A Bad Day for ObamaCare at the 11th Circuit?

As I noted yesterday, the 11th Circuit Court of Appeals in Atlanta heard oral arguments on Wednesday in the legal challenge filed by 26 states against the Patient Protection and Affordable Care Act's individual mandate. Ilya Shapiro of the Cato Institute was in the courtroom and says that after hearing those arugments, "I'm more optimistic about this case now than any other." As he reports:

This legal process is not an academic exercise to map the precise contours of the Commerce Clause or Necessary and Proper Clause — or even to vindicate our commitment to federalism or judicial review. No, all of these worthy endeavors are just means to achieve the goal of maximizing human freedom and flourishing. Indeed, that is the very reason the government exists in the first place.

And the 11th Circuit judges saw that. Countless times, Judges Dubina and Marcus demanded that the government articulate constitutional limiting principles to the power it asserted. And countless times they pointed out that never in history has Congress tried to compel people to engage in commerce as a means of regulating commerce. Even Judge Hull, reputed to be the most liberal member of the panel, conducted a withering cross-examination to establish that the individual mandate didn't help that many people get affordable care, that the majority of people currently without coverage would be exempt from the requirement (presumably due to their income level).

Read the whole thing here. Read additional ObamaCare coverage here.

Comments

[Barely Suppressed Rage]

A Bad Day for ObamaCare at the 11th Circuit?

Let's hope so.

[Almanian]

Doh! You missed an "Obvious Picture and Alt Text" opportunity!

http://bit.ly/kgLfra

"The healthcare plan was welcome - WELCOME TO LEAVE IN A PINE BOX!"

[sage]

Obamacare is a great plan - FOR ME TO POOP ON!

[Almanian]

Also, as Daughter #1 texted when this passed, "Fuck Joe Biden and Socialized Health Care"

[Brett L]

Did you tear up a little? I think I would.

[JW]

I have a son that I'd like to marry off into your fine family. Is your daughter of breedin' age?

[Barely Suppressed Rage]

countless times they pointed out that never in history has Congress tried to compel people to engage in commerce as a means of regulating commerce.

But ... but ... MNG says it's the same thing!

[free2booze]

Nice! I was thinking the exact same thing.

[Tman]

He only has arguments with the "big boys" now, so you probably wouldn't understand.

Me either I suppose.

[MNG]

It's not that they are the same thing, it's that a power to regulate that includes a power to direct and prohibit certain activity logically also entails a power to mandate similar activity.

If this were any other context in which you didn't have a vested ideological abhorrence to the outcome you'd readily agree.

For example, if I pointed to the power of Congress to make regulations for the military bestowed in Art. I. Sec., you'd think it odd if someone argued it did not entail the power to mandate as well as prohibit and direct the behavior of those in the military.

Likewise state's have the long recognized power to "regulate the public health, morals and safety" and as such this has included mandates (i.e., the Georgia locality that mandated each home own a firearm in the 90's).

You don't like this law, I get that. Heck, I share that. But I'm not going to wish my way to this being unconstitutional.

[MNG]

http://en.wikipedia.org/wiki/K.....ia#Gun_law

[Barely Suppressed Rage]

We've been down this road before - you cannot possibly, with any degree of seriousness, hold up the example of Kennesaw, Georgia as a justification for the argument that Congress has the power to require individuals to engage in commerce.

To do so only serves as evidence that you don't have the slightest understanding of how the Constitution works.

The government of Kennesaw, Georgia does not derive its powers from the Constitution. Congress does. Am I going to fast for you?

[MNG]

You continue to miss the point.

The Constitution grants Congress the power to regulate interstate commerce. Therefore what the word "regulate" means is critical for understanding what falls under that power.

Does the word regulate entail the power to mandate and prohibit? According to Raich it includes the power to prohibit. And if you look at the power to regulate in other contexts, like state and local goverments, then it entails mandates.

[free2booze]

Regulations are the rules that tell the participants involved, what can and can't be done.

Anyone who participates in an activity, has to play by the rules governing that activity. But, the participants have to first engage in the activity, before they are subject to the regulation.

[MNG]

That is hard to fit under Raich, because that involves a total prohibition. Using your analogy that is like cutting the lights off at the park and sending all the ballplayers home.

