Health insurance

Meet Roscoe Filburn, the Dead Farmer at the Center of the ObamaCare Case

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ABC News introduces its readers to Roscoe Filburn, the Ohio farmer whose 1942 loss at the Supreme Court now serves as one of the key legal precedents cited by the Obama administration in its defense of the Patient Protection and Affordable Care Act's individual mandate:

[Filburn] felt wronged by Congress and, particularly, a law that was meant to regulate wheat prices. It had been Filburn's practice to grow wheat in the fall and use it in part to feed livestock on his farm and make flour for home consumption.

But the Agricultural Adjustment Act of 1938 limited the number of acres Filburn could plant. The law allotted him 11.1 acres, and he harvested 23 acres. He was subject to a penalty of 49 cents a bushel for the wheat that went over the limit. He sued.

Filburn said the law went beyond the reach of Congress. He argued the government had no business regulating wheat that was local in nature with only an indirect effect upon interstate commerce. His wheat was not being sold on the open market, it was for his own personal use.

The Supreme Court unfortunately disagreed, ruling in Wickard v. Filburn that growing and consuming wheat entirely on your own farm still counted as interstate commerce that could be regulated by the federal government under the Commerce Clause. In 2005, the Court reinforced this decision, holding in Gonzales v. Raich that medical marijuana cultivated and consumed entirely within the state of California also counted as commerce "among the several States" and was therefore open to regulation under the Controlled Substances Act. That's the case where Justice Clarence Thomas remarked, "If Congress can regulate this under the Commerce Clause, then it can regulate virtually anything—and the Federal Government is no longer one of limited and enumerated powers."

The legal challenge to the health care act therefore faces a significant hurdle. If Wickard and Raich do in fact allow Congress to "regulate virtually anything" under the Commerce Clause, why can't Congress force us to buy health insurance? The answer, according to the law's opponents, is that while Wickard and Raich allow Congress to regulate economic activity, the failure to buy or secure health insurance is by definition an inactivity, which means that Wickard and Raich do not apply and the mandate may be struck down for exceeding Congress' powers under the Commerce Clause without violating those precedents. Since Justice Antonin Scalia famously sided with the majority in Raich, he may find this approach particularly attractive. The problem with it, as my colleague Jacob Sullum has pointed out, is that while the activity/inactivity distinction may defeat the individual mandate, it will not correct the Court's previous errors in Wickard and Raich. Old Roscoe Filburn may have to wait a little longer for justice.

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  1. For all the hate Thomas gets, what he said was and is a dire warning.

    Or maybe that IS the reason he’s hated.

    1. Who the hell hates Clarence Thomas?

      Anytime a pol is asked who their favorite Supreme Court Judge is, I want to smack them for not immediately saying “Justice Thomas.”

      1. “Who the hell hates Clarence Thomas?”

        I do. This is the guy who wrote a lone dissent blessing the power of a school administrator to strip search a 13 year old girl because she was suspected of having an aspirin on her person.

        1. Type “clarence thomas house nigger” into yer Google, cthorm.

          MNG… yeah, that dissent sucked ass. I’ll never forgive Thomas for it. But what he said about the Commerce Clause, who apparently owns our asses… THAT, was a good thing he did.

          1. I dunno, I think we’re both more at risk from having our 4th Amendmnet rights violated by state and local cops than we are from something horrible happening from something under the Commerce Clause power…The Commerce Clause allows a lot of power, and that is scary, but so far the worst from that is the DEA and a coming insurance mandate. I already have insurance and again, the risk of state/local cops hassling you over drugs > the DEA doing the same…

            1. “The worst” is a fucking lot, MNG.

              Question: How are homeless people going to be punished when they can’t buy the mandatory health insurance?

              1. I was trying to think of how it impacts me and you, I don’t think either of us are homeless. My point was I’m betting you and I would be far more at risk from some injustice at the hands of the state/local police that Thomas unleashes than the Feds exercising their commerce power…

                As to the homeless person scenario, I think they actually give those folks waivers under the plan…

                1. Waivers? Oh, that’s so wonderful of them to hand those out.

                  But as far as being forced to buy something, as an edict blanketing the entire nation… that’s bullshit. That’s like forcing people who don’t drive, to buy car insurance anyway.

                  Fuck that.

                  1. ” as an edict blanketing the entire nation… that’s bullshit”

                    Hell, not only would I agree there, I’d go farther: it’s f*cked up even at the state level.

                    1. Good way to look at it.

                2. I was trying to think of how it impacts me and you, I don’t think either of us are homeless.

                  By that logic:

                  Strip searching a 13yo girl is ok by me because I’m not a 13yo girl.

                  Detaining accused terrorists without trial is ok because I’m not a terrorist.

                  Bombing brown people in other countries is ok by me because I live in this country

                  Killing drug users is ok by me because I’m not a drug user.

                  Etc.

                3. I’m betting you and I would be far more at risk from some injustice at the hands of the state/local police that Thomas unleashes than the Feds exercising their commerce power.

                  Actually, I’ve reached the exact opposite conclusion. I do not engage in any illegal activities (other than maybe driving a few MPH too fast on the interstate) and I never go out into situations in which I might get myself cross-wise with a cop. I really have zero reason to believe any cops will ever come knocking on my door at night.

                  But massive, overarching government regulatory programs almost certainly will affect me and my daily life.

            2. “I dunno, I think we’re both more at risk from having our 4th Amendmnet rights violated by state and local cops than we are from something horrible happening from something under the Commerce Clause power…Th”

              Not really. I mean, the potential magnitude of harm is greater from cops, but Commerce Clause abuse is likely to affect a much larger number of people. Something pretty bad that affects 100 million people probably ought to be bigger concern than something positively awful that affects a thousand.

              1. It isn’t like the federal war on drugs and all its attendant mandates and incentives have no affect on the priorities and behavior of local governments.

                You don’t think your local PD has that DARE program because it is so super-awesome do you?

        2. I take it you hate John Paul Stevens too?

          1. Did Stevens join Thomas’ dissent in that case?

      2. I do. He is the Pedophile Justice.

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  2. I *OWN* your asses, bitches.

    Suck it.

