Obamacare

Can Idleness Be Commerce?

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American idle?

The key question in determining the constitutionality of ObamaCare's mandate to purchase health insurance is whether or not Congress can regulate inactivity under the Constitution's Commerce Clause, which gives Congress the power to "regulate commerce…among the several States." Previous cases that tested the limits of the Commerce Clause have all involved the regulation of some sort of activity: growing wheat or weed for personal consumption. The mandate, on the other hand, gives Congress the power to regulate in the absence of any activity at all: the test is whether an individual has not purchased insurance. Via The Washington Post, the activity/inactivity question came up again in yesterday's appeals court oral arguments: 

The judges also asked probing questions of Mathew D. Staver, a lawyer for Liberty University, challenging Staver's assertion that a citizen who goes without health insurance has chosen not to engage in economic activity.

Staver and other opponents of the law argue that it would be unprecedented for government to force individuals to buy a product — health insurance — when they have chosen to go without it. Congress' power to regulate commerce can't give it power to require a person to take part in commerce, they argue.

"These requirements that you think are so important, this activity, does that have a constitutional basis? What in the commerce clause would require activity?" asked Judge Motz.

This is what passes for probing questions? What indeed? How about, I don't know…the part where it gives Congress the power to regulate commerce? Engaging in commerce, which is what Congress is constitutionally allowed to regulate, would seem to require, well, activity. Failing to purchase health insurance is neither activity nor commerce. Of course, the obvious reading of the Commerce Clause would also suggest that the regulated commercial activity in question cross state lines, which inactivity clearly does not. But thanks to the substantial effects doctrine, the obvious reading is no longer preferred amongst judges. Staver's slightly more polite response: "I think it's inherent when you're talking about regulating commerce.?.?.commerce cannot be idleness." 

NEXT: Jim Wallis As a Proxy For Barack Obama

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  1. There’s an excellent hydraulic lift bondage scene featuring a young Jessica Alba in that otherwise unwatchable movie.

      1. I’d plow that into next July.

        1. Wickard requires it.

          1. The art department put her head on crooked.
            Not that anyone is looking at her head.

      2. She’s really grown as an actress.

      3. Young? Old? Who gives a fuck? Where’s the dippin’ bread?

        1. As if Sin City Jessica Alba is somehow not as hot….

          1. Right.

          2. Just watch that movie again last night on cable.

      4. Spectacular!

    1. Best part of the movie.

  2. “Engaging in commerce, which is what Congress is constitutionally allowed to regulate, would seem to require, well, activity. Failing to purchase health insurance is neither activity nor commerce.”
    _
    only to the extent one NEVER goes to an ER or say, planned parenthood for medical treatment.

    1. deal. I’ll never go to Planned Parenthood for medical treatment.

    2. even if you did, it’s still conceivable to pay for services without insurance

      1. ok then – NEVER go to an ER & ALWAYS pay for services. wanna bet

        1. I’m pretty sure the ER takes money in exchange for services too.

          Why don’t you just say what you mean: “I don’t care what the constitution says, I want government run healthcare.”

          1. well the courts will decide if ur characterization of our constitution is correct. >since indigents dont pay for the ER, they force others to subsidise the visits which is commerce

            1. But not interstate commerce. Try again.

              1. medical corps can & do operate across state lines in multiple locations. they also commerce w vendors, across state lines.

                1. I am not a vendor. Nor do I buy insurance from a company out of state. Therefore I must be exempt.

                2. And? Government can’t* simply declare an intrastate transaction to be interstate commerce because sometimes different people in different transactions engage in interstate commerce.

                  * That is, it can’t under an honest understanding of the Constitution, clearly there is nothing actually stopping it from doing so.

            2. [indigents] force others to subsidise the visits

              You’re incorrectly using “indigent” as a synonym for government.

    3. not buying in insurance – a commericial transaction is not the same as not buying healthcare – a commercial transaction.

      This is like saying because people eat, i can force you to buy a home, because most people eat in their home.

      1. or rather buying each are different commercial transactions

    4. Anal….you should probably just quit now….you are in way over your head when discussing this.

    5. Only to the extent one never goes to an ER or PP in another state, you mean.

  3. Commerce, commerce, commerce….if you keep saying it, it sort of loses it’s meaning and just becomes a sound.

    1. Inconceivable

  4. Ask a businessperson around the Christmas season if people not buying his wares is having a substantial impact on his commerce.

    1. Or better yet, ask him if he is actually doing any commerce.

      1. why him? anyway the businessperson is most likely paying wages, insurance, utilities, rent…so yes, the businessperson is engaging in comerce despite his wares not selling.

        1. With the people he is not selling to?

          1. not selling goods or services yet paying for utilities/etc is commerce.

            1. Sounds like he needs to change his business model, or expand his online store — not get the government to force people to buy his wares.

            2. Yes, it’s commerce with the utility. But the people that aren’t his customers aren’t involved in it, and even if you had the power to intervene in that interaction of the merchant and his utility, it does not follow that you can compel random citizens to become his customers.

            3. Hit & Run – Come for the crude single-entendres, stay for the tortured, circular logic of resident trolls.

    2. So therefore, congress has the power to require that people buy his wares? You really believe this?

      1. Many do believe that. Recall the mandatory broccoli hypothetical?

        1. That means that we’re going to have to jail Bush Sr. when he refuses to purchase that which he loathes.

          1. It tried to kill him so you can’t blame him.

            1. Details, details. When the state mandates, you do.

      2. Yes. There is nothing that is outside the reach of government regulation. These are people with PhDs from Harvard who have never held a job that wasn’t paid for by taxpayers, which makes them extremely well qualified to speak on matters of economics. Do not question your betters, serf.

        1. Sorry, but you boss-worshipers can’t pull off the too-cool-4-skool anti-authoritarian jibes.

    3. And he’d say no, it’s having an effect on my revenues and inventory, neither of which are synonymous with “commerce.”

      1. Commerce doesn’t mean business or trade? When they used the word commerce they meant “doing business with.”

        1. find me any action or lack of action that doesnt have an effect on commerce then?

          Furthermore, I’m waiting for you to list me 5 things that are commerce but not interstate commerce.

          1. Lopez and Morrison noted instances of activity that does not qualify.

            1. Nope, not five. And what about ‘substantial effect’ doctrine? The lack of consistency doesn’t bother you?

            2. Lopez wasn’t even commerce at all.

              1. That’s the point, in both cases things were found outside the scope of the commerce clause. So all the arguments below to the effect “but it will mean limitless powerz!” are wrong. There are two clear limits right there.

                1. No MNG – you are didging the question. “Commerce umongst the states” means there is commerce that isnt. List me 5 things that are commerce but are not “amongst the states”

                2. Lopez wasn’t commerce (much less interstate commerce) because nothing was purchased. The same can be said for the non-purchase of health insurance.

            3. but neither of those are in violation of the substantial effec doctrine. Tell me again 5 things that are commece that are not interstate in that they do not have an effect on commerce? If everyone placed a gun store near a school, that would surely have an effect.

              1. Hey #, it’s probably too late, but the FUCKCUNTS in DICKSUCKING CONGRESS and on the Supreme Court have been expanding THE MOTHERFUCKING COMMERCE CLAUSE for TOO FUCKING LONG. And so, its’ time to STOP. And, it would appear to me that requiring FUCKING ACTIVITY, might be a good place to DRAW THE FUCKING LINE!! MOTHERFUCKERS!