[Hazel Meade]

It doesn't include mandates to participate in the activity being regulated.

It only includes mandates upon people already engaged in that activity.

[MNG]

"It only includes mandates upon people already engaged in that activity."

How does that fit with prohibitions? The people have to be already enagaged in an activity before the government can...totally prohibit that activity?

[Mercurus]

The Commerce Clause grants Congress the power to regulate the governing actions of the States (taxation, etc.), the federal government (treaties, etc.) and the Indian Tribes. States, Congress and the independent Tribal Nations cannot pass laws that will prohibit or violate the right of it's citizens or the citizens of other states to freely associate. The role of Congress is to make sure that this happens. The framers of the Constitution would be appalled by it's current inverted interpretation.

[MNG]

"To do so only serves as evidence that you don't have the slightest understanding of how the Constitution works."

This from a guy below who called it Thomas Jefferson's Constitution when TJ was out of the nation when it was drafted.

[Apogee]

This from a guy who thinks the Constitution must list what the government cannot do.

[Mr. FIFY]

Don't forget Barry's "negative rights" bullshit.

[MNG]

Nope, I'm interpreting the scope of an enumerated power, in this case the Commerce Clause in Art. I, Sec. 8.

[Apogee]

I'm interpreting the scope of an enumerated power...

I retract my earlier comment.

Please substitute the following:

This from a guy who interprets the Constitution to grant the government unlimited power over every possible facet of our daily lives, except where the limitation of Government power (1st Amdmt, 2nd, etc.) is expressly delineated.

In short - exactly what I said in my 3:42AM comment, except that this one contains your helpful proof of my assertion.

[Tman]

MNG,

You can twist and obfuscate all you want but you have yet to make a reasonable argument that economic inactivity is somehow something that falls under the Commerce Clause.

And thank god, neither has the Obama team.

[MNG]

The word regulate means to direct, totally prohibit (Raich, the federal anti-lottery and obscenity laws) and mandate activity. That this is so is plain not only from the definition (both at the time and now) of the word (Johnson defined it as the power to direct or make rules, certainly there is nothing fantastic about the idea that a rule or direction can be a mandate to do something) and from the long acceptance of mandates like the one noted in Kennesaw, Georgia and from regular mandates imposed under state police powers which grant the state the power to regulate in various areas (for example, compelling children to attend schools).

I don't know what else to tell you. The only argument your side seems to have is an argument from novelty or one that says if my reading is accepted we would have no limits (but Lopez-Morrison established limits so that's not much).

You just don't want it to be constitutional because the result would offend your political philosophy.

[Tman]

My "political philosophy" is the basis of our entire government and the constitution it's based on. I'm not "offended" I'm aghast at how far we've strayed from a pretty ingenious system of government.

Despite the fact that Raich and Wickard were horrible decisions, they don't change the definition of the word. My failure to buy something doesn't entail "commerce". Thus it isn't (or shouldn't) be regulated under the Commerce Clause. Wickard at least has the argument that his failure to sell something could be maybe possibly if we squeeze it hard enough some kind of "commerce" but even then the stretch is ridiculous.

You keep trying to fit a square peg in a round hole. I would say it's because you probably agree with me but your wife is watching you write these and you won't get any nookie for a month if you don't argue her points well enough.

[Hazel Meade]

Please find me a court case anywhere in history where "regulation" of an activity is interpreted to include madates to participate in that activity.

[MNG]

http://en.wikipedia.org/wiki/Police_power

"In United States constitutional law, police power is the capacity of the states to regulate behavior and enforce order within their territory for the betterment of the general welfare, morals, health, and safety of their inhabitants.[1"

Notice that the police power is defined as the power to REGULATE etc., etc., etc.

Now, I imagine Hazel, BSR et al., will admit that state and local governments can, under their police power, mandate activities.

So, if the word regulate does not entail a power to mandate, how do you explain all this? In court cases and treatises spanning the history of this nation the word "regulate" is used to describe state and local government police powers, and this has often entailed....yes....mandates!

So the word regulate means to prohibit, direct or mandate when it is used to describe state and local powers but the word itself (apart from political philosophy) somehow magically loses this one common part of its meaning when it appears in the federal Constitution.