    1. What the hell’s a constantunitution?

      1. It’s, like, a moldy old document written by white guys, like, a hundred years ago.

        1. It’s a handful of carpet tacks in front of My Tires, is what it is.

    2. Dred Scott was overturned IIRC.

  3. “is no longer one of limited and enumerated powers.”
    Justice Thomas, that shipped sailed a long time ago

    1. Yeah, he’s about 100 years DEFINITIVELY late to the party.

    2. Yeah, it’s long-since time they admitted their “powers” amount to “I’m bigger than you.”

  4. Hasn’t this been covered like 17,000 times in the past year?

    Slow news day, methinks.

  5. It’s time for my obligatory quip…

    There’s a big difference between constitutional and good. The Three-Fifths Compromise was constitutional, but the Three-Fifths Compromise sucked.

    Is the individual mandate like the Three-Fifths Compromise?

    Only in one way: just like the Three-Fifths Compromise sucked despite being constitutional, the individual mandate sucks–even if it is constitutional.

    1. Which it isn’t anyway, so we’ve got ourselves a double win.

    2. Apparently you missed the entire point of the article.

      Wickard v Filburn was wrongly decided as the wheat law was unconstitutional (and also a bad idea).

      1. Apparently you missed the entire point of my comment.

        Many of us have been conditioned to think of constitutional as good.

        But they’re not the same thing.

        This is like WMDs and the Iraq War. I used to say to my fellow anti-war people right here–what are you gonna do if they find the WMD? Let’s not put all our eggs in that one basket, mkay?

        We got lucky on that one! We might not be so lucky this time. What if the individual mandate turns out to be constitutional? Then what are we gonna do? Sit around and gripe like a bunch of creationists?

        If the Supreme Court strikes down the individual mandate, I’ll be as happy as anyone. If they say it’s constitutional? Nothing changes for me, but we’ve got an awful lot of people out there right now who think our opposition is based on our belief that the damn individual mandate is unconstitutional. And I don’t know about you, but that’s not the basis of my criticism.

        My criticism is based on the idea that the individual mandate sucks. It’s bad law. It’s unethical, it sics the IRS on people who are too poor to buy health insurance, it distorts the markets, it does all sort of terrible things…

        Regardless of whether it’s constitutional!

        It goes that way with everything, by the way. The reason I support free speech and my right to own guns, among other rights and liberties, is NOT because they’re in the Constitution.

        I’d believe in those rights even if they weren’t in the Constitution. We’re putting the cart before the horse here. Our rights aren’t sacred because they’re in the Constitution; if the Constitution is sacred at all, it’s because it protects our rights.

        If the Constitution doesn’t protect my right not to have the government force me to buy whatever the government wants, then the Constitution is wrong. Seriously, we’ve got lots of other baskets. Let’s move some eggs around already!

        1. I think the mandate’s days are numbered apart from anything the Court does. It’s pretty unpopular (for good reason imo), especially among one party. This is a two party system and that one party is going to be in power now and then; the mandat’s unpopularity is going to be a great boon to the GOP in off year elections when the angriest people turn out and everyone else stays home. It just can’t survive…

        2. “It’s bad law. It’s unethical, it sics the IRS on people who are too poor to buy health insurance, it distorts the markets, it does all sort of terrible things…”

          I’ve never been able to believe tha liberals could defend it. Look, what have liberals been apoplectic about the past few years? Large, mean, evil corporations. Now here is a law that forces people to enter into contracts with some of the largest, meanest corporations around. And THIS is the signature achievement of a supposedly liberal President? WTF?

          1. It is incredibly hard to get rid of even unpopular laws once a constituency coalesces to defend them.

            To the Obama people, that’s a good thing. If the individual mandate isn’t ruled unconstitutional, I think we’ll see a lot of other bad things disappear before the individual mandate goes away.

            The Consumer Financial Protection Agency standing between working Americans and the home loans they want doesn’t have a snowball’s chance in hell over the long run. …but the constituencies I was talking about are only likely to coalesce against the CFPA.

            How the AMA, various healthcare providers, etc. line up, that just isn’t gonna be against the individual mandate. If the individual mandate isn’t declared unconstitutional, we may see marijuana decriminalization before we get rid of the individual mandate.

          2. The individual mandate is a tacit admission by liberal politicians that the liberal rank and file’s apoplectic rage is impotent against economic reality. The mandates on insurers with regards to preexisting conditions and such are unsustainable without the individual mandate.

            “And THIS is the signature achievement of a supposedly liberal President? WTF?”

            What liberals want with regards to things like health care can only be achieved by totalitarian policies. The WTF is not that Obama considers such a liberal achievement, it is how ignorant the Left’s base is.

            1. They really seem to think that anything that’s worth doing is worth forcing other people to do, too.

              I’m not sure it’s an admission as much as it’s their prime directive. That’s what denigrating conservatives and libertarians as stupid neanderthals is all about…

              Because we’re stupid neanderthals, we have to be forced to do the right thing!

              The WTF is not that Obama considers such a liberal achievement, it is how ignorant the Left’s base is.

              I’ve got a theory that the opposite sides of the liberal/conservative spectrum strive to become the caricatures their opponents make them out to be.

        3. Many of us have been conditioned to think of constitutional as good.

          But they’re not the same thing.

          Ken, you’re really insulting your audience’s intelligence when you say things like this. Seriously, please do not assume we’re all retards who need you to point out basic, but irrelevant to this topic, facts about the world.

          1. This would be a great place for you to start, Tulpa…

            http://www.usconstitution.net/constkids.html

            1. Sigh, I only posted that to be nice.

              I’ll know better in the future. Continue looking like a condescending fool if you prefer.

          2. Acutally, I think this is a good point. I don’t don’t if we are conditioned to think it is good or if that just happens.

            Let’ say that us Federalist could get the world we wanted and there was a very small government. That vacuum would be taken up by the states. Some States would impose very draconian anti-liberatrian laws that would completely fit with federalism but not libertarianism. There is no doubt that Alabama and Mississippi would turn into authoritarian shitholes. So, in those cases, my strong sense of federalism would lead to “bad” results.

            1. BTW, Ken is making the good point.

    3. I think the mandate is constitutional. It seems like a tax, and if it is the test is usually really deferential in allowing taxes.

      But even if you get past that I think the activity/inactivity is pure bunk from a constitutional perspective. Only if you read libertarian political philosophy into the concept “to regulate” do you get where it is going. Normally, such as in the experience of the states power to “regulate the morals, health and safety” of its citizens, when an entity is given the power “to regulate” in an area that includes the power to prescribe as well as proscribe (interestingly, I’m not sure why, from a libertarian perspective, the former should be seen as worse than the latter).