                1. Ah, the rationality is strong in this one. It’s clear to see why anyone who is not persuaded is clearly either dishonest or stupid!

                  1. Thanks Yoda. I do recognize that it was not my most rational argument. And that it will be a sccessful as my most rational argument; wehn I told my wife that I have to buy guns because she won’t let me sleep with young women. Paid for of course. I mean, the women.

                2. dont hold back dude. say what u really mean

          2. Masturbation….dry……in a dark closet……in a home you don’t own or rent.

            1. Wrong. You have failed to stimulate the economy by paying for a hooker.

        2. When they used the word commerce they meant “doing business with.”

          Hung by your own petard, son. You already conceded in the hypothetical that I am not doing business with the businessman.

        3. Now go ahead and move the goalpost a bit. I’ll wait.

          1. Now go ahead and move the goalpost a bit. I’ll wait

            You shouldn’t have to wait long – he’s a pro.

        4. If people aren’t buying his wares, he’s not doing any business, and he’s not trading goods for money, thus, no commerce.

          Nobody is coming by my house and buying my old magazines and comic books either.

          1. But don’t you get it Joe M? When I have sex with my wife that means I’m not having sex with other people’s wives. And I’m not buying condoms to protect myself when I do. So Obama and Co. can require me to have sex with MNG’s wife, you know, to stimulate commerce.

            1. pretty much.

            2. But what if his “wife” is a 14-year-old blonde boy named Sebastian? There are limits to the coercion most people are willing to take.

              1. Address please.

            3. Are you talking about Tony?

        5. so another question MNG. If I decide to retire, than i am having an effect on commerce. Can cognress pass a law then that says i must work? Furtheremore can it be that i must work for a firm that that government tells me to?

          1. Really, the best way to stimulate the economy would be to have people work without being paid. It would cut costs tremendously.

            1. don’t think this is that far off of a hypothetical. After all these health “reforms” blow up and there are severe doctor shortages i can invision laws that begin to conscript doctors into service with the ICC being the justification.

          2. The labor market is an interstate one, a classic example of an interstate market. So yeah they could regulate retirement. I don’t think they should but it’s reasonable to think that falls under the power the text grants.

            1. Wonderful, at least some honesty here. The commerce clause grants the power to push people into slavery.

              1. Which should frighten a consequentialist like MNG. Not that it does. It’s just unadvisable to him.

              2. er, regulating retirement (a legal concept when certain benefits and things are due) doesn’t necessarily mean forcing people to work.

                1. regulating retirement (a legal concept when certain benefits and things are due) doesn’t necessarily mean forcing people to work.

                  But since you claim ‘rules’ include mandates, they do have the power to force people to work, so you agree this would be allowed, no?

            2. So just to be clear, you believe that the commerce clause gives the government the ability to force a person to work, in the job it wants, and at the rate of pay it sets. Is that correct?

              1. Someone review my diatribe above and tell me that I was wrong to lose it like that.

                1. Someone review my diatribe above and tell me that I was wrong to lose it like that.

                  You won’t hear it from me.

              2. So just to be clear, you believe that the commerce clause gives the government the ability to force a person to work, in the job it wants, and at the rate of pay it sets. Is that correct?

                If the answer to that is “yes”, that would mean that the Commerce Clause actually overrides the 13th Amendment. Damn, that is one powerful clause, crushing all before it. I’m left to wonder why the rest of the Constitution was even written; it seems superflous.

              3. He’s more or less admitted this before, specifically in the case of compelling doctors to provide care. We went over all this territory a couple years ago.

              4. For example, jury duty and conscription into the military (which hasn’t been repealed, since Selective Service has not been disbanded).

                Basically, in MNG’s world, we are all slaves of the government. Sometimes we might get paid.

                1. Again, off the high horse. I think a lot of things are constitutional that I might not support.

                  1. On the flip side, you support a lot of things which are unconstitutional. Zing!

                  2. MNG, your view of what is constitutional works only if you accept the proposition that the meanign of the Constitution and the amendments has changed since the time they were ratified. I.e., what we can interpret the words to mean today is what it means, regardless of whether that interpretation is in any way at all consistent with how the words were understood at the time of ratification or even for decades afterwards. I.e., that the meaning changes from time to time, based on contemporary sensibilities or exigencies.

                    Which would basically render the written document moot. It might as well be mostly blank, if we can decide the words mean whatever we think they mean, rather than accepting that the words were put together in a particular way, and had generally understood meanings, which established and communicated fundamental, immutable principles. Your infinitely flexible “standard” leaves the words subject to broad ranging intepretation – an eventuality that both Madison and Jefferson, at the very least, expressly cautioned against.

    4. “Ask a businessperson around the Christmas season if people not buying his wares is having a substantial impact on his commerce.”

      Ah yes, so therefore, Congress has the ability to fine people for not purchasing ANY “wares,” at any time.

      To hell with a limiting principle I guess.

    5. I don’t check the comments as much as I used to, so please pardon me for being out of the loop. Did you actually manage to become even more stupid somehow?

    6. Commerce? What commerce?! You see any customers on my floor? You must be outta your mind, pal!

    7. You don’t really believe this. You are too smart for that. Come on, just admit that you don’t give a fuck what the Constitution says. Otherwise you are just a goddamned liar. Seriously, I am so fucking sick of this shit. Interstate commerce is two or more people, who are located in different states, engaging in an economic transaction. There is no other reasonable reading of those words, and you damn well know it.

      1. In MNG’s world, “reasonable” means “an interpretation that allows Obamacare”. Anything else is unreasonable.

        1. Show me where I have supported Obamacare or STFU. Saying Congress has the power to do X doesn’t mean I think they should.

          1. I disagree, I think that is exactly what it means. If you give congress the power to do something, they will do it.

    8. I’ll go burn down a factory, and that will have a substantial impact on manufacturing. So is arson now manufacturing?

  5. definition of commerce:
    The activity of buying and selling

    1. But not buying and selling has a substantial effect on commerce, so we can ‘make any damn rules we want’ about that too. Or anything at all – the Commerce Clause was intended to provide the federal government with limitless, unchecked power! YIPEE!

    2. Did you catch this x,y?

      1. Yes, but by the terms of your own hypothetical there is no buying or selling going on. Oops.

        1. “people not buying his wares is having a substantial impact on his commerce.”

          Oops right back to ya double letters. Would you say this businessperson would not think people not buying his wares is having a substantial effect on his business of buying and selling?

          1. First you said there is no buying and selling involved. Then you pointed me to the definition of “commerce” as “the activity of buying and selling.” These are your own words and your own hypothetical, you should at least try to be consistent.

            1. People not buying and selling is a critical component of commerce.

              Consider that commerce tends to refer to buying and selling in the large scale (i.e., national commerce). Certainly when people are not buying and selling that is a big deal to such commerce.

              1. You can’t define commerce, as you did, as the “activity” of buying and selling, and then turn right around and say, as you did, that not engaging in the activity of buying and selling is commerce. Unless you’re an idiot, that is.

                1. I didn’t supply the definition, I pointed to the buying and selling. People act like commerce only refers to a voyage to trade silk of something.

                  1. You are absolutely dead to rights, lock stock and fucking barrel and full monty fucking BEAT, MNG. You are the wrongest motherfucker on the planet.