Incredible the lengths an ideologue will go to in order to argue to his or her desired results.

[Mensan]

I honestly can not think of a single activity in which I must engage per state mandate.

[Apogee]

Now, I imagine Hazel, BSR et al., will admit that state and local governments can, under their police power, mandate activities.

You have a very active imagination.

Incredible the lengths an ideologue will go to in order to argue to his or her desired results.

The inability to self-examine - it's incredible.

[free2booze]

No kidding. This crazy obsession MNG has with "the power to prohibit and the power to mandate are the same thing" is just loony. I bet he stays up late at night, writing this phrase all over his bedroom wall, in red crayon.

The power of the commerce clause has never been interpreted to apply to people before they actively enter into a class of activities, that congress has the authority to regulate.

[Hazel Meade]

Fail MNG.

You didn't show a case where "regulate" is interpreted by the courts to mean mandates to participate in the activity being regulated.

Moreover, the federal government is explicitly, according to SCOTUS precedent, NOT supposed to have a general police power.

That was the whole point of Judge Vinson's ruling in the Florida case.

[MNG]

The police power is involved in cases throughout our history and it is referred to as the power to regulate for the safety, health and morals of the state's citizens.

If state and local governments power to regulate does not entail mandates then how do you explain the case of Kennesaw, Georgia? It's clearly a mandate.

[free2booze]

MNG, for days people have been asking you to cite a case, in which the court has ruled that congress can regulate participants before they enter into a class of activities. To date, you have yet to offer any up.

Until that day comes, you're just blowing smoke out of your backside.

[Barely Suppressed Rage]

"Regulate" means control or direct, sure. Very much like a valve regulates the flow of a liquid through a pipe. Or like the throttle plate of a carburetor regulates the flow of air through the carburetor.

So think of Congress's power to regulate commerce among the states as that valve or throttle.

Congress can put a valve on interstate commerce. It can control and direct that flow, and, if it deems certain types of commerce, or commerce in certain substances, to be harmful or against public policy, it can shut off that valve or choke off that carburetor and stop the flow completely.

But the valve cannot create the flow. It can regulate flow that passes through that pipe, but if there is nothing flowing through the pipe, the valve cannot create the flow so it can then regulate it.

There is no basis whatsoever - in the plain, dictionary meaning of words, or in the historical understanding of the words used, for your continuing argument that "regulate" EVER meant "require" or "create".

The Constitution does not empower Congress to "initiate" or "create" or "require" commerce among the states. It empowers Congress to control, direct, manage, etc., "commerce among the several states."

Your argument again and again focuses on some meaning of "regulate" that you've made up out of whole cloth, based on nothing I have yet seen you cite, and yet conveniently avoids the fact that Congress may regulate "commerce among the several states."

There simply is no basis, in historical understanding, in the plain language used, or in any Supreme Court precedent, for the proposition that the power to control or even prohibit interstate commerce in certain substances includes the power to require individuals to engage in commerce when they are not otherwise doing so.

And yes, I don't want it to be constitutional, because it clearly is not, as the Constitution was originally understood for the first 150 years of its existence. It is only by disingenuous and tortured "interpretation" that the language was stretched to include a power to regulate isolated, purely INTRAstate activity that, taken in the aggregate, MIGHT have some effect on commerce among the states. I.e., Wickard v. Fillburn was wrongly decided by a cowed Supreme Court trying to save its own ass from FDR's threats.

[MNG]

"There is no basis whatsoever - in the plain, dictionary meaning of words, or in the historical understanding of the words used, for your continuing argument that "regulate" EVER meant "require" or "create"."

So the power of Congress to regulate the military given in Art. I sec. 8 does not include any power to make rules that require things of those in the military?

"It can regulate flow that passes through that pipe, but if there is nothing flowing through the pipe, the valve cannot create the flow so it can then regulate it."

How in the world can you still hold to this argument in the face of Raich? Raich totally prohibited the "flow" of a commercial activity. Before Raich federal anti-lottery and anti-obscenity, both laws that go back over a hundred years, did the same. So much for your "flow" theory. If it entails the power to totally stop the flow why not the power to initiate flow?