      I think the Wickard rule is actually much, much worse than the mandate. The commerce clause was clearly not written by libertarians; textually it’s a pretty broad grant: the power “to regulate…commerce among the states.” The ONLY qualifier in the text is that last part, that it only applies to interstate, not intrastate commerce, and the SCOTUS tossed that out…I understand why they through it out; it would be a judicial and policy nightmare to come up with regulatory schemes and bright lines between what is and isn’t “intrastate” enough to be exempt and “interstate” enough to not be, but it turned the clause upside down.

      1. I think the mandate is constitutional.

        No you don’t. You just want it to be constitutional, as declared by a complicit Supreme Court. There’s a difference.

        1. No, I think it’s a bad law. But the Constitution allows all kinds of bad laws. What kind of child thinks the Founders completely enshrined their personal political philosophy into the Constitution when they had their convention a few hundred years ago?

          In this case it says what it says…

          1. You either support the mandate or you’re playing contrarian. There’s no other explanation for a non-retarded person bringing up the “mandate = tax” argument that’s been laughed out of court, even in the courts that have upheld the mandate.

            1. As noted above it’s enforced by the IRS…Did you think the “tax” on machine guns used to effectively outlaw them was a tax? The courts did. That’s my point. Usually it’s a highly deferential test there.

              “that’s been laughed out of court”

              You’ve got even the most basic facts wrong, so it’s not surprising other steps built upon that base are so off-kilter…


              The 4th Circuit Court of Appeals in Richmond ruled that the law’s penalty for not buying insurance after 2014 is essentially a tax and thus cannot be challenged in court until consumers start paying it.

              Read more: http://www.politico.com/news/s…..z1l0EI8EU7

              1. Did you think the “tax” on machine guns used to effectively outlaw them was a tax?

                The legislation in question called it a tax, while PPACA explicitly denies it’s a tax.

                1. “while PPACA explicitly denies it’s a tax”

                  Really? I’m curious, how confident are you of this? I should think very the way you tossed it out there.

      2. I think the mandate is constitutional. It seems like a tax, and if it is the test is usually really deferential in allowing taxes.

        Oh you see but it seems like a tax, except it’s not a tax… because taxes are imposed on economic activity.

        This would be a tax on the lack of economic activity.

        I think of it more like Stimulus! Yeah, that’s it. The mandate is Stimulus!

        1. “because taxes are imposed on economic activity.”

          Says who? I think you’re reading your personal political philosophy’s assumptions into the concept we’re debating. That’s kind of begging the question…

          “A contribution for the support of a government required of persons, groups, or businesses within the domain of that government”

          http://www.thefreedictionary.com/tax

          1. Dictionary definition? You’re as bad as George Stephanopoulos.

            OBAMA: No, but ? but, George, you ? you can’t just make up that language and decide that that’s called a tax increase. Any?

            STEPHANOPOULOS: Here’s the?

            OBAMA: What ? what ? if I ? if I say that right now your premiums are going to be going up by 5 or 8 or 10 percent next year and you say well, that’s not a tax increase; but, on the other hand, if I say that I don’t want to have to pay for you not carrying coverage even after I give you tax credits that make it affordable, then?

            STEPHANOPOULOS: I ? I don’t think I’m making it up. Merriam Webster’s Dictionary: Tax ? “a charge, usually of money, imposed by authority on persons or property for public purposes.”

            OBAMA: George, the fact that you looked up Merriam’s Dictionary, the definition of tax increase, indicates to me that you’re stretching a little bit right now. Otherwise, you wouldn’t have gone to the dictionary to check on the definition. I mean what?

            STEPHANOPOULOS: Well, no, but?

            OBAMA: ?what you’re saying is?

            STEPHANOPOULOS: I wanted to check for myself. But your critics say it is a tax increase.

            OBAMA: My critics say everything is a tax increase. My critics say that I’m taking over every sector of the economy. You know that. Look, we can have a legitimate debate about whether or not we’re going to have an individual mandate or not, but?

            STEPHANOPOULOS: But you reject that it’s a tax increase?

            OBAMA: I absolutely reject that notion.

      3. It seems like a tax

        Congress and the president made extremely clear during their debates and other public advocacy that the mandate was not intended to be a tax. Courts are supposed to take legislatures at their word when it comes to determining what the purpose of legislation is. So it’s not a tax for the purposes of determining whether it’s constitutional.

        the states power to “regulate the morals, health and safety” of its citizens

        Does this quote come from some sort of binding legal document or long-accepted legal commentary, or did you just make it up?

        In the usual sense of the word, something has to exist before you can regulate it. Fuel injectors “regulate” the flow of fuel into the engine but they don’t make fuel.

        1. “Does this quote come from some sort of binding legal document or long-accepted legal commentary, or did you just make it up?”

          Nope, it’s a pretty general way that the police power is referred to in caselaw…If I were to cite a bunch of cases, then what? Would you say “well, shit, the mandate is constitutional, I was wrong.” That’s doubtful…

          “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.”

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

          “Courts are supposed to take legislatures at their word when it comes to determining what the purpose of legislation is.”

          And, while they denied it was a tax in speeches and things, they also said it was a tax in many instances too. With such a conflict, if they are supposed to be deferential to how congress styled it…

          1. Please God let the BO administration go to SCOTUS basing their case on the precise wording of an intro to a Wikipedia article.

            Not a slam on Wikipedia at all, but their choice of wording is very, very, very not legally-binding.

            And, while they denied it was a tax in speeches and things, they also said it was a tax in many instances too.

            Who said it was a tax? BO was livid at Snufalupagus for his temerity in suggesting it was a tax in the interview above.

            1. No, no, would you like to take a bet? If I can show the phrase is a common way caselaw refers to the police power (which surely includes prescriptions as well as proscriptions), then what?

              “Who said it was a tax?”

              Again, it was done several times. If I take the time to demonstrate that, like above when you said the claim it was a tax was laughed out of court, you are demonstrably wrong, what will you do? Will you declare your previous comments on this subject foolish and ill-informed and embrace the mandate as constitutional?

