clearly political grounds, it would call into question the legitimacy …

    The irony is that advocates of the law are clearly the ones arguing for political reasons = not out of any particular regard or respect for constitutional authority; and that the courts CLEAR function is to determine its constitutionality – its their *responsibility* in fact. Vanden-hoven seems to suggest that its *hardly even their business* to get in the way of a congressional decree.

    She doesn’t even want to allow that “people legitimately disagree” about the issue in any genuine way…

    At issue is to what extent Congress has the authority to use an individual mandate to regulate health insurance — a question that few, until recently, expected to be controversial…

    Except for the fact that it’s been controversial *since the day it was proposed*

    http://prescriptions.blogs.nyt…..nce-cards/

    Money shot =

    In 1994, during the debate over the Clinton health care plan, the Congressional Budget Office described an individual mandate as “an unprecedented form of federal action.”

    “The government has never required people to buy any good or service as a condition of lawful residence in the United States,” the budget office wrote. “An individual mandate has two features that, in combination, make it unique. First, it would impose a duty on individuals as members of society. Second, it would require people to purchase a specific service that would have to be heavily regulated by the federal government.”

    Since the very concept of the mandate emerged in 2009 its been the lightning rod for criticism… yet KVH seems to consider all of this inconsequential in the face of liberal consensus.

    *it’s settled now*, right? Uncontroversial *cause I say so*.

    vanden-hoos creates a rhetorical flip, where political advocates make a de facto determination of the law’s constitutionality, then pre-emptively ACCUSE the court of “over-politization” in the event they should happen to determine otherwise…

    Not to put too chauvanistic a spin on it, but it’s a remarkably familiar form of feminine pre-emptive passive-agression; its not good enough to simply state your opinion and stand by it on its merits (e.g. that you believe the law is constitutional for certain reasons, and would persuade the court to consider those reasons) …but rather evade having an opinion AT ALL that requires defending altogether, and spend your energies imputing opinions and motives to your opponent that make them the bad-actor, the one failing to be “honest” in their behaviors, resorting to crass political motives.

    Frankly, I think Tribe’s one-dimensional intellectual bombast and hubris is at least has some form of intellectual integrity in it – he *genuinely believes* in his own argument.

    KVH, by contrast, I think is being a pure political hack, throwing mud on the courts, pre-empting the threat they pose, in some vain attempt to perhaps influence the courts through public political pressures… I dont think in her heart (or lack thereof) she’d buy this shit for a second if someone else was slinging it.

    Perhaps I give her too much credit, and she’s just a liberal polemical zombie. She does edit *the nation*, after all.

    1. Yes. That’s why I’m saying. It is Vanden Huevel who is the political partisan, who is arguing FOR the mandate because it is politically expedient. There’s no progressive principle that supports forced purchasing. If she was honest she would say she supported single payer, or a “public option”.

      And since she can’t make a rational argument for the mandate on principled grounds, she HAS to evade the discussion by claiming everyone else is a political partisan.

      It’s really the people on the left that are supporting this on political grounds.

      1. “no progressive principle that supports forced purchasing.”

        Agreed. The left often bitches about “private profits, socialized costs.” What the hell do they think this is?

      2. Which is ironic =

        you might recall that most ‘progressives’ considered the final bill a shameful compromise …
        (no “public option”; essentially a handout to private insurers… “Too corporate!” they screamed..)

        …Yet now, they rush to defend the Act on basically 2 grounds:

        – It’s Obama’s, and “a Win is a Win”, politically, no matter how shitty the actual policy is. “Its OUR shitty policy! And it is a step in the right direction”

        – on Principle, they *actually like the mandate for what it means*; something they don’t actually defend out loud all that often.. but the idea of *forcing people* to adopt progressive policies? They like it. They actually like the Nanny State. They may pretend at times they don’t, or say people worry too much about ‘overextension’ of government power… but deep down? They want they power to stick it to both Corporations and Uncompliant Citizens. (the selfish ones who want to make decisions for themselves..)

        No matter how much they might even understand, deep down, that setting a precedent for Big Government Authority presents risks when Team Red takes power…? They shrug that off, mostly because they think TEAM RED’s overextensions of power are always about Police State stuff like the patriot act or rendition… and that progressives and centrists will resist these things (not!)… while *their* version of Big Government? Its a Velvet Fist of Compassion. When they exercise Federal Authority, its for Good Reasons. Good Reasons which only Bad People oppose.

        This might seem oversimplified, but for real, there’s no way I can reconcile why so many liberal pundits are so severe in their defence of the Mandate as “constitutional”, while being lukewarm about the actual structure of the Act in general. The only part they LIKE is the mandate; and the main reason they like it is because it allows for muscular government intervention into whatever area congress should decide they want to stick their noses…

        1. there’s no way I can reconcile why so many liberal pundits are so severe in their defence of the Mandate as “constitutional”, while being lukewarm about the actual structure of the Act in general. The only part they LIKE is the mandate; and the main reason they like it is because it allows for muscular government intervention

          I don’t really agree with this. I think they defend it so vociferously because it is the most threatened aspect of the law, and the one most likely to result in the entire thing being taken down by the courts.

          And despite their lukewarm support for the bill initially, it’s no longer about that. It’s about Obama’s presidency. If PPACA get’s struck down, Obama suffers a humiliating blow that could likely result in them losing the next presidential election.