[Apogee]

So the power of Congress to regulate the military given in Art. I sec. 8 does not include any power to make rules that require things of those in the military?

Those in the Military are inducted as government employees.

What you are alluding to is the military style induction of every citizen in the country.

Please explain why there exists two separate systems of justice for the Military and Civilian populations, if it's really all the same thing.

[Hazel Meade]

that require things of those in the military

Not the words MNG. "Of those in the military".

As in, people ALREADY ACTIVE in a particular way, may be regulated.

The operative question is does the constitution allow the government to draft people. Not whether it can require people already in the military to do things.

[MNG]

The operative question is what does the word "regulate" mean. In the context of the military it means "the power to direct, prohibit and mandate certain conduct." Why the word's meaning would suddenly change it's meaning in the Commerce Clause is for you to explain.

[MNG]

Your valve argument becomes even more silly when you consider yet another use of the word regulate in Art. I Sec. 8 giving Congress the power to regulate money. Do you want to argue this did not give them the power to "create" money, only to "direct" and "prohibit" money? WTF

I've noticed you've dropped the goofy "it means remove impediments" argument you used to make. As that was even more patently absurd given the other uses of the word in the Constitution (congress has the power to remove impediments to the military and money!?!) at least that is some progress.

Raich kills your previous theory, totally prohibiting commerce is hard to square with your idea it all means "removing impediments." But you really, really, want this to be unconstitutional, so you say, well, what would direct and totally cut off but not initiate? I know a valve!

But you're just offering a conclusion there. What good reason would you give to convince them that the word regulate which entails direction and prohibition does not also entail mandates? Of course someone who shares your ideology will need no reason, action vs. inaction is critical to libertarianism, so you read it as critical to any power of government. But you're reading your political science into a word. For you a power to mandate would be a horrible, immoral thing, so you can't, won't, accept that the word regulate entails mandates. But why would anyone who doesn't accept your philosophy buy that?

[Apogee]

Raich kills your previous theory

If the Supremes ruled that you could not criticize the government, and then ordered all newspapers shut down, would you still put case law above the clear meaning of the Constitution?

[MNG]

IF BSR and Hazel want to say that Raich is wrong and should be overruled then fine (I might agree with them btw), but I take it we are arguing can Obamacare succeed under current caselaw.

[Apogee]

That may be what they're arguing, but it isn't what I'm arguing.

"Caselaw" is neither a reliable indicator of government authority (because it can be altered by far too few individuals to have real merit), nor an acceptable lens to view the Constitution.

What you fail to see is that the courts and prisons can be closed, the Judges hung, and the whole of the regulatory system scrapped - all without altering the Constitution.

That is what is meant by "Jefferson's Constitution" (regardless of where his physical location at the time). It is a radical document that removes power from men over other men. The term "the very definition of a republic is "an empire of laws, and not of men"" is not a subjugation of natural rights to caselaw as you put forth, but a firm recognition that power must be removed from the ruling class for a society to function.

It is the supreme law of the land - and it is transcendent of mere caselaw. That's the point. Otherwise, human rights are relegated to a winner take all adversarial system and can be eradicated by a political appointee.

To you, caselaw is an end run around the acknowledged limitations on government written into the Constitution. It is a self-serving system of circular reasoning that only serves the expansion of government power.

If that is indeed the system you wish for, then make no mistake that when such an appointee rules in favor of something that you find abhorrent, then you have no recourse other than submitting to said dictate. George W Bush (or whoever takes his place that you're not in love with) can look through your mail, follow your every move, and detain you indefinitely - Sorry, bud, this is the life you've chosen.

[Hazel Meade]

a power to regulate that includes a power to direct and prohibit certain activity logically also entails a power to mandate similar activity.

No it doesn't. The founders recognized the difference between being forced to do things by the government, and being probitied from specific harmful actions, or having those actions conform to certain rules.

That is why the constitution is written to "secure the blessings of liberty", and specifically enumerates those cases where the government can mandate actions.

Nowhere in either the constitution of the preexisting common law is "regulation" EVER interpreted to include mandates upon people not already engaged in an activity.

[MNG]

So the power of Congress to regulate the military given in Art. I sec. 8 does not include any power to make rules that require things of those in the military?