              Somehow I doubt this…

              1. You do understand the Federal Government does not have General Police Power, right?

                1. It’s always funny when someone who is missing the point tries to argue that the other guy is missing the point.

                  Of course I’m not arguing the IC clause=police powers, I’m pointing out that the concept “regulate” was comfortably associatied with contexts which included prescriptive governmental powers, such as its common reference to state police powers.

                  What, you want to argue that when courts used the word “regulate” when discussing state and local police powers it had a meaning which included presriptive powers but when its used in federal documents it suddenly loses that?

                  1. What, you want to argue that when courts used the word “regulate” when discussing state and local police powers it had a meaning which included presriptive powers but when its used in federal documents it suddenly loses that?

                    I mean that, within the context of the Founding of the country, the states were recognized to have general police power, and “regulate” meant one thing in that context, and the Federal Government was meant to have specific and limited powers, and “regulate” meant something else in that context.

                    You yourself admitted downthread that the word had multiple meanings, which means that, yes, it can have different legal meanings in differing legal documents.

                    1. The WORD regulate meant one thing when used in state cases and another in federal cases?

                      Where at all does anything say that the word or concept “regulate” when used in federal documents was not meant to hold the meanings it held when used in state cases and documents? You’re just sneaking your political philosophy’s assumptions into the word, and only when it’s used in relation to the federal government to boot!

                    2. The WORD regulate meant one thing when used in state cases and another in federal cases?

                      Yes.

                      You’re just sneaking your political philosophy’s assumptions into the word

                      So are you. And so what? Does that make me wrong?

                    3. Oh and:

                      Where at all does anything say that the word or concept “regulate” when used in federal documents was not meant to hold the meanings it held when used in state cases and documents?

                      Again, the context of the founding and the text of the Clause.

      4. “It seems like a tax, and if it is the test is usually really deferential in allowing taxes.”

        When the Dems were passing Obamacare they said that it was not a tax.

        “…I understand why they through it out; it would be a judicial and policy nightmare to come up with regulatory schemes and bright lines between what is and isn’t “intrastate” enough to be exempt and “interstate” enough to not be,…”

        Yes it would be. Perhaps that should be a sign to you are wrong that the authority that the commerce clause grants is as broad as you think it is. If you have to ignore the limitation on the authority that is unquestionably in the text, you have taken a wrong turn. Furthermore, SCOTUS has no legitimate power to simply ignore the text of the Constitution. Most Commerce Clause jurisprudence has been judical malpractice and corruption.

      5. The commerce clause was clearly not written by libertarians; textually it’s a pretty broad grant: the power “to regulate…commerce among the states.” The ONLY qualifier in the text is that last part, that it only applies to interstate

        Actually, it is not a broad grant. It was designed to “make regular” (i.e. “regulate”, not in the term as it is used today) commerce that occurred among the states i.e. interstate commerce.

        Even with Gibbons, the Court only extended this power to intercourse and those routes that composed intercoursal routes.

        the SCOTUS tossed that out…I understand why they through it out; it would be a judicial and policy nightmare to come up with regulatory schemes and bright lines between what is and isn’t “intrastate”

        They “threw it out” because Grand Marshall and All Around Asshole FDR threatened their entire branch.

        It isn’t a “judicial and policy nightmare” to come up with what is and is not “interstate”; the Court had done it for 135 years or so.

        But even if you get past that I think the activity/inactivity is pure bunk from a constitutional perspective.

        It isn’t “bunk” at all, and your citation to the General Police Power of individual states is weaksauce.

        1. “It was designed to “make regular” (i.e. “regulate”, not in the term as it is used today) commerce that occurred among the states i.e. interstate commerce.”

          Now THIS is weaksauce. What appears on its face to be a broad, general grant of regulatory power is actually just the implied power to strike down state commerce impediments. Yeah.

          Secondly, “regulate” had several meanings back then, only one of which was to make regular. The Constittion itself uses the term consistent with “make rules about” in other places…

          But even if we accepted your argument, what could be more of a boost to “making regular” insurance commerce than requiring participation in the market by everyone?

          “It isn’t a “judicial and policy nightmare” to come up with what is and is not “interstate”; the Court had done it for 135 years or so.”

          To the growing ridicule of most law profs and judges…You had bizarre, unworkable conclusions under such attempts, like that a game between the Boston Red Sox and New York Yankees is not interstate commerce…

          “your citation to the General Police Power of individual states is weaksauce.”

          Ah, but I’m not saying “IC Clause=police powers” with that cite, I’m pointing out that in caselaw the phrase and word “regulate” was consistently tossed in with police powers. You’ve been to law school, unlike Tulpa, and I’m betting you know that to be true…The word “regulate” has a long legal history of comfortably including prescriptive governmental powers as well as prohibitions.

          1. I will repeat my downthread argument

            Tell me what is wrong with this picture, MNG:

            [The Congress shall have Power] To regulate Commerce with foreign Nations, and among the several States, and with the Indian tribes;

            Read the “among the States clause” in pari materia with the other entities and let me know what you come up with. The word “regulate”, with the meaning you are giving it, makes no sense within the context of the Commerce Clause. Furthermore, “among the several States” does not mean “within a particular state”

            To the growing ridicule of most law profs and judges…You had bizarre, unworkable conclusions under such attempts, like that a game between the Boston Red Sox and New York Yankees is not interstate commerce…

            Oh, well, I guess if Erwin Cherminsky got his panties in a bunch because there wasn’t a Large Federal Government, we ought to ignore the plain text of the document. An appeal to authority is a loser argument.

            Here is real, plain-truth deal: if you really wanted the Commerce Clause to mean what I said it meant, you would believe it. Because you want a large grant of power given to the Federal Government, you want to read it the way you are reading it.

            But even if we accepted your argument, what could be more of a boost to “making regular” insurance commerce than requiring participation in the market by everyone?

            I am going to pretend that you didn’t just insult everyone’s intelligence by saying that. Making courses of commerce regular “among the states” means removing procedural barriers to trade (i.e. Dormant Commerce Clause powers).

            1. “Furthermore, “among the several States” does not mean “within a particular state””

              I’ve agreed with that on this very discussion dude.

              “ought to ignore the plain text of the document”

              What? You’re ignoring it. It doesn’t say anything about “removing procedural barriers to trade”. They knew how to say that btw, as Tulpa points out they said it in other parts of the Constitution.

