Obamacare

ObamaCare May Be in Legal Trouble, But the New Deal Is Not

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What doomsday scenario will unfold if the Supreme Court strikes down the Patient Protection and Affordable Care Act's individual mandate? Here's the parade of horribles envisioned earlier this week by President Barack Obama:

"We have not seen a court overturn a law that was passed by Congress on an economic issue, like healthcare, that I think most people would clearly consider commerce," the president said. "A law like this has not been overturned at least since Lochner. Right? So we're going back to the '30s, pre-New Deal."

Wrong. Lochner v. New York concerned a state regulation, not a federal one; the law was struck down under the Due Process Clause of the 14th Amendment, not the Commerce Clause; and the decision came down in 1905, not "the '30s." Also, the Supreme Court struck down all sorts of state and federal economic regulations after Lochner was decided, so the case hardly represents some sort of outer marker. These aren't earth-shattering errors by the president, of course, but they are a little unfortunate coming from a former constitutional law lecturer. (Nor is this the first time Obama has been wrong about Lochner.)

But more important, the legal challenge to the individual mandate has nothing whatsoever to do with overturning any New Deal era precedents. When Randy Barnett, Paul Clement, and the other legal challengers argue that it would be unprecedented for the federal government to force us all to buy health insurance from a private company, they mean precisely that. The Supreme Court has never before recognized such a sweeping form of congressional power under the Commerce Claue. The individual mandate is thus without legal precedent. And because the mandate cannot be justified under any existing line of cases, the Supreme Court doesn't need to overturn any of its previous decisions if it decides to strike the mandate down. So the New Deal's landmark Commerce Clause rulings, like Wickard v. Filburn (1942)—which allowed Congress to regulate purely local economic activity if that activity has a "substantial effect" on genuine interstate commerce—won't be touched at all.

The president may breathe a sigh of relief.

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123 responses to “ObamaCare May Be in Legal Trouble, But the New Deal Is Not

  1. Regulars will recall that I think the statement that ObamaCare’s mandate that somebody buy a good or service they would not otherwise buy is hardly unprecedented; such mandates are, in fact, commonplace.

    Further, they are imposed because of the effect the regulated person (such regulations apply to individuals and legal entities alike) has on interstate commerce, not necessarily because the individual is already active in some interstate market (however defined).

    It is trivially easy to read existing precedent to cover a mandate that someone buy a good or service because of the effect that person has on interstate commerce.

    While distinctions can be made between existing mandates and OCare, those distinctions are either (a) not obvious or (b)easy to apply in a way that does not fundamentally challenge Wickard and its progeny.

    1. I am not a lawyer but seems the whole “interstate” part goes out the window since the health insurance system is rigged so that consumers can only purchase from certain options within their respective states. It’s not like car insurance where one can consider numerous options, both traditional and web-based.

      The mandate forces you to buy BUT it also limits consumers to a certain number of choices that have been pre-determined by their respective state leaders.

    2. …such mandates are, in fact, commonplace.

      Examples, please.

      1. You run a manufacturing facility. Federal law and regulations require that you purchase a whole slew of safety equipment.

        You run a power plant. Federal law and regulations require that you purchase boxcars of pollution control equipment.

        You want to take your company public. Federal law and regulations require that you purchase the services of an accounting and law firm to issue opinions.

        Your company is public. Federal law and regulations require that you purchase the services of an accounting firm to do audits.

        Seriously, I can do this all day.

        1. Sure you could. But nothing makes you open a widget factory. You can always opt out of those regulations by not participating in the form of commerce.

          The mandate is different. You can’t not participate in the commerce. Everyone is subject to it, not just people who choose to engage in a particular form of commerce.

          You analogy doesn’t work.

          1. John, you are right. The system works. Let’s have more of it.

            1. What does the “system working” whatever that means have to do with the analogy? The analogy fails. You don’t have to overturn Wickard or any of the New Deal cases to kill the mandate. You could, but you don’t have to.

              1. You could should, but you don’t have to.

          2. But nothing makes you open a widget factory.

            First, this is at most an argument that the thousands of existing mandates are “conditional” mandates that apply only if you engage in a certain activity. It doesn’t refute the fact that mandates are commonplace.

            Second, it is not clear to me at all that choosing to engage in a given activity gives Congress power that it otherwise would not have. If Congress can’t order me to buy safety equipment unless I run a manufacturing facility, then how does the fact that I do run a manufacturing facility create this authority in Congress?

            Finally, the justification for those mandates is the “effect” on interstate commerce that the person subject to the mandate has.

            Everyone is subject to it, not just people who choose to engage in a particular form of commerce.

            By conceding that everyone engages in or affects interstate commerce, you concede that everyone is subject to the Commerce Clause. Why, then, can they not be subjected to mandates?

            1. It doesn’t refute the fact that mandates are commonplace.

              No it doesn’t. But it shows that not are mandates are the same or analogous to one another.

              Second, it is not clear to me at all that choosing to engage in a given activity gives Congress power that it otherwise would not have.

              How can it not be. That is the whole point of the clause. Congress has the power to regulate commerce between the states. Therefore, you have to engage in commerce to be subject to Congress’ power. Congress can force you to buy safety equipment because you are engaging in commerce and it has the power to regulate that commerce. You have to pass the threshold of engaging in the activity to be subject to the power.