And please, don't say "well the people actively joined the military." Duh. We are not talking political science but the meaning of a word, "regulate"; in Art. I Sec. 8's grant to Congress of the power to regulate the military are you really arguing there is no requirements for the military entailed in that power? WTF?

[MNG]

The question is, does the power to regulate include a power to mandate? The section I'm pointing to certainly implies yes, because the government can certainly mandate the military do all kinds of things.

Additionally, the police power of the states is often described as the power to regulate for the health, morals and safety of the state citizens. And yet again we find that this power has been found to include mandates, like the one in Georgia I mention.

So I can point to uses throughout our history where the power to regulate has included the power to mandate.

[Hazel Meade]

So, being born is equivalent to joining the military, MNG?

And the constitution, and SCOTUS precedent, explicitly deny the federal government police powers. That is one clear line that SCOTUS hasn't crossed, which is the gist of Vinson's ruling striking down the mandate. If it would give the federal government a general police power, it is unconstitutional, according to current interpretation of the commerce clause.

[MNG]

I don't think it gives a general federal police power either, Lopez and Morrison make it clear that it can only touch economic matters, so it's more of a general economic police power.

[Apogee]

a general economic police power.

Your ability to conjure nonsense is unbelievable.

What is the value of a "general economic police power" without backup from actual police, with actual weapons?

[Barely Suppressed Rage]

a power to regulate that includes a power to direct and prohibit certain activity logically also entails a power to mandate similar activity

No, it doesn't. Period. Full stop.

[Pedant]

>For example, if I pointed to the power of Congress to make regulations for the military bestowed in Art. I. Sec., you'd think it odd if someone argued it did not entail the power to mandate as well as prohibit and direct the behavior of those in the military.

The more relevant analogy would be arguing that that clause gave Congress the power to compel people to join the military.

[MNG]

I'm not trying to make an analogy. I'm trying to ascertain what a word means by looking at other uses of the word in the same document. In the case of the power of those in the military the clause in Art. I Sec.8 certainly seems to use the word regulate in a fashion that would entail not just direction and prohibitions, but mandates as well.

[Apogee]

In the case of the power of those in the military

You continue to obfuscate the difference between civilians and government employees.

Again - the government can shoot members of the military without trial for disobeying orders. Are you suggesting that this ability, since it exists as a military regulation, should also apply to the citizenry?

[Barely Suppressed Rage]

For example, if I pointed to the power of Congress to make regulations for the military bestowed in Art. I. Sec., you'd think it odd if someone argued it did not entail the power to mandate as well as prohibit and direct the behavior of those in the military.

Of those in the military, yes. Just like Congress has the power to prohibit and direct the behavior of those engaged in commerce.

But the power to "regulate" the military does not extend to the power to regulate those not in the military, any more than the power to regulate commerce extends to the power to regulate those not engaged in commerce.

[Mensan]

+ 14.3 Trillion!

[Joshua Corning]

If this were any other context in which you didn't have a vested ideological abhorrence to the outcome you'd readily agree.

Then why are two Clinton appointees who share your ideological abhorrence signaling that they do not agree with you?

[Apogee]

If this were any other context in which you didn't have a vested ideological abhorrence to the outcome you'd readily agree.

Pot/Kettle

[MNG]

I guess you're ignorant of the fact that I've long professed that the mandate is stupid and immoral and should be repealed asap while those who voted for it should be voted out of office?

I just don't think it is unconstitutional.

[Kommunist Kanadian Kaptain]

all of you incorrect
The mandate is constitutional, but not in the way described here its actually quite simple

Congress has the power To regulate Commerce with foreign...among the several States and health insurance is commerce among the states, so the area is one the can regulate

Congress also has the power To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and it can argue it is necessary to mandate insurance in order to effectively exercise its power to regulate interstate commerce in health insurance

[Apogee]

I guess you're ignorant of the fact that I've long professed that the mandate is stupid and immoral...I just don't think it is unconstitutional.

What 'morality' is trespassed by such a ruling that would not also render it antithetical to the inalienable rights recognized by the Constitution?

[TrickyVic]

"""Even Judge Hull, reputed to be the most liberal member of the panel, conducted a withering cross-examination to establish that the individual mandate didn't help that many people get affordable care, that the majority of people currently without coverage would be exempt from the requirement (presumably due to their income level).""