              But the real hilarity is that what is on its face textually a grant of “the power..to regulate…commerce among the several states” is, in your mind, limited to only the power to enforce the implied converse that states can’t set barriers! You do realize why law scholars and judges call it “the Dormant Commerce Clause”, right? Because it has to be inferred from the text. Hilariously you’re arguing the only power from the grant is the inferred one!

              1. “The idea behind the Dormant Commerce Clause is that this grant of power implies a negative converse”

                Hilariously you want to argue that the only grant of power in the clause is in the implied negative of it!

                My goodness the lengths you will go to read your political philosophy into this document!

                1. Hilariously you want to argue that the only grant of power in the clause is in the implied negative of it!

                  Please stop citing Wikipedia. There are plenty of cases where the Court has stated that the text of the Clause commands the Court to employ DCC.

                  Please, also, note that when I said “DCC”, I meant actions that were like those taken in DCC Cases, not that Congress has no power at all. If you are going to deliberately misunderstand me, we are not going to have much to talk about.

              2. I’ve agreed with that on this very discussion dude.

                Not really, you have not. If it does not mean “removing procedural barriers to trade” and it does not mean what modern jurisprudence says it means, maybe YOU can define what exactly are these massive regulatory powers the Congress has.

                But the real hilarity is that what is on its face textually a grant of “the power..to regulate…commerce among the several states” is, in your mind, limited to only the power to enforce the implied converse that states can’t set barriers!

                This is like saying that a State Statute on Murder means that there is a “dormant” enforcement clause. It is part-and-parcel of the clause.

                1. The converse of the power may be part and parcel of the clause, but you’re ignoring the explicit part and trying to argue nothing from the explicit part remains! That’s pretty funny dude, and I think you realize you’ve stepped into it because now you’re softening that stance to say it’s just “part” of what’s called for…

                  It’s part all right.

                  1. “Not really, you have not.”

                    Yes, I have. Look, it’s obvious you struggle with textual analysis, but you should at least be familiar with what you wrote.

                    You wrote that among the states does not mean within particular states, and I’ve said quite explicitly here that Wickard is the problem, not the mandate.

                    “not that Congress has no power at all.”

                    Yeah, you said Congress has power…To enforce the negative of what the grant seems to give them…Now that’s funny.

                    1. Look at what you are arguing:

                      It’s as if your dad said “I have the power to regulate your affairs” and you want to argue that all that means is that is your sister can’t regulate your affairs and your father can only step in to prevent your sister from doing that. How strained is that? Why not just go with “your dad can regulate your affairs.”

                    2. When Art. I grants Congress the power to regulate the military, how is thw word being used there? Does it include prescriptive powers over those whose authority it applies to? Does it mean to make the military “regular?”

                    3. When Art. I grants Congress the power to regulate the military, how is thw word being used there? Does it include prescriptive powers over those whose authority it applies to? Does it mean to make the military “regular?”

                      Can you quote this section please?

                    4. No, you’re being goofily coy. I’m sure you know what I’m talking about. If you have a point, why not make it?

                    5. The power to regulate Armies, which we intended to be raised only in Times of War and dissolved immediately or at least shortly thereafter, is not the same context as the Commerce Clause.

                    6. You wrote that among the states does not mean within particular states, and I’ve said quite explicitly here that Wickard is the problem, not the mandate.

                      You don’t have a problem with Wickard, otherwise you would be agreeing with my analysis and discarding your own.

                    7. How do you figure that? Wickard create the “substantially effects” doctrine. The mandate is not being argued on those grounds.

                    8. How do you figure that? Wickard create the “substantially effects” doctrine. The mandate is not being argued on those grounds.

                      What? Yes it very much is.

                  2. MNG, please quote where I said DCC was the only power in the Commerce Clause.

                    Bet you can’t.

                    1. What other powers does it give the feds?

                      I’d say it gives them the power “to regulate…commerce among the several states…”

                      The motivation behind it is not a limitation of the power granted, you know? Scalia pointed this out regarding the 1st Amendment: the motivation was likely to protect and promote political speech, but the limit in the text applies to more than that.

                      I’d agree with you if you want to say that in writing the IC Clause one of the first and foremost concerns was to combat the states prior tendency to set up differing trade rules and tariffs. But they clearly granted a power larger than that in the text. you can’t read a grant to limit it to only its converse, that’s absurd.

                    2. But they clearly granted a power larger than that in the text. you can’t read a grant to limit it to only its converse, that’s absurd.

                      Asking you to quote me on this is getting tiresome. No wonder you always think you win – strawmen stand no chance.

                    3. Yes, the guy who accused me of making the argument that the IC Clause=state police powers because I pointed to the use of the term regulate in both and that I was arguing that his take on IC Clause is wrong because “Erwin Cherminsky got his panties in a bunch” thinks I’m making strawmans…

                    4. I was arguing that his take on IC Clause is wrong

                      There is no right or wrong in this context. How long is it going to take you to get that?

      6. It seems like a tax

        Except that Obama and those in Congress pushing it through the legislative process again and again insisted “it’s not a tax.” And in fact, they changed its designation in the legislation from a “tax” to a “penalty.” They argued over and over that it was not a tax – because if it were, that would violate His Holy Anointedness’s campaign promise that there would not be a single dime of tax increase on anyone making less than $200,000 (or whatever the magic number was).

        Additionally, for taxes to apply, there must be some kind of taxable activity – the tax is incident to something occurring. E.g., earn income, pay a tax. Buy a car, pay a tax. Someone dies and you inherit their fortunte, pay a tax. Buy a house and record a deed, pay a tax.

        Here, you’re not doing anything. There is nothing occurring as a taxable incident. Instead, it’s “buy insurance because we say you have to. If you don’t, we’ll charge you.”

        I know this will mean nothing to you, as we’ve beat this thing to death long ago, but there are very solid arguments as to why this clearly is not a tax – and in fact, as I recall, at least two federal courts expressly ruled that it was not a tax.

    4. So since you dislike the 3/5ths, I suppose you would rather have had the slave holding states get even more representation in Congress by fully counting individuals who were not allowed to vote or play any part in the political process? You might want to actually think through the ramifications of that before talking about how “the Three-Fifths Compromise sucked.”

      1. “You might want to actually think through the ramifications of that before talking about how “the Three-Fifths Compromise sucked.””