                    1. Wow, well when you point it out so eloquently and logically, how could I disagree?

                  2. Uh, I know you pointed me to the definition. That’s why I said, “Then you pointed me to the definition of ‘commerce’ as ‘the activity of buying and selling.'” What I’m saying is you provided the hypothetical and also directed me to the definition of “commerce” I should use. So I did, and in the process pointed out that you haven’t a leg to stand on.

              2. So, buying/selling is commerce, and not buying/selling is commerce, and everything is totally connected and shit man so it’s all interstate.

                So your position is that the Commerce Clause is basically Congress’s Enabling Act, giving them limitless power. You petty little fascist fuck.

                1. Oh fuck you Mr. High Horse. I’ve opposed the mandate from day one. I just don’t think it is unconstitutional.

          2. so because people leaving this country has a substantial effect on interstate commerce, the federal government can prohibit anyone from leaving?

            welcome to north korea

            1. Dude, I hate to break this to you but Congress has the explicit power to restrict people from entering and leaving the nation without any reference to the Commerce Clause.

              1. Yes, but as we’re talking about justifications under the commerce clause power, the hypo was used in those terms.

                You are correct that Congress can restrict the movement of people into and out of the nation. But according to the question asked, can Congress do this using the Commerce Clause as justification?

                1. but this also brings up another point that I’d like to ask MNG. What is the point of all the other listed powers if everything fits under interstate commerce?

                  1. Well, I’m not convinced that the current reading undecuts the enumeration of powers.

                    1. then what do any of the other powers do that isnt already included in ICC? Where the founders trying to be repedative?

                    2. Why don’t you name an enumerated power that they could do under the current reading of the commerce clause?

                      Name five.

                    3. 1. “To establish Post Offices and post Roads;” – the delivery of mail of the non delivery of mail has a substantial effect on commerce

                      2.”To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries;” – intellectual property right have a substancial effect on commerce

                      3.”To coin Money, regulate the Value thereof, and of foreign Coin, and fix the Standard of Weights and Measures;” what system of wieghts and measures and what currency is used has a substantial effect on commerce

                      4.”To provide for the Punishment of counterfeiting the Securities and current coin of the United States;” the counterfitting of money has a substantial effect ont he value of currency and therefore comemrce

                      5.” To define and punish Piracies and Felonies committed on the high Seas, and Offenses against the Law of Nations;” – Piracy has a sustantial effect on sea bearing commerce

                      6.”To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years;” – the lack of proetction and security has a substantial effect on comemrce, so congress can force conscription taxes and other laws to raise armies in order to regulate commerce

                      6. “To provide and maintain a Navy;” ditto with the navy…

                      must i go on? – i can do the same thign with courts, and borrowing clause too.

                    4. Ah, but in Lopez and Morrison this kind of logic was rejected. Notice how close the piracy one is to both of them!

                    5. discredit all all of these – try

                    6. tell me how setting a standard for weights and measures doesnt fit into you argument about the ICC

                    7. I just did, above, one minute prior.

                    8. not seeing anything? what are you reffering to?

                    9. you said mentioned piracy – lets assume for second that you are right, how do you explain weights and measures not being commerce? or pattents? or the post office?

                    10. Or put in your words how are three three not included in this: “Under Lopez and Morrison I would say no. It has to be a directly, primarily economic matter.”

                    11. Does “with foreign nations, and among the several states, and with the Indian tribes” mean anything?

                      I notice it doesn’t say among the citizenry.

                    12. There go the goal posts!

                    13. By saying this you are demonstrating your near-complete ignorance of what Lopez and Morrison actually held, MNG.

                    14. ^THIS^. Very much this.

                    15. No, in Morrison and Lopez, the purported effect on commerce was ruled to be too remote, tenuous and speculative. In short, the court in Lopez concluded that Congress had not published any findings that showed that a person possessing a gun within 1000 feet of a school had some kind of demonstrable or articulable link to or effect on interstate commerce, such that Congress could regulate the activity of possessing a gun within a school zone. The court did not reject the general concept of Congress regulating something that, in the aggregate, has a “substantial effect” on commerce. The issue was that the Court ruled that Congress had not demonstrated what substantial effect possession of a gun in a school zone had on interstate commerce.

                2. Under Lopez and Morrison I would say no. It has to be a directly, primarily economic matter.

                  1. once again 5 things that are commerce that are not interstate commerce… still waiting.

              2. entering yes… but leaving?

              3. Does it? Entering, sure, but leaving?

              4. Care to point out where in the Constitution it says I can’t leave the country without Congress’ blessing?

                Or enter the country?

                1. If I go to an unguarded section of the border between Montana and Canada and take one step across it, have I committed a crime? Where in the Constitution does it give Congress the enumerated power to make this a crime, for a citizen or a non-citizen? If I then take a step back across the border into the U.S. — still a crime? Where does this power come from?

          3. Where does the Constitution empower Congress to regulate activities that have a “substantial impact on” commerce? Or, more to the point, lack of engaging in activity that *would* have a substantial impact on commerce, if you did engage in it?

            I simply cannot fathom how any rational, thinking, literate human being, with a reasonable understanding of the history of the Constitution and the philosophy of the men who created it, could read “…to regulate commerce among the several states” and legitimately and genuinely conclude that this conveys a power to require an individual to buy something when that individual is not otherwise engaging in or conducting commerce among the states.

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

      who knew it also meant sex?

      The answer to her question is in the definition. Which means she doesn’t know the definition of the word. It should be a prereq that judges actually know the deifinitions of words in the laws they are dealing with.

    4. com?merce noun \?k?-(?)m?rs\

      : the exchange or buying and selling of commodities on a large scale involving transportation from place to place

      Synonyms: Trade
      Antonyms: Nonintercourse

  6. “Engaging in commerce, which is what Congress is constitutionally allowed to regulate, would seem to require, well, activity.”

    But it doesn’t grant a power to regulate “engaging in commerce” it grants a power to regulate commerce. Rules can be prohibitions or mandates, everyone with a mom knows that.

    1. Actually, I don’t recall if you ever answered the question posed of you the other day. Since the constitution specifically mentions commerce among the several states, then there must be commerce which is not covered by that, otherwise they would have just used the word by itself, without qualifiers. So what is an example, to you, of commerce which could not be regulated?

      1. I wouldn’t hold my breath waiting for his reply to this one.

      2. I’m still waiting for this answer from him.

      3. Well yes our modern economy is one nationally integrated to an incredble degree.

        I don’t think I’ve endorsed Wickard/Raich btw, I prefer some definite connection to interstate commerce.

        1. but even in 1790 if there was a shortage of wheat in Boston is sure as hell would have an effect on its price in New York. That still doesnt change anything.

          1. in other words find me a commercial act in 1790 that didnt have a substantial effect?

            1. The substantial effects doctrine is troubling for sure. I understand the logic behind it (if Congress can’t touch this and everyone turns to it then it would undercut what Congress has the power to do from the text).

              I think I would try to limit it by 1. making the “substantial” part be proven to a high degree by the government, and not in a hypothetical sense and/or 2. I would stick to the approach in Heart of Atlanta Hotel v. US where there had to be an actual showing of some interstate activity invovled to fall under the clause.