Needs more mandate.

[Fist of Etiquette]

Judge Hull seemed to be missing the point.

[TrickyVic]

But I think a valid point. Even if the mandate was Constitutional, then wouldn't the Constitution demand that the madate be applied equally among the citizenry, and if not, the mandate would be unconstitutional?

[Barely Suppressed Rage]

I don't think that was the judge's point. The point was that the mandate would not actually acheived what it was purportedly set out to acheive.

And, the answer to your question is no. The tax code is not unconstitutional simply because different people pay different effective rates, and some pay nothing at all. The mandate would apply equally to anyone who met the applicability criteria.

[Jerry]

So it's a tax then?

[Joe M]

Depends on the day.

[Barack Obama]

It's whatever it needs to be.

[Paul]

Yes, in the same way Global Warming became Global Climate Change.

[Barely Suppressed Rage]

It's not a tax for purposes of getting the legislation passed, but when challenged in federal court, it becomes a tax for purposes of defending Congress's power to enact it - at least until the federal judge calls bullshit on us and shuts that argument down.

[Mr Wrigley]

It's DoubleMint good stuff for what ails you.

[Joshua Corning]

So it's a tax then?

It is like the wave/particle duality of matter.

It behaves like a tax when measured one way but behaves like a regulation when measured another.

Peloci is a Catholic though so it might be better to say it is like the duality of Christ and God.

Sometimes he is the son of God...other times he is God.

[TrickyVic]

""The tax code is not unconstitutional simply because different people pay different effective rates, and some pay nothing at all. ""

Equal doesn't mean equal for all, equal for all for the same like. People with the same income and same deductions should pay the same amount.

But equal is a constitutional issue. In Bush V Gore, the recount was struck down because of this reason. People's hanging chad counted as a vote in one county, but did not count as a vote in another. The way the votes were counted was not equal.

[James Ard]

Hull's angle was to convince herself that the mandate could be severed from the bill. She isn't comfortable with the mandate but won't rule against it if the bill can't stand without it. That's why she was trying to minimize the importance of the mandate.

[James Ard]

And since neither side agreed that the mandate could be severed, Hull will rule it constitutional with some mumbo jumbo about temporal trivialities.

[Joe M]

I read that as "applied equally among the crittery,"

[TrickyVic]

Constitutional issues aside, I think the law is the worst since the P.A.T.R.I.O.T. Act. Anything that sinks this monstrosity is fine by me.

[Dr. Dave]

Not even comparable. Obamacare is akin to mass murder while the PATRIOT act is akin to jay walking.

[NoStar]

The Patriot Act negates the 4th Amendment by allowing police to approve their own search warrants (no pesky judge's approval necessary), and sets conditions that can make it unlawful and treasonous for to even mention that you are under investigation.

ObamaCare forces me to buy a service I do not want.

The Patriot Act is akin to Police State Tyrrany. ObamaCare is akin to robbery.

[Pro Libertate]

Let's not bicker and argue about which law sucks the most--they're both fucking too much.

[Lost_In_Translation]

But he stabbed the brides father!

[Brandon]

Didn't the patriot act create the TSA? So wouldn't it be the equivalent of mass murder vs. rape instead of mass murder vs. jaywalking?

[TrickyVic]

Mass murder vs. mass rape?

[STEVE SMITH]

MASS RAPE? STEVE SMITH GOT THAT COVERED! NO NEED COMPETITION!

[free2booze]

The Patriot Act is akin to Police State Tyrrany. ObamaCare is akin to robbery.

If the mandate is upheld, the Feds would have no need for the PATRIOT act.

[free2booze]

The PATRIOT act reduces personal freedom. The individual mandate reduces personal, and economic freedom.

[free2booze]

I hope that Judge Hall's comment won't be used to justify leaving the rest of the law intact.

[Hugh Akston]

No, all of these worthy endeavors are just means to achieve the goal of maximizing human freedom and flourishing. Indeed, that is the very reason the government exists in the first place.

Uhh...Which government would that be?

[Barely Suppressed Rage]

The one posited by Locke and envisioned by the Founding Fathers.