        Counting them as zero for represenation purposes would have been ideal (since they couldn’t vote), so 3/5 being pretty far from that did indeed suck. Did it suck as bad as full representation? No. But it still said something very sucky about where this country was that we went with 3/5ths…

      2. Slavery sucked.

        To whatever extent the Constitution sanctioned slavery, the Constitution was wrong.

        The Constitution’s take on that aspect of slavery was anti-freedom, so the Constitution’s take had to go–and I’m so glad it’s gone!

        The point was… It’s our rights and liberties that are correct, and the Constitution should only be held up as sacred to the extent that it protects our rights and liberties. To whatever extent the Constitution fails to protect our rights and liberties, it is deficient.

        If the Constitution fails to protect our right not to be forced by the government to buy whatever the government says, then that’s just the beginning of the argument–hardly the end.

        But I hear a lot of people say things that suggest the Constitution is always right. The suggestion underneath it, whether people realize it or not, is that the government should be free to do anything that’s constitutional. But I’m not buyin’ that for a minute.

        If the Constitution says it’s okay for the government to force me to buy health insurance, then the Constitution is wrong.

        1. It comes down to whether you believe the government (or the Constitution) is the source of our rights.

          Neither the government nor the Constitution are the source of our rights. Hell, the framers through the 9th Amendment in there just to make that abundantly clear.

          1. Nice English, huh?

            are is.

            through threw.

            You know what I meant!

          2. The Ninth doesn’t say anything about where rights come from. Read what’s there, not what you want to be there.

            Also note that the Ninth didn’t apply to the states, which were at the time free to violate even rights explicitly listed in the BoR.

            In any case, an unenforced right is for all practical purposes not a right at all. The Constitution is the bright-line determiner of whether a right is to be enforced or not.

            1. The Ninth doesn’t say anything about where rights come from.

              “The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people.”

              http://en.wikipedia.org/wiki/N…..ution#Text

              Plain English.

              I’d have to forget a whole hell of a lot about what I know about the framers, where they thought our rights came from, and the particulars of why they inserted the 9th Amendment into the Bill of Rights–before I got anywhere close to what I want to be there.

              1. Yep, I’ve read it before. Don’t see anything about where rights come from.

                I’d have to forget a whole hell of a lot about what I know about the framers

                The people who wrote the DoI didn’t write the Constitution.

                The people who wrote the Constitution for the most part did not write the BoR.

                And all these groups of people were quite diverse, not the doctrinaire libertarians that many here imagine them to be. And that’s before we get to the ratifiers.

                If it ain’t in the text, it ain’t there.

        2. A constitution is only as good as the people governed by it. And I say that as an ardent textualist.

        3. The Constitution isn’t right or wrong any more than your mortgage agreement or employment contract is right or wrong. It’s what was agreed to and we have to live by it (and so does the govt).

          Please note also that the Consitution doesn’t require Congress to regulate anything, it just allows it to.

          1. If only the Constitution was interpreted as strictly as most contracts are.

            1. Contracts don’t work quite as smoothly when they’re enforced by one of the parties.

      3. Chad Cambell? I think you should forget the commerce clause and hit the range- or it’s back to q school

  6. *barf* to those precedents

  7. Justice Thomas is a genius who has been severely abused by the MSM. Gems like this are priceless:

    “Justice Clarence Thomas remarked, “If Congress can regulate this under the Commerce Clause, then it can regulate virtually anything?and the Federal Government is no longer one of limited and enumerated powers.”

    1. Thomas is a tool.

      “However, a closer examination reveals that the eight justices involved in all three opinions?plurality, concurring in part and dissenting in part, and dissenting?agreed on the fundamental issue concerning Hamdi’s liberty interest. All eight justices agreed that the executive branch lacks the authority to hold U.S. citizens indefinitely in incommunicado detention
      without any constitutional rights or access to the courts. By contrast,
      Justice Thomas stood out all alone, in sharp contrast even with his usual
      philosophical allies, Chief Justice Rehnquist and Justice Scalia, by
      endorsing virtually unfettered executive authority to deprive U.S.”

      http://scholar.valpo.edu/cgi/v…..ntext=vulr

      1. They’re ALL tools.

      2. Thank God for Thomas!

        1. But… but… you told me, if I sucked… dammit!

          1. You have to admit that if we were at war, Thomas would be 100% correct. POWs are not entitled to due process. They are only entitled to be released at the end of the war. If the Congress wants Mr. Hamdi to have due process, it can rescind the AUMF.

          2. He got me that way, too, Ruth. And all *I* got was this crappy VP job.

  8. Constitution is gay. Seriously, government planners make sure I have food on my table and that we are not Somalia. And that we have roads.

    1. *sluuuuuurrrrrrrrrppppppp*

      1. And don’t you fuckin’ forget it, bitches.

  9. how about the opponents submit the argument, “fuck you; that’s why.”

    it seems to have a solid precedent in the supreme court.

  10. The Supreme Court unfortunately disagreed, ruling in Wickard v. Filburn that growing and consuming wheat entirely on your own farm still counted as interstate commerce that could be regulated by the federal government

    So growing weed on your own land for your own consumption would also fall well within the regulatory power of the federal government.

    We are so fucked on the drug war.

    1. To be specific, the Raich decision dealth specifically with weed within the state of California. Raich suggests that weed grown and sold within the state of California was subject to the commerce clause.

      The Filburn case suggests that one not need sell it or even give it to the neighbor. You’re interstate commerce if it never leaves the borders of your own property (which is only your property if you’re a property-rights extremist.)

      We’re double fucked.

      1. It does not suggest it — Scalia’s (in)famous concurrence spells it out. The mandate is constitutional under Scalia’s understanding, full stop.

        1. You fucking racists with your property-ownership bullshit.

        2. Understood. My point was that the Raich ruling dealt with commerce within the State of California where Filburn didn’t deal with commerce at all, but mere personal activity.

  11. Welcome to the United Socialist States of America. Enjoy living in a post constitutional republic!

  12. The Commerce Clause jurisprudence from McCulloch v. Maryland to Wickard v. Fillburn was one long downhill slide. Each individual step was a small one, seemingly insignificant at the time, but it added up to a complete evisceration of the notion of enumerated powers.