              You know, you would have to answer some similar questions with your reading. What interstate commerce could be effectively regulated by Congress is they could not touch intrastate activity that had substantial effects (surely it doesn’t grant an impotent power)? Maybe I should be equally pedantic and ask you to name five!

              1. it would be just like what occured prior to the new deal – the fed had the power to creat rules governing the movment of goods between people indifferent states.

                So for instance, they could require all food products being sold between states to have nutritional lables. But they could not do so if it was sold only in one state. Thats the kind of power the clause grants. And thats exactly how it was upheld almost unanimously until FDR stuffed his court.

                Even progressive hero Louis Brandeis joined the majority striking down the NRA. It wasnt until these people all died or retired that FDR filled the court with peopel openly hostile to the constitution.

                1. The federal government was not intended to have enless power to regulate commerce even if that inability ment people like you couldn’t do things you wanted it to do.

                2. Can’t name five, eh?

                  1. Looks like you have plenty of kinks to work out in your reading as well. Get back to me when you’ve done that.

                    1. MNG, just be a man and admit you were wrong about this one. No one will think less of you.

                  2. there are all kinds fo things that only happen within a state – you miss what mine/ our point. The goal of that power is not to giev what ever power is required to regulate commerce – only things that happen between the states and therefore any given one state cant do it.

                    So you want 5 things?

                    1. the wage im allowed to work at within the state i reside.

                    2. health inspections dealing with food I sell within a state.

                    3. Work saftey rules at a factory

                    4. The wheat, pot anything else i grow on my own property!

                    5. Alcohol production and sale of in my state.

                    I can list a lot of stuff that isnt insterstate commerce. What are you trying to get at?

        2. Not buying health insurance has no connection whatsoever to interstate commerce. You aren’t even allowed to buy insurance from out of state, for fuck’s sake. And you receive medical treatment where you are, not in another state.

          Why shouldn’t a person be allowed to simply forgo medical treatment? Or pay for it themselves out of pocket? The first is not commerce in any sense and the second is not interstate.

          This is so fucking stupid. Black is white. UP is down.

          1. You’re just plainly wrong. People get out-of-state medical care all the time (i.e., going to a specialist out of state, or going to the doctors when on vacation). And while you have to buy an in-state policy you buy it from a national or regional company 9 times of 10.

            There is a reason why afaik none of the current lawsuits talked about are trying to argue it ain’t interstate commerce.

            1. No, people generally receive medical care in the state that they are in when receiving said care. It doesn’t matter if the live in a different state. The commerce is all happening in one state.

              1. OMG, dude. Do you realize what a blunder you just made Mr. The Words Are So Clear You Are An Idiot To Not See It?

                Name one act that would be interstate commerce under your definition. I mean, even if I ship goods over several state lines they are unloaded and purchased in one state!

                Jesus christ.

                1. Selling something to someone in another state is interstate commerce, even if there is an intermediary. If I go to a doctor in another state, and pay in cash, the transaction takes place between people who are both in the same state.

                  How about you take a crack at my other response to you. What if I simply forgo medical care and if I get sick and die, so be it?

                  1. In almost all transactions the money is exchanged and the goods unloaded in a single state.

            2. And you still haven’t addressed the fact that some people might just not get any medical care at all. That is a perfectly conceivable thing. How are those people engaged in any sort of commerce, interstate or not?

              1. So Christian Scientists, who explicitly reject the notion of health care, unless that means sitting in a CS reading room and waiting for God to heal them, must be forced to buy health insurance?

                1. So Christian Scientists, who explicitly reject the notion of health care, unless that means sitting in a CS reading room and waiting for God to heal them, must be forced to buy health insurance?

                  According to Judge Kessler, yes, they do, because forcing them to buy health insurance does not violate their faith, and even if it does, it doesn’t matter because it’s in the government’s best interest.

                  …the Court concludes that (1) ? 1501 does not
                  place a substantial burden on the exercise of Plaintiffs’ Christian
                  faith, and (2), even assuming that it does, it is the least
                  restrictive means of serving a compelling governmental interest.

    2. “I am still going for the gold in the retard Olympics.”

      1. What happened to ARF, ARF? Shift key broke?

        1. I prefer less clever insults.

        2. C’mon, you know that’s reserved for Max.

        3. How about, “Oh shit, I’m gonna PUKE!!! BLLEEAAAARRRGGGGGHHHHHH!!!!! ACK ACK ACKK!!! HAWK!! Spit.”

    3. To those who are not insane or dishonest, commerce constitutes an activity.

      1. This is the mark of the fundamentalist, he is so certain in his beliefs that those who disagree are either crazy or evil.

        1. Right, so going into insane contortions to define a lack of activity as ‘commerce’ is somehow NOT ‘fundamentalist’? Wow.

          1. I don’t know what to tell you, many reasonable people think that deciding not to buy and sell is an economic decision.

            1. An ‘economic decision’ NOT to buy or sell something is not ‘commerce’. And certainly not commerce…among the several states…

              1. good distinction between an ‘economic decision’ and ‘commerce’.

              2. An decision not to make an economic purchase in what is largely an interstate market reasonable falls within the idea of the “commerce among the states” that Congress has the power “to regulate.”

                Now your turn. Do you really have a concept of the “power to regulate” that does not include the power to make mandates? That strikes me as not ordinary.

                1. An decision not to make an economic purchase in what is largely an interstate market reasonable falls within the idea of the “commerce among the states” that Congress has the power “to regulate.”

                  So not engaging in commerce is the same as ‘commerce among the states”? Okay, you win, and war is peace, love is hate, freedom is slavery and up is down. Holy shit.

                  1. Now your turn. Do you really have a concept of the “power to regulate” that does not include the power to make mandates? That strikes me as not ordinary.

              3. Even an economic decision TO buy or sell something is not commerce. The actual act of buying and selling commodities (involving transportation from place to place) is commerce.

                Deciding you are (or are not) going to do something is not the same thing as actually doing it.

            2. “I don’t know what to tell you, many reasonable people think that deciding not to buy and sell is an economic decision.”

              According to your reasoning, a company that sells cars for example, when refusing to purchase tires from Company X, is engaging in commerce with Company X, merely by refusing to purchase from Company X. Therefore, all companies, and all individuals, are engaged in commerce with all other companies and individuals, at all times.

              1. hence why the government can tell us when we take a shit.

              2. You’re making the original mistake I criticized, reading “engaged in” into the clause. It just says the power to regulate commerce. Not the power to regulate commerce being engaged in. You can make rules about commerce that impact existing activity or you can make mandates regarding participation. All that seems to plausibly fall under the meaning of the words used.

                1. There is no commerce if no one is engaged in any commercial activity. It’s not hard to understand.

                  1. If you had the power to regulate your children’s activity are you saying you could not tell them to get off the couch and do the dishes?

                    1. 1. If you were legally constrained to regulating a particular activity of your children, such as ‘bedtime’, then no, you couldn’t legally just make them do whatever you want regardless of the legal constraints.
                      2. We are not the government’s fucking children, as much as you statist fucks would like it to be the case.

                2. Can Congress require you to purchase tickets to tractor pulls?

                  1. God I hope not.

            3. Those “reasonable people” are all either fucking liars or they don’t care what the Constitution says. The words say what they say and it is pretty fucking clear.

              1. That’s right, the words clearly state that Congress has the power to make rules regarding commerce. Rules can be mandates.