I.e., one almost, but not quite, entirely unlike the one we have today.

[Episiarch]

None of them. Government exists to further itself, no matter what the original intentions for it. It's what it does.

[JW]

All of a sudden, I have a vision of "The Sorcerer's Apprentice" in my head.

[Barely Suppressed Rage]

It's like the scorpion on the turtle's back.

[Lost_In_Translation]

Dive! Dive!

[Hazel Meade]

We have the constitution of Thomas Jefferson, not the Constitution of Karl Marx.

[Barely Suppressed Rage]

We have the constitution of Thomas Jefferson as seen through the lense of the New Deal Court and the Warren Court...

[MNG]

Did TJ have much role in drafting the Constitution?

[Pro Libertate]

Not in the drafting, but he did influence it. I think he was in France at the time.

[Hazel Meade]

Well, no, but basically, it's based on the same principles as the Declaration of Independence. I'm using TJ as a handy reference point for the general beliefs of the founders about liberty.

[Barely Suppressed Rage]

Pardon me. Replace "Thomas Jefferson" in my statement above with "James Madison."

There, all better?

[Hazel Meade]

Lenses can only distort so much.

The 'liberty' of Thomas Jefferson fundamentally means "not being forced to do things".

As much as the New Deal attempted to redefine liberty as "freedom from want", they could never really write out the "not being fporced to do stuff part".

[Hazel Meade]

Er. The "not being forced to do stuff" part.

[Ken Shultz]

It's not like these guys are about to restore my faith in the justice system...

...and them comin' up with the right answer is too much to hope for. I'll be rootin' for 'em, but wake me up when there's a final score.

P.S. ObamaCare sucks regardless of whether it's constitutional.

[Paul]

My experience is that sometimes the toughest cross examination comes from the sympathetic judge, because he wants to know that when he affirms the government's case, he want to make sure his logic is reasonably sound.

[Ken Shultz]

Yeah, they can't say he didn't ask them about it! Classic CYA maneuver.

It's like being your own straw man!

Maybe they ask a question during comments so they can strike it down when writing their opinion?

Anyway, there's no reason to be so pessimistic--but then I don't have the stomach for optimism on this either.

[Paul]

And the 11th Circuit judges saw that. Countless times, Judges Dubina and Marcus demanded that the government articulate constitutional limiting principles to the power it asserted.

That sound you hear is the collective noise of a million progressive heads exploding.

[Pro Libertate]

But the Constitution constitutes the granting of infinite power to the government. That's what "constitution" means!

[Sparky]

"CONSTITUTION! But what does that mean really? Sometimes it helps to understand a word if you break it down, so let's do that now shall we? Cons... it doesn't mean anything, you can forget about that... Tit, I think we all know what that means, Tu, two tit and TION of course, from the Latin to shun... to say uh-uh no thank you anyway I don't want it, to push away... it doesn't even belong in this word really."

[Pro Libertate]

Night Shift, right?

[TrickyVic]

Yeah. That and Mr. Mom are the best Michael Keaton movies.

[Barely Suppressed Rage]

Indeed. Billy Blazekowski. I thought I was about the only person who knew that movie.

"Idea to save landfill space: edible paper. Eat, it's gone. Eat it, it's outta there."

"Idea to save time: feed mayonnaise to the tunafish."

One of my favorite lines in the whole movie: "Nice frame."

[Pro Libertate]

That's a very funny movie.

"Oh, that Barney Rubble. What an actor."

[TrickyVic]

Can you turn it down?

Sure I can turn it down. I can turn it up. I can turn it left. I can turn it right. I can even reverberate it.

[NAL]

"Trim that!"

[JW]

"He speaks the sacred words!" Only Yangs may speak these words."

[Pro Libertate]

Nobody's worshiping the words, but we are at the point where the words don't mean what they say.

[JW]

:::Hits ProL with Rodenberry's corpse:::

[Pro Libertate]

I just meant we were half-Yang. Not full Yang.

[Madame Speaker]

Countless times, Judges Dubina and Marcus demanded that the government articulate constitutional limiting principles to the power it asserted.

Are you serious? Are you serious?

[Congressman Pete Stark]

I know, right?