    1. Hah! “Enumerated powers”. How fucking quaint.

    2. It’s worse than that.

      If the ICC can justify forcing an individual to buy a product that they otherwise would not buy then it can be used to force a person to work at a job for a rate of pay that they otherwise would not. And to reside in a house that they otherwise would not choose to and marry a person that they otherwise would not.

      IOW we all become slaves of the state.

  13. It’s amazing that this Clause, which was primarily designed to stop states from charging tariffs between state to state purchases has now been used to force a Farmer not grow his own wheat, a pot grower not to grow their own weed, and now will force everyone who doesn’t have health insurance to go in to a contractual financial obligation with a giant healthcare company.

    How did we get from there to here?

      1. …Guns and Money.

    1. The Commerce Clause wasn’t primarily about interstate tariffs. Those were barred separately (and much more directly) by Art I Section 10. Even if that weren’t there, it’s hard to believe that they would grant power to Congress rather than just forbidding it to states.

      However, ICC was envisioned as a tool to make sure the entire country controlled interstate commerce rather than allowing states to interfere with it for their own selfish purposes.

      1. I see what you mean about tariffs and Art I Section 10, which is more specific. I guess I’ve always been under the impression that the framers were concerned that the states would charge exorbitant import/export fees in order to compete with their neighbors, and this would upset the idea behind the idea of a constitutional republic.

        But I’m still positive that they sure as hell never meant it to be used to force someone to buy something whether they wanted it or not.

        1. Yes, I’d agree with that. They did intend for the ICC to be, on the balance, supportive of commerce rather than restrictive.

          And of course they never would have thought Wickard and Raich would have been snuck in as they were (though taking the Senate out of control of state legislatures has a lot to do with the collapse of federalism).

          I tend to think that the Commerce Clause was just the easiest bit of text in the Constitution to use to sneak in the “reforms” progressives and leftists wanted. If it had been more precisely worded, they would have found something else to misinterpret.

          1. Good lord where did you learn your constitutional history from? The Commerce Clause got it’s initial push from conservatives, not progressives (federal obscenity bans and interstate lottery ticket sales go back to 1873 and 1890, respectively).

            “In 1895, Congress, acting under the Commerce Clause for the first time, extended the ban to all interstate commerce with the passage of Federal Anti-Lottery Act.”

            I guess you want to argue Grover Cleveland was a “progressive.”

            1. Another quote without a cite.

              In any case, I would be utterly shocked if that were the first use of the Commerce Clause, over a century after the Constitution was ratified.

              (federal obscenity bans and interstate lottery ticket sales go back to 1873 and 1890, respectively)

              Except those are actually dealing directly with interstate commerce. I was referring to the stretching of interstate commerce to cover things that don’t cross state lines, which is a ‘progressive’ thing from the 1930s.

              They still thought banning a substance required a constitutional amendment in 1918, remember. Under the current leftist understanding of the ICC the feds could ban alcohol by a mere act of Congress.

              1. “Another quote without a cite.”

                Dude, cut the quote into google. WTF?

                “Except those are actually dealing directly with interstate commerce.”

                Alright, here comes the goalpost change. First it was “leftists started to use the IC Clause for their pet projects, now it’s well, maybe not, but they first used it wrongly!”

                1. MNG, he has a point about the 18th Amendment. If the Commerce Clause has “always” been a broad grant of regulatory power, why the need for Prohibition?

            2. Good lord where did you learn your constitutional history from?

              You are not doing much better.

              Tell me what is wrong with this picture, MNG:

              [The Congress shall have Power] To regulate Commerce with foreign Nations, and among the several States, and with the Indian tribes;

              Read the “among the States clause” in pari materia with the other entities and let me know what you come up with.

              1. Sigh, we’ve done this before, don’t you know my answer? Why do this silly dance? Make your point so we can get it out of the way. You want to say something about the parts about the foriegn nations and Indian tribes, right?

                1. Yes, don’t you? The text is right there.

                  1. Ok, here we go. You want to say “it can’t mean positive regulation because the feds can’t positively regulate trade in other nations?”

                    Right?

                    1. See, when you’re arguing with a person and they know exactly what you are getting at but you keep missing their point, that’s usually not a good sign for you…

                      That’s your argument, right? It’s a cute one and one that I guess gets some mileage if you avoid debating anyone intelligent that might disagree with you. Otherwise such a person might point out that your reading has prety much the same problem: Congress can’t set the trade barriers of other nations and Indian tribes either…

                    2. But you’ve got more problems than that…Do you have a response for Tulpa’s point about Art. I sec 10

                      Tulpa|1.30.12 @ 8:50PM|#
                      The Commerce Clause wasn’t primarily about interstate tariffs. Those were barred separately (and much more directly) by Art I Section 10. Even if that weren’t there, it’s hard to believe that they would grant power to Congress rather than just forbidding it to states.

                    3. I mean, it’s bad enough you want to argue that only the only powers granted by the clause are it’s implied negative converse, but what’s worse is that power was already more directly spelled out elsewhere!

                    4. I like how you have three posts assuming what my argument is going to be. It reminds me of this.

                      Free hint: you’re wrong. Try again.

                    5. How about you make your argument?

                    6. Are you actually going to take it in good faith, or are you going to act like an asshole like you are with this dumbass DCC rigamarole upthread?

                    7. I don’t click on links here. You can’t state your argument?

                    8. Why do you think they mentioned two foreign entities and the States?

                    9. This is silly. If you have an argument, you should make it.

                    10. No. If I gave it to you, you would just take it, quote me out of context, run off to Wikipedia, come back and declare me “wrong”.

                      I am tired of this game. have a great evening!

                    11. It’s late, so let me make my final argument and go to bed, maybe when I wake up in the morning you will have made yours.

                      1. The text of the IC Clause gives a power “to regulate” to the feds limited textually only by the fact that it must be 1.commerce and it must be 2. among the states.

                      2. I’ve yet to see you prove there is some implicit limit “built in” to the word regulate that bars it from referring to prescriptive as well as prohibitory powers. The term encompasses both when it refers to the Congress’ power over the military (note, I’m not making the argument that the Congress’ power over the military=their IC power, just noting how the word is used); it refers to both in much caselaw when discussing state powers like the police power.

                      3. The motivation might have been to limit state trade barriers, but the text grants a power beyond that motivation much like the 1st Amendment speech clause does.