                You’re right, it is very clear. Unfortunately it’s you that come off as dishonest (or more likely blinded by your ideological antipathy to the possible results of the clear reading).

                1. “The Constitution is just a conservative meme.”

                2. Does the fact that my tear ducts function properly, thus alleviating me of the need to purchase eye drops, count as commerce then? I’m choosing not to purchase eye drops, which by your definition, is commerce and can be regulated. Can congress force me to buy eye drops? If no, why not, and how does that square with your thoughts that a decision not to engage is also commerce under the constitution?

                  1. Under universal healthcare, you will be provided eye drops rather you need them or not Jim. And this will mumble mumble cost curve mumble profit-motive mumble paradise.

                3. No, wrong again. Regulating commerce means that they can make rules which apply to people who are actually engaged in commerce. Not to force people to engage in commerce who wouldn’t otherwise do so. That reading is just absurd.

                  1. Again, if a parent has the power to regulate their children’s after school activities then they don’t have the power to make them engage in something? That seems an odd reading to most people, I guess they are crazy or dishonest, huh?

                    1. Again, if a parent has the power to regulate their children’s after school activities then they don’t have the power to make them engage in something? That seems an odd reading to most people, I guess they are crazy or dishonest, huh?

                      First off, nice to see your paternalistic side come out.

                      More to your point, if a parent has the power to regulate their children’s after school activities, then they don’t have the power to force them to engage in Little League baseball during school hours (or if they do, it’s a different power). This is true even if the play of the during school hours teams will have a substantial affect on their after school activities.

                      More importantly, you are simply assigning the word regulate to mean what you want it to. A parent has control over their kid’s life, not regulatory authority, and I know of no parent-child relationship that comes with a power-limiting constitution. The parent-child relationship is much more analogous to a (hopefully benevolent) dictatorship than a limited democracy.

                    2. Dude, you are straining and I suspect you know it. Ask most people you know without an ideological axe to grind if the power to regulate their kids after school activities would encompass the power to make them engage in an activity.

                    3. Way to completely ignore the after school distinction.

                      Also, considering you are the one turning “To regulate Commerce with foreign Nations, and among the several States, and with the Indian tribes” into “to force individuals not engaged in commerce to enter commerce in a market that is completely in one state”, saying I’m straining is bullshit.

                      Who describes parents’ power over their kids as regulation?

                    4. It’s not a valid analogy. “Activity” is a word that could apply to absolutely any conceivable use of time, so there unless your kids are dead, there is no distinction between a mandate, a prohibition, or a restriction. Commerce is a very specific thing which may or may not exist.

                      Moreover, you’re deliberately skewing the results by trying to use as an analogy a situtation that most people think of as basically dictatorial.

                      Try asking people that believe the government has the power to regulate drug use whether the government can force people to take drugs.

                    5. I would call the power to make them engage in a certain activity something else, actually. Regulation has to do with the activities people are already engaged in. Compelling them to do some specific thing is different. Regulations are the sort of rule that says “if you do X, then you must also do Y”, not “You must do X”.

            4. So, as I understand it, right now I am engaging in commerce with GM, Ford, Walmart, Amazon, the lawn guy working in the neighbor’s yard, and every entity in this country that sells something, even though I am purchasing no good or service from any of them. Is that the argument you’re really trying to make, because that’s so retarded on its face I’d hate to accuse someone of saying something so patently absurd without his confirming that that’s what he means.

              1. Night Elf,

                You are correct, that is essentially the argument. You are, in effect, engaged in commerce for blue jeans, HDTV’s, battleships, cattle, and everything else under the sun, just by sitting there. You are making a decision not to engage in the activity of purchasing these things, and so you affect the commerce of these items.

                Good luck trying to find a limiting principle in that mess of an argument.

              2. It’s Schroedinger’s Commerce Theory.

                Right now, there are an infinite number of you engaging in commerce in any number of universes, even in the universes where you’re dead of never existed, since not engaging in commerce is commerce.

                This is true except in Bizarro universe. Me not buy commerce there.

            5. I don’t know what to tell you, many reasonable people think that deciding not to buy and sell is an economic decision.

              So, reasonable people think that thoughts in one’s head that result in no activity are commerce? A Zen master who is sitting there trying to empty his mind and not think at all and just be is engaging in interstate commerce?

              This is what “reasonable” people think? If so, what would they have to think to become “unreasonable”?

              1. Also, MNG, why do you keep bringing up the parenting analogy? In what universe can I imagine the state as my “parent”, in order to make the comparison make sense?

                1. boy, the parent analogy really riles you guys up. OMG TEH GOVERNMENT IS NOT MYES DADDY!

                  Dudes, relax, I’m doing something called an “analogy” and I chose a situation where I think the authority will be uncontroversial so that you can see that when applied in a different setting the same principle is in play.

                  The point is that when someone is given the “power to regulate” something they would find the power to make mandates included in that power.

                  1. Also, I’d like to throw out this disclaimer: I think the entire con-shit-ution is a piece of garbage statist rag that needs to be burned, and it makes me sick that we have to argue over the meaning of a couple of words, and that the outcome of that argument will determine a massive amount of federal power. Fucking disgusting.

                    Out of my system, thank you. Carry on.

                  2. “Dudes, relax, I’m doing something called an “analogy”…”

                    We know full well it’s an analogy, we just think it is an awful analogy, that reveals more about your mindset then it does about proper constitutional powers.

        2. This coming from someone so certain in his beliefs he thinks inactivity meets the definition of commerce…among the several states…

          1. I’m not sure I’m so certain. It strikes me as plausible.

            1. Because I’m feebleminded.

            2. Cognitive dissonance when you’re losing an argument must be a bitch, MNG.

              And interstate commerce.

        3. So leftists and Democrats must be fundamentalists!

        4. MNG, let me be clear: your understanding of the commerce clause is either crazy or evil. You support dishonestly twisting language (language with a plain, contextually reasonable meaning) to enable limitless government, which inevitably leads to totalitarianism and tragedy.

          Interstate commerce = economic transactions when the parties reside in more than one state. Period.

          The fact that the Supreme Court arbitrarily made up “doctrines” that expand Congressional power beyond what the Constitution dictates is irrelevant — there’s nothing stopping the Supreme Court from making up a “doctrine” that says “the Bill of Rights is null and void”. It would still be illegitimate.

          1. “Interstate commerce = economic transactions when the parties reside in more than one state. Period.”

            Period? What about if I sell you baloney that is shipped to me from another state?

            And don’t say, “well the sale only took place in one state” because then if I go to another state to buy baloney that is not interstate commerce (because hey, I gave the money and he gave the baloney in one state, right?). And now we are entering goofy town.

            1. The goods crossed state borders for the explicit purpose of facilitating an economic transaction between a resident of one state and resident of another. It’s not some fuzzy bullshit butterfly-flapping-its-wings relationship. The law is already required to identify quid pro quo in other contexts.

              However… if the baloney was sold to you rather than merely shipped to you, then only the first transaction (between you and your out-of-state wholesaler) is interstate commerce, the intrastate baloney retail is not. It’s true that it is indirectly but substantially impacted by interstate commerce, but by the same logic, if Congress wants to do something about it, a regulation on the original sale would have an indirect but proportionally substantial regulatory effect.

              1. In context of health care law and the baloney example. I have to ask, how much baloney can the government mandate you buy?