[R C Dean]

And countless times they pointed out that never in history has Congress tried to compel people to engage in commerce as a means of regulating commerce.

I think this is just flat wrong. Congress compels people to engage in commerce all of the time. Vast swathes of regulation are mandates to buy goods and services. That strikes me as "compel[ling] people to engage in commerce as a means of regulating commerce."

Now, those regulations are typically conditional on being engaged in a particular industry - that is, if you want to run a power plant, you have to buy pollution control equipment.

ObamaCare is not conditional on being engaged in a particular activity, or active in a particular market. Rather, it assumes that everyone will be engaged at some point in the healthcare market.

The Constitutional innovation required to approve ObamaCare isn't allowing Congress to require people to buy a particular good or service. Congress has been doing that for decades, on the theory that being economically active in some way allows Congress to "regulate" your activities that are related to that that economic activity. Those mandates have been tied to a current economic activity, and nobody has batted an eye.

Rather, it is allowing Congress to impose a mandate on someone based on
the assumption that they will eventually, inevitably be economically active in a certain way.

[Hazel Meade]

I think this has been discussed a number of times before, but this is one of the basic nuances of the activity/inactivity distinction.

There ARE plenty of cases where inaction is punishable. We the moral concept of "sins of omission".

However, nearly universally, those occdur in cases where someone has done something to assume a responsibility to act.

For instance, if I take a job as a train conductor, I have a responsibility to stop the train if I'm heading for a collision. If I'm driving a car, I take upon myself the responsibility to drive according the the traffic laws, and to hit the brakes as I approach a pedestrian.

As in the case I've been using an as an example: In case (A) I can push a button to divert a train from killing someone. In case (B), I can put a button to divert it into someones path.

Everyone agrees that (B) would be murder. However, most people (unless they are strict utilitarians) don't think that NOT pushing the button in (A) is murder, UNLESS it is your job to push the button (you're a train conductor), OR you somehow put that train or that person on the tracks.

Hence, nearly everyone universally agrees that inaction is only punishable if you have taken SOME PRIOR ACTION to create a responsibility to act.

Thus, mandates to activity are not uncommon, but they are contingent upon someone being engaged in an activity that places others at risk, have taken some previous action to create the risk, or have voluntarily assumed a responsibiltiy to prevent such risks (i.e. joining the military, becoming a police officer).

What PPACA does, however, is impose a mandate upon people who have not really done anything to create the probloems in the health care market that the madate is intended to fix. It is only based upon an assumption that they inevitably WILL create such risks, which is not actually necessarily true.

Even taken in the aggregate, most of the uninsured are relatively low-risk 20-something single people, and they are (and are intended to be) bringing more dollars into the market than they are consuming. Forcing then to buy health insurance isn't really about preventing them from freeloading. It is about reducing health insurance prices for older and sicker people.

[EscapedWestOfTheBigMuddy]

This is a fine argument as far as it goes, but the question "Does the Commerce Clause have any limits?" is more fundamental.

We have the testimony of the wrote, debated and signed the document that they were establishing a government of limited and defined powers.

Accordingly, any interpretation which grants unlimited power (as the claim that that government can force you to buy things does) is prima facie an incorrect interpretation.

There is no getting around that.

[Apogee]

^This

[rst]

I want to be optimistic, but SCOTUS' track record of blindly deferring to the legislature is pretty damning. And it was Scalia who wrote Raich, no?

[Barely Suppressed Rage]

Yeah, but Scalia is of the camp that drugs are bad, mmkay?

So of course it's within Congress's power to forbid those fucking dope heads from growing their own nasty mary-jew-wanna.

This here is difernt.

[Hazel Meade]

Just a thought here, for the believers in universal healthcare.

Why not expand volunteer organizations like the Red Cross into volunteer health care services for the poor? Maybe even run some basic training for nurses so they can recruit untrained volunteers, get them some medical training and then require X years of service.
Sort of like the military. You join, we train you, but you have to serve X years, and you're required to provide medical care to all comers.

[Fatty Bolger]

I'm sure they might be interested in ideas like that, if the goal was really universal healthcare.

Of course, it is not. The goal is government run healthcare.

[Uptown Charlotte Dentist]

This should get real interesting..thanks for the info...