          Due to the Tea Party movement and the loss of the House, they are now forced onto the defensive. They CAN’T let the bill fail, or it harms their messiah.

          1. Well, you weight part 1 of my 2 part rationale more heavily than i do, but I dont think there’s any real disagreement that both issues are at work

    2. Vanden-hoven seems to suggest that its *hardly even their business* to get in the way of a congressional decree.

      Would she say the same about the Defense of Marriage Act?

      1. Or the Patriot Act?

  29. The only intelligent thing to ever come out of vanden Heuvel’s mouth was a penis.

  30. At least she acknowledges one of the precious few things that government actually excels at – making incredibly large numbers of people wait for things indefinitely.

    1. The impressive part is that they’ve brought DMV-like results to a program that has even started yet. Amazing.

      1. (has/hasn’t, same/diff)

  31. I think the mandate is constitutional, but everyone should have to admit that the activity/inactivity thing is a new area and thus it’s valid for the courts to take a look at it. It’s not self-evident I guess (though most people think the power to make rules includes the power to make rules that make you do things as well as not do things).

  32. Everyone agrees that the power to regulate would include positive commandments for those already engaging in IS commerce, right? So Congress could require that truckers all buy mudflaps with Yosemite Sam on them or whatever. It’s the idea that making someone buy makes them enter commerce when they weren’t there, right?

    1. So Congress could require that truckers all buy mudflaps with Yosemite Sam on them or whatever.

      Only when the truck is driven across state lines or into Canada and Mexico.

      As a practical matter though, few truckers would remove the mud flaps merely because they will not drive to another state.

      It’s the idea that making someone buy makes them enter commerce when they weren’t there, right?

      Yes.

      Of course, it should be noted that the Commerce Clause most likely limits Congress’s power to punish hate crimes.

    2. Re: MNG,

      Everyone agrees that the power to regulate would include positive commandments for those already engaging in IS commerce, right?

      No – because there is no such power. Congress can only regulate whatever the states do to each other, not people – the text is CLEAR on that, it is evident even to ME, a non-native English speaker.

      So Congress could require that truckers all buy mudflaps with Yosemite Sam on them or whatever.

      No, Congress can’t – but the States can.

      It’s the idea that making someone buy makes them enter commerce when they weren’t there, right?

      Not even close. This “making a person become active” is nothing more than a distraction. Actually, Congress never had the power to regulate commerce between individuals, either explicitly or even implicitly, which is why Congress and the States had to approve a Goddamned fucking AMENDMENT to the Constitution to regulate the sale and manufacture of alcohol. What changed was the series of New Deal judges that suddenly ‘deconstructed’ the interstate commerce clause before deconstructionism was fashion.

    3. Under the current screwed up reading of the commerce clause, if you are already engaged in interstate commerce, then congress can require you to do certain things – as a condition of continuing to engage in such commerce.

      I think the main problem is the absurdly broadened definition of what counts as “commerce”, basically the expansion to include things that “in the aggregate” , “has an effect” on interstate commerce.

      Seriously, what DOESN’T affect commerce on some level “in the aggregate”. Every action or inaction everyone makes every day affects the price of SOMETHING.

      I’m affecting the price of sandwiches right now by forgoing lunch.

  33. What’s at stake is not just the law itself or the fate of the tens of millions who wait for its benefits,

    Statements like this are hard to gag down, even when I’m feeling… progressive.

  34. To continue down the statist road of our friend MNG, let me state the obvious: the presence of more or fewer people in various states affects interstate commerce (more customers in New York for something exported from New Jersey). Therefore, by the sacrosanct Commerce Clause, Congress can legitimately both 1) force people to have children and 2) force people to have abortions as a means of regulating commerce.

    I don’t see how this is any different, in principle, from making people by health insurance.

    Who cares whether people have a right to be left alone (buy insurance, have abortions, whatever)? What’s important, and the real reason we came together and created a Constitution so many years ago with so many fine speeches, is that we be able regulate interstate commerce.

    Let’s not lose sight of the important things people.

    1. You’re in luck! He is arguing this pile of droops on another thread!

    2. Who cares whether people have a right to be left alone (buy insurance, have abortions, whatever)?

      Externalities. Drive on roads. Take government money. Paying pipers. Calling tunes.

      1. “Externalities”.

        Somebody say my name?

    3. Silly boy, that’s only because you aren’t aware of the magical properties of the Commerce Clause.

      What else but magic could turn “To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;” into “Each person must engage in commerce.”

    4. Yeah, I guess MNG would consider that “making rules about” those things, and since his absurd reading of the clause allowing the federal government to “regulate…commerce among the several states” requires that the rest of the Constitution be rendered meaningless, the government can of course do such things by his way of thinking.

      1. Now, now, WTF. The MNGs of the world don’t want the rest of the Constitution rendered meaningless.

        They still have a use for “general welfare” and “necessary and proper.” Oh, and “tax”.

        1. Where we are headed:
          “It’s necessary and proper for the general welfare!”

          Ex. Morning calisthenics, gym membership, church attendence, sensitivity training, sunday school, reading Das Kapital, listening to presidential speeches, having abortions, not having abortions, eating green leafy vegetables.

    5. “Therefore, by the sacrosanct Commerce Clause, Congress can legitimately both 1) force people to have children and 2) force people to have abortions as a means of regulating commerce.”

      Or force people to move to Oklahoma.

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