      2. Nuh uh! “Swimming” also means “laying by the pool.”

        1. By Minge logic ‘swimming’ also means deciding not to go near any water, since that could have a substantial effect upon swimming.

          1. I am having trouble selling swimming pools due to your non-swimming non-activity. ICC to the rescue!

  7. Maybe “activity” means real as well as potential action. When one considers whether to acquire some of that health care, is he not engaging in an activity? An activity that may be regarded as potential commerce? What good is a commerce clause if it has to wait around for actual commerce?

    1. When one considers whether to acquire some of that health care, is he not engaging in an activity?

      So now they’re going to regulate what we THINK about health care and insurance and those annoying State Farm and Geico and Progressive ads?

  8. Subscribe to REASON now or face my wrath!

  9. The obvious solution here is to amend the Constitution to narrow the scope of the Commerce Clause to its original intent, given that said intent has been perverted to further the ends of the statists.

    1. good luck getting a majority of congress and 3/4 of state legislatures to do that.

      1. Half the states are already suing the adminstration over Obamacare.

        1. that’s gonna change esse

    2. original intent or original meaning?

    3. +100

      I’ve said this before. You’re problem is with the Founders for writing the Clause with many plausible meanings. If you don’t like it there is an avenue to change it that the Founders were helpfully more clear about.

      Of course an even easier solution they left us was to not elect people who would use the commerce power in such stupid ways.

      1. I don’t think anyone here has a problem with the way the ICC is written, just with the way it’s meaning has been perverted. I blame the SCOTUS, statist politcians, media enablers, and an uneducated population.

        1. I’m not uneducated.

          I’m just a retard.

          1. Are you really 15?

      2. “You’re problem is with the Founders for writing the Clause with many plausible meanings. ”

        Every clause has an infinite number of meanings if people are allowed to simply redefine each word as they please.

      3. You’re problem is with the Founders for writing the Clause with many plausible meanings.

        “plausible” =/= “twisting words around to mean their opposite using Orwellian doublethink”

        If SCOTUS in a 5-4 decision says that the Bill of Rights is null and void, does that mean that decision stands unless we amend the Constitution to explicitly overturn that ruling?

        1. The clause reads Congress has the power to regulate…commerce among the states. How is it Orwellian to read that to mean Congress has the power to make rules regarding commerce among the states? And how is thinking that making mandates falls into the power to make rules about something Orwellian?

          1. How is it Orwellian to read that to mean Congress has the power to make rules regarding commerce among the states?

            It’s not, but that’s also not what you’re doing. You’re reading it to mean making rules regarding no commerce between individuals entirely in one state.

          2. It’s Orwellian because:

            (1) It’s completely divorced from the original public meaning, i.e., what the people actually ratified — they understood the word “regulate” to mean something rather different than what you insist is its plausible definition; and,

            (2) It has no meaningful limiting principle, Lopez and Morrison notwithstanding, and thus undermines the Constitution’s animating purpose, i.e., to constrain centralized federal power.

  10. it would be unprecedented for government to force individuals to buy a product

    ETHANOL

    1. no, thats another condition argument – still crap but its within precident. No one if forced to buy ethonal for breathing – you are froced to buy ethanol if you want to buy gasoline.

    2. inoculations for kids

      1. Again, no one is forced. Their kids might not be allowed to attend school, but that is a state issue, not a federal one.

  11. and theyd just find another excuse to do the things they do. Its not liek they actually think this what the commerce clause meant and means – its just the excuse. The power to set up courts justifies mandating health insurance right?

  12. If the government can make us buy insurance, they can make us shop at Wal Mart. And we all know what’s next…

    1. Polyester pant suits.

      1. …to wear at the next TRAKTOR PULL!

        1. We’d never go to such a low-brow gathering as that.

    2. Singing bass in everyone’s living room?

    3. TRAKTOR PULLZ! They can make us attend tractor pulls!

      1. DING DING DING

  13. Unfortunately, I doubt that the activity/inactivity argument will win the day.

    For one thing, SCOTUS as already approved regulation of commercial inactivity. That old guy growing wheat and feeding it all to his animals? He did not engage in any commerce (buying, selling, transactions, etc.), but he could still be regulated.

    Many economic regulations require you to engage in commerce that you might not otherwise have anything to do with. A manufacturer without emissions controls is inactive in the emission gizmo market, yet is required to become active in that market.

    And saying that, well, he is active in a different market means we can require him to be active in the emission gizmo market is no answer, because we are all commercially active somewhere.

    No, the Rubicon of plenary federal power over the economy is not in front of us in the form of ObamaCare; its is behind us, crossed during the New Deal.

    1. He still had to grow the fucking wheat.

      1. not if the farmer took Ag offset payments

      2. Growing wheat is not commerce. Commerce is trade, buying and selling, transactions.

        He was not engaged in any commercial transaction with respect to wheat. He was commercially inactive, but SCOTUS greenlighted federal regulation of him.

        1. +1

          I’ve said it all along, you can’t get much out of this inactivity thing unless Wickard and Raich are overturned.

          1. And what libertarian here (I’m excluding Max, Edward, Lefiti) doesn’t want that?

          2. I’ve said it all along, you can’t get much out of this inactivity thing unless Wickard and Raich are overturned.

            I fail to see how that’s a problem.

          3. You have a point, but Wickard and Raich are travesties of justice in and of themselves.

        2. I couldn’t agree more, but even with the expansive definition of “commerce” in Wickard, you can’t shoehorn in the idea that if the guy hadn’t been growing wheat that the federales could command him to do so. Under Obamacare’s interpretation, that is obviously a real possibility

    2. So we’re stuck here? That pisses me off!

    3. As much as I hate ObamaCare, based on the relevant case law I’ve perused, the issue isn’t activity vs. inactivity. It’s the necessary and proper clause. If the thing being regulated falls under the commerce clause (and I think most everybody would agree that health insurance qualifies as interstate commerce) then, as part of the regulatory scheme, Congress can take actions that would otherwise fall outside the scope of the commerce clause so long as the actions are necessary and proper to the larger regulatory scheme. As such, the question is whether the individual mandate is necessary to regulate health care. I would argue it’s not, but that’s where the debate should be taking place, not whether inactivity can count as activity.

      1. I think most everybody would agree that health insurance qualifies as interstate commerce

        I don’t. If I buy insurance from a company in my state, where is the interstate commerce?

        1. “”If I buy insurance from a company in my state, where is the interstate commerce?””

          I don’t disagree, but SCOTUS has already made that moot in Raich.

    4. You are incorrect in your framing of the activity/inactivity argument.

      In Wickard, the case you refer to, the act of actually growing wheat was an activity. The question was whether the growing of wheat, even if used on the farm, was an activity in commerce. The court said yes.

      Here, there is no activity. It’s a refusal to engage in an activity that is in question. The pro obamacare argument is that not purchasing health insurance is an activity that should be regulated.

      In Wickard, the farmer, if he wanted to escape the commerce clause power, had an option, and that option was not to grow wheat. In the health care debate, there is literally no way to escape the commerce clause power claimed. There is no activity that can be stopped in order to not fall under the commerce clause regulation, unlike Wickard.

      1. Alex, what SCOTUS did in Wickard was allow the regulation of commercial inactivity by redefining “interstate commercial” to include non-commercial intra-state production.

        They didn’t directly address activity v. inactivity, but achieved exactly the same result of regulating commercial inactivity.