                      4. To read the explicit grant of regulatory power as simply equal to, or even little more than, it’s implied converse seems strange (refer to my father/sister analogy above).

                      5. Art. I Sec. 10 not only suggests your reading is duplicated, it also shows that when the Founders wanted to target state trade barriers they knew how to in a much more direct way than by reading an explicit grant as only one of its inferred negative.

                    12. rvb,

                      Seriously dude, let it go. Mingey is less dishonest than Tony, but still the same side of the coin.

                      Some folks just don’t get it.

                      And Mingey, since you’re reading this, pick a side-

                      Political tags – such as royalist, communist, democrat, populist, fascist, liberal, conservative, and so forth – are never basic criteria. The human race divides politically into those who want people to be controlled and those who have no such desire. ? Robert A. Heinlein

                      It’s not a debate or argument really. Either you are on the side who wants to control or you aren’t.

                      Labels have nothing to do with it.

                    13. Seriously dude, let it go. Mingey is less dishonest than Tony, but still the same side of the coin.

                      He’s not a bad sharpening stone, but it can get tiresome being deliberately misrepresented and misquoted. Also, the “Arugmentum Ad Wikipedia” is getting old, too.

                    14. “You’re just sneaking your political philosophy’s assumptions into the word

                      So are you. And so what? Does that make me wrong?”

                      See, this is the problem here.

                      According to me, the power “to regulate” commerce means “the power to make rules concerning” commerce. Those rules could be whatever a future Congress determines, libertarian, socialist, whatever, as long as they don’t pass the other limits on the text (have to be concerned with commerce among the states).

                      But you read libertarianism into the very word “regulate” so that it is not a power granted but becomes conflated with a motivation or goal Congress must use its powers toward, and conveniently a libertarian one! For you “regulate” means “to make regular”, which you define as something like the DCC, combating trade barriers, so unlike the other provisions of Art. I Sec. 8 it’s not a grant of a power but the establishment of how, in what direction, powers must be used.

                      The other provisions in Art I. Sec. 8 list powers, not goals. You’ve read goals into this one; you don’t describe what powers Congress is granted, you’ve described how and to what purpose those powers can be used. And, of course, it’s libertarian goals you’ve limited the word to mean…

                    15. MNG, please tell me why it is that the canon of interpretation on the criminal code calls for those laws to be construed and read narrowly. Free hint: is that because that is how the legislators who passed the code meant it to be read, or is it something else?

                    16. For you “regulate” means “to make regular”, which you define as something like the DCC, combating trade barriers, so unlike the other provisions of Art. I Sec. 8 it’s not a grant of a power but the establishment of how, in what direction, powers must be used

                      I’ll just note that for you, it doesn’t, but your rationale isn’t because you adhered to some time-honored and ancient objective interpretation. You want the commerce clause to be read broadly, because you want the government to have that power.

                      Reading a clause “narrowly” is not dragging “libertarianism” per se into it, any more than reading “unreasonable” in the Fourth Amendment broadly or reading the Eighth Amendment’s “C&P” clause broadly is bringing “liberalism” or “progressivism” into the interpretation.

                      End your adherence to the culture war and maybe you would see that.

  14. Dude know he is like totally rocking it, makes you wonder, Who’s your Daddy!

  15. WRONG. What this article leaves out is that Filburn voluntarily entered into an agreement with the federal government. He saw a good deal (monetary incentives for not maximizing my labor!) and took it, but didn’t want to uphold his part of the bargain. No one forced him to into a contract with the federal government. This article entirely glosses over this, which I guess it has to make it look like it has a strong argument against this Supreme Court case.

    1. Still bullshit on the part of the government, Trilby, agreement or not.

      1. @Mr.FIFY No, what would be wrong was if they didn’t enforce contracts as they were meant to be. If a fine was so outrageous, the farmer didn’t have to sign the agreement. The only thing I see wrong here is this wildly uninformed article.

  16. The only way to argue that the mandate is Constitutional is to disregard the language of the Commerce Clause, and argue from SCOTUS precedent.

    That works if you think “Constitutional” means “whatever SCOTUS says”, rather than “what the Constitution says.”

    That’s what it boils down to.

    What this article leaves out is that Filburn voluntarily entered into an agreement with the federal government.

    None of the backstory is relevant to the SCOTUS decision, which went off strictly on the question of whether the Commerce Clause reached wheat grown and consumed on a single farm. Period. Trust me. I’ve read it. Pull quotes:

    “But even if appellee’s activity be local and though it may not be regarded as commerce, it may still, whatever its nature, be reached by Congress if it exerts a substantial economic effect on interstate commerce and this irrespective of whether such effect is what might at some earlier time have been defined as ‘direct’ or ‘indirect.'”

    What an extraordinary statement. The Court here is saying that Congress’s authority over interstate commerce extends to non-interstate non-commerce.

    1. “””The only way to argue that the mandate is Constitutional is to disregard the language of the Commerce Clause, and argue from SCOTUS precedent.””

      Which is why I think it will be held constitutional even though I believe it is not.

  17. Granted I don’t know squat about the Filburn case. What did the government mandate he buy?

    I know there’s a price control angle but unless Filburn was mandated to purchase something, I don’t see how it should have much bearing.

    1. The government didn’t mandate he buy anything. The government offered him a deal, and he took it. Part of the deal was he could only grow a certain quantity of wheat (for commercial/non-commercial use). He violated the agreement, and the government fined him, since the fine was part of the agreement.

  18. The scripts here knock me off line so often, I posted this in the wrong thread:

    The Supreme Court unfortunately disagreed, ruling in Wickard v. Filburn that growing and consuming wheat entirely on your own farm still counted as interstate commerce

    No. What they ruled was that it had enough effect on interstate commerce that in order for Congress to put into effect its regulation of interstate commerce, it was also necessary and proper that Congress have the power to regulate this. The courts didn’t change the meaning of interstate commerce, but they ruled that things potentially affecting interstate commerce enough could be regulated by Congress too, as a step in the process of regulating interstate commerce. That’s the reasoning that has been used to mandate purchase of insurance policies — that the aggregate effect of people’s not buying insurance has enough of an effect on the business that regulating interstate commerce in that business — to the tiny extent that exists — requires mandating such purchases. In other words, that it’s an incidental part of a regulation on the (tiny) interstate health insurance business.

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