        In Wickard, the farmer, if he wanted to escape the commerce clause power, had an option, and that option was not to grow wheat.

        So, all one has to do escape the commerce clause is to cease engaging in economic activity?

        Why can’t ObamaCare defenders just say that they made the implicit assumption that everyone in the United States is engaged in economic activity (any of which, taken in the aggregate, blah blah interstate commerce), and that Congress thus has the authority to require them to engage in a particular commercial transaction, just like Congress has done thousands of times by regulation of any industry you care to name.

        1. That’s essentially their argument, that everyone is engaged in commercial activity, at all times. Their argument is that the choice of not participating in something has an effect on commerce, and can be regulated. Therefore, everyone is engaged in commercial activity with everyone else, at all times, and congress can regulate all of this.

          The reason they don’t come out and say this (although you occasionally get some that do admit to those “forced purchases of cars or broccoli” examples) is that a lot of judges look for limiting principles (at least ideally).

          Anthony Kennedy, on the SC, has a reputation for looking at limiting principles. Obamacare supporters, rightly guess, that a judge like Kennedy won’t like hearing the argument that Congress can regulate any thing at any time, and so they have to try and get a little crafty (read dishonest) with their claims.

          1. I’ve been a little disappointed, from a professional point of view, that the OCare defenders haven’t realized that the activity/inactivity argument depends on a very particular definition of the market.

            The OCare attackers are saying that the Commerce Clause doesn’t allow Congress to require you to become active in a market (what market?) that you are inactive in (right now).

            The problem is that this argument depends on the defining the market you are inactive in. If we define it to mean the market for a particular good or service, then vast swathes of federal regulation will fall, because they requires you to purchase goods and services (safety equipment, pollution control equipment, etc. etc.).

            If the OCare defenders would point out that the legal theory being presented would require lots and lots of statutes and cases to be overturned, they would help themselves.

            1. I don’t think that argument would really help obamacare supporters, as the justification for purchases of safety equipment, pollution control equipment, etc. is not found in the commerce clause. The government does not require purchase of air scrubbers, for example, because of the commerce clause power. It does so by passing something like a clean air act, which itself has to pass constitutional muster.

      2. There is no activity that can be stopped in order to not fall under the commerce clause regulation, unlike Wickard.

        Sure, there is: breathing.

    5. By the way, I do agree with you that the activity/inactivity argument is doomed.

      Obamacare challengers will lose in the Supreme Court, and I won’t be surprised if they lose 6-3.

  14. When will you people learn to ignore me? I’m impervious to logic, so why bother? I’m only here to shit all over the comments with my state fellating idiocy.

    1. Is this a spoof?

      1. Is this a spoof?

        I LOL’d

    2. Fucking spoofers!

    3. Waah, I’ve told MNG why he is wrong so many times and yet he still won’t tell me I’m right!

      1. “I am incapable of being funny.”

  15. Phase one: pass unconstitutional law. Phase two: ???? Phase three: It’s covered under the commerce clause.

  16. If one can assume that a terminal degree in PolySci indicates at least some modicum of intelligence; then one can infer from this thread that MNG is one thoroughly dishonest fucking prick.

    1. i think you’re stretching there a bit with the polisci degree.

      1. MNG is proud of his terminal degree

      2. Intelligence does not equate to usefulness or correctness.

        The reason I get so annoyed in these discussions with MNG is that he obviously is a smart person.

        1. [citation needed]

          1. Yeah, I’m starting to reconsider.

    2. Sigh.

      Is it dishonest to think that when a text grants someone the power “to regulate commerce” that it could include the power to mandate economic activity?

      1. Not if the activity, or lack thereof, is completely intrastate, and the text you’re purporting to quote in full applies to interstate activity.

        1. Now you are talking about two things. There is the issue of whether the power to regulate includes the power to mandate things and the issue of whether intrastate things can fall under the clause.

          I think the power to mandate quite reasonably falls under the power to regulate.

          Now, the other issue is the substantial effects doctrine. As I’ve said above I’m not sold on that one myself. There strikes me as being problems with accepting it and rejecting it (it seems to gut any effective interstate commerce power by the feds, and I doubt that was what the ratifiers were going for, a useless clause).

      2. What’s dishonest is arguing that a document expressly written to limit and sharply define the powers of the federal government would include a single line granting it unlimited powers under a vague standard that could balloon to all-encompassing proportions.

        1. MNG doesn’t get the “few and defined” part of all this unless by “defined” you mean “includes everything.”

        2. What might be dishonest is for you to act like Morrison and Lopez, two cases in which limits on federal power under the ICC, never happened.

          I understand under this reading vast powers are given, and that actually troubles me too. But the argument that it will give unlimited powers is bogus as those two cases carved out domains that limit the power.

          1. Yes. It really does seem to trouble you when you crow and cackle about ObamaCare getting shoved down our throats.

      3. Is it dishonest to think that when a text grants someone the power “to regulate commerce” that it could include the power to mandate economic activity?

        Well, yes. Regulating commerce, meaning rules to govern transactions, does not encompass rules requiring that anyone engage in transactions.

        It means that, if you are going to engage in a transaction, that transaction has to meet certain standards.

        Otherwise, you might as well say that the EPA, under its authority to regulate toxic emissions, has the authority to require that you produce toxic emissions.

      4. Yes, I think it is. Regulating commerce means making rules for the commerce that actually happens. Not making rules that tell people what kind of commerce they must engage in. Under that reading the government could assign each citizen a job and rate of pay. You really think that anyone other than a brutal dictator would make that the law of the land?

      5. Um… Yes?

        Probably not the answer you were looking for.

      6. Is it dishonest to think that when a text grants someone the power “to regulate commerce” that it could include the power to mandate economic activity?

        Yes. Next question?

      7. Is it dishonest to think that when a text grants someone the power “to regulate commerce” that it could include the power to mandate economic activity?

        I think any reasonable person would conclude that.

  17. Money exchanges hands during abortions, as well. So not getting an abortion is also covered under the commerce clause.

    MNG is fine with the total regulation of abortion, even completely banning it. And he’s all for the government being able to make you get an abortion as well.

    Defining everything as interstate commerce gives the government complete control over everything. And MNG is just fine with that.

    1. but sugarfree, the sole thing the constitution does is potect abortion. You see madison and gang where trying to create a state with endless power except to interfear with the sole right endowed by the creator – abortion.

      1. Well, no, by MNG’s logic, not having a baby would affect commerce, thereby Congress could not only order a woman to not have an abortion, they could order her to get pregnant.

    2. No, no, no. He’d be opposed to that, “but it’s not unconstitutional.”

  18. Here’s an idea- if people don’t want to pay for insurance, they can buy health care services as they need them.

    Crazy, I know, but…

    IT COULD WORK.

    1. indigents dont “buy” our services. but they force you to subsidise their visits…which is commerce

      1. indigents dont “buy” our services. but they force [the government forces] you to subsidise their visits…which is commerce [socialism]

        ftfy

  19. In Wickard, the farmer, if he wanted to escape the commerce clause power, had an option, and that option was not to grow wheat.

    *clutches head, throws self off roof*

    1. Don’t get me wrong, I’m not supporting the Wickard decision, and I think it should be overturned….I’m just making a distinction between the Wickard case and today’s Obamacare case.

      Today, according to obamacare supporters, there is literally nothing a person can do to avoid being fined or being forced to purchase a good. That is different than Wickard, where at least the farmer had a choice to not grow the wheat. Believe me, Wickard was a garbage decision, and was the seed for 75 years of poorly judged pro government opinions.

  20. “What in the commerce clause would require activity?” asked Judge Motz.”

    Huh?

    How about the word “commerce” itself?

    Words have definitions.

    There is not definition of “commerce” that relates to inaction.

    1. But if the power to regulate includes the power to mandate things then the fact that commerce itself might inherently mean some activity is not very important.

      The inactivity/activity argument rests on the meaning of the word regulate, not commerce.

      1. No, it doesn’t.

        There is no unqualifed enumerated power to regulate everything.

        The only thing that can be regulated is interstate commerce.

  21. Has everyone failed reading comprehension?

    “To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes”

    The federal government can regulate commerce among STATES. It does not say among CITIZENS, PEOPLE, or INDIVIDUALS.

    1. But the government of New Jersey doesn’t sell tomatoes to the government of Virginia, individuals sell them to each other, so it obviously means individuals. Therefore the government can also mandate that individuals buy tomatoes. QED!

    2. In other words, it was intended that one State could not impose tariffs on goods and services coming from another State. That was the intention of the Commerce Clause.

      Otherwise it would have been written as “To regulate Commerce with foreign Nations, and among Individuals, and with the Indian Tribes” if they wanted the feds to regulate all activity/inactivity.

    3. Oh, please. Nobody really believes that it was only meant to be applied to transactions where a State, a Foreign Nation, or an Indian Tribe wa a party.

      1. So we must either accept that the Commerce Clause (PBUH) is all powerful or it is powerless. There is no middle ground here. This is an issue of nuance, which our surpreme judicial system will decide. I’m betting they choose all-powerful, because no one goes into government to give themselves less power, do they?

      2. No RC, many here do. What’s worse is they are arrogant and dismissive in asserting such an absurd theory.

        It’s interesting that they are rarely attacked with the vehemence of one asserting theories that grant a broad power. Even if the latter were absurd so is the former, so methinks it has to do with many a person here deciding their constitutional theory on ideological rather than textual/historical grounds.

      3. But the text is the huge elephant in the room of your argument.

        1. I think that elephant was killed long ago.

      4. “”Nobody really believes that it was only meant to be applied to transactions where a State, a Foreign Nation, or an Indian Tribe wa a party.””

        If a state applies a tariff, they are not a party to the transactions. They are making rules about transactions which might be unfair. The Commerse Clause allows the feds strike down those rules.

        A state allowing its wineries to ship out of state while banning out of state wineries to ship to their state would be a Commerce Clause issue. That affects citizens of both states and their ability to purchase wine, but it not about citizen, it’s about the state.

        If the feds can use the Commerce Clause to dictate to individuals what they can or can’t purchase, I don’t see how the founders created a federal government of limited power.

    4. This is the most retarded argument that surfaces during these discussions. Pray tell what commerce that was going on between state governments the ratifiers must have had in mind?

      1. Ever read the background to Gibbons v. Ogden? If not, do so. You will find your answer.

        The clause was intended to prevent the states from interfering with interstate commerce. There is absolutely no founding era support for the proposition that the feds could mandate the purchase of a product.

  22. To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes”

    So by Minge logic this means the federal government can also impose mandates upon individuals within Foreign Nations. Sweet!

    1. We can also invade foreign Nations for oil since that involves Commerce with foreign nations.

      All wars now can fall under the Commerce Clause.

      1. bout time terrans. our minister of commerce is on the way

      2. Let me be clear, I do not need congressional authorization under the Commerce Clause.

    2. Er, by your argument it would mean that the Federal government could abolish the tariffs of other nations, and that clearly ain’t so.

      Nice try cutie!

      1. He always breaks out the diminutives when he’s backed into a corner.

        1. where is this corner you speak of, where you blow warty?

          If you’re going to say it must not apply to regulate people in states because it would not apply to people in other nations I can point out that then it can’t apply to state tariffs since it would not apply to other nations tariffs.

          1. And it’s time to break out the homophobia.

          2. You are terrible at insults, little man. It’s embarrassing.

      2. The commerce clause grants the Congress the authority to lae rules regarding trade between three sorts of entities, all of which have one thing in common. They are sovereign nations. The only difference between a foreign nation and one of the States is that the State is a signatory of the treaty that is the US Constitution, and the other is not. Commerce among the States is analogous to the commerce between Nations. Any commerce clause mandate would have to be on the states themselves, not the ability to micromanage all economic activity between individuals.

  23. ‘To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;’

    Two questions: Does ‘regulate’ mean something different when applied to foreign nations and when applied to ‘the several states’? And, if the power of Congress is to regulate ‘among the States, doesn’t that mean what it says? IE, among the States, not the individuals of those States?

    1. At the time of the founding, the word regulate did not embrace prohibition. The same thing can be said today as it would be absurd to argue that when people use the word regulate they also mean prohibit.

    2. “Does ‘regulate’ mean something different when applied to foreign nations and when applied to ‘the several states’?”
      The only way I understand it after reading the above posts and remembering government class is that no is the answer if you are referring to the actual constitution and yes if you are referring to precedence of SC rulings. What is fucking amazing is that if Obamacare is ruled constitutional because the government can compel a citizen to engage in an activity or pay a fine, then if Angel Raich decides to not grow marijuana (inactivity) then she can be fined through the power granted in the commerce clause, and if she decides to grow marijuana (activity) she can be arrested and imprisoned through the power granted in the commerce clause. (the controlled substance act relies on the commerce clause). What a country!

  24. Great. I can use this argument with my boss. By not doing any work, I’m still doing work.

  25. Fucking A, people, you’ve fed the troll enough. He’s got to be full by now. Leave him alone, for fuck’s sake.

    I, on, other hand, really do feel like I’m to puke after reading this twisted and tortured fucking mess of what MNG purports to pass off as logic.

  26. Here’s my two cents:

    There is more than one meaning of the word “among.” Why are we limiting ourselves to the single definition that implies that the commerce clause is about commerce of individuals living in the states? What’s the point of mentioning the states then? Why not say “commerce among the nation?” In fact, the other two parts of the clause indicate regulation of commerce “with” foreign nations and Indian tribes, not “among.” That would imply interactions between national governments and nothing else. To get back to the other definition of among, it means one of a set or group. And you know, the several states are a specific set or group of items. So why isn’t the commerce clause interpreted as commerce between the state governments and nothing more? Wouldn’t that make some sense to protect states from price gouging other states for limited resources? Say the Southern States want to tax exports of cotton 800% to New England but keep trade cordial between themselves? I could get behind the feds not allowing that. And it makes a hell of a lot more sense than the feds regulating the sale of a bottle of wine from Winemaker Joe in Cali to Connoisseur Bob in Kansas.

    Why can’t this still be part of the debate?

  27. I have to admit our debate is a little amiss. The mandate isn’t being justified under the Commerce clause. It’s being justified under the Necessary and Proper clause as ClubMedSux points out above.

    The better arguement is questioning if the mandate is proper.

    1. But necessary and proper is not an independent power unto itself.

      It only relates to the specific powers elsewhere enumerated.

      Thus it can only be measures necessary and proper to regulate interstate commerce. And intersate commerce does not include non-activities.

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