              In the case of the mandate, Congress is compelling you to enter commerce so it can regulate you. That is a big difference and why your analogy fails.

              1. Therefore, you have to engage in commerce to be subject to Congress’ power.

                That’s not what SCOTUS has ever said. Wickard, again, applied to someone who SCOTUS explicitly recognized was not engaged in interstate commerce.

                Congress is compelling you to enter commerce so it can regulate you.

                No, its not. You already affect interstate commerce, either because you live in the US and can’t avoid it or, more specifically, because everyone who lives in the US affects the risk pool for healthcare just by living here.

                1. That’s not what SCOTUS has ever said. Wickard, again, applied to someone who SCOTUS explicitly recognized was not engaged in interstate commerce.

                  That is not what Wickard said. Wickard said he was engaging in interstate commerce despite his claims to t he contrary. In Wickard he was growing the wheat. That put him in interstate commerce. To make Wickard analogous to the mandate, Congress would have had to have ordered everyone in America to plant a wheat field in their back yard.

                  No, its not. You already affect interstate commerce, either because you live in the US and can’t avoid it or, more specifically, because everyone who lives in the US affects the risk pool for healthcare just by living here.

                  You don’t effect the risk pool if you are so wealthy you are no danger of ever not being able to pay your medical bills or you will never visit a doctor because of your religious beliefs. Not everyone affects the risk pool. That is a complete fallacy.

                  1. Wickard said he was engaging in interstate commerce despite his claims to t he contrary.

                    Actually, SCOTUS said he was not engaging in interstate commerce at all, but could be regulated because his non-participation in interstate commerce affected interstate commerce.

                    You don’t effect the risk pool if you are so wealthy you are no danger of ever not being able to pay your medical bills or you will never visit a doctor because of your religious beliefs.

                    Yes, you do. The risk pool consists of everybody who could need health care. The issue of how to fund the risk pool is a separate issue. If you can pay for your own care, or have insurance, makes no difference. You are still in the risk pool, and thus affect interstate commerce per SCOTUS.

                    Similarly, the odds that you will receive health care are irrelevant to whether you are in the risk pool, and it is not possible to say that any given person will not, under any circumstances, receive health care.

                    1. The risk pool consists of everybody who could need health care.

                      No, this is not true. The risk pool is a conceptual term in health insurance, not health care.

                      If you can pay for your own care, or have insurance, makes no difference. You are still in the risk pool

                      No, again, if you pay for your own health care, you are not in the risk pool relevant for a National Health Insurance scheme.

                    2. No, again, if you pay for your own health care, you are not in the risk pool relevant for a National Health Insurance scheme.

                      I have to disagree. Whether your health care is funded or not is irrelevant to whether you are in the risk pool.

                    3. Whether your health care is funded or not is irrelevant to whether you are in the risk pool.

                      On what basis? What risk pool? Define it for me.

                      If you mean that I am a human being and I may get sick, and that means I am in the “risk pool”, that is bootstrapping and I think you know that.

                    4. The risk pool, on a national level, consists of everyone who may receive health care services.

                      Which is to say, everyone.

                    5. You are not in the risk pool. The “risk pool” is a risk of you not paying for your own health care. What else is there a risk of?

                      And Wickard effectively engaged in interstate commerce because his act of growing wheat did so. No one ever said he had to try and grow wheat.

                      Wickard can be limited to its facts. All you are saying here RC is that you can make an argument that Wickard applies. But you don’t have to. You can easily distinguish Wickard. You don’t have to over turn Wickard kill the mandate.

                    6. Actually, SCOTUS said he was not engaging in interstate commerce at all, but could be regulated because his non-participation in interstate commerce affected interstate commerce

                      For reference, it was “Filburn” who was the farmer.

                      SCOTUS said that IF you took Farmer Filburn’s activity and aggregated it, that provides the reasoning as to why the Commerce Clause can apply.

                      Key quote:

                      But even if appellee’s activity be local and though it may not be regarded as commerce, it may still, whatever its (activity’s) nature, be reached by Congress if it (activity) 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.’

                      Wickard v. Filburn, 317 U.S. 111, 125, (1942)

                      All those “it”s in there point to activity.

                    7. That’s what the challenge is based on, in a nutshell: the reference to “activity.”

                      They have a couple of difficulties, though.

                      (1) SCOTUS has never said explocitly that some level of activity is necessary to trigger the Commerce Clause. They have only said some de minimis level of impact on interstate commerce is.

                      (2) It is trivially easy to identify some “activity” that everyone engages in that has the requisite effect.

                      And SCOTUS has never, ever, said that the activity that effects interstate commerce has to have some relationship to the regulation at issue. That’s a can of worms that I doubt they will want to open, even if they overturn.

                      And, of course, there’s the argument about everyone being in the health care risk pool.

                    8. SCOTUS has never said

                      Then there isn’t precedent on the matter, is there?

                      It is trivially easy to identify

                      And by that logic we are all subject to the EPA because we exhale a “pollutant”.

                      Who the hell are you and what have you done with the real R C Dean?

                2. If I recall the specifics of Wickard v. Filburn correctly, under New Deal cartelization, he was given a specific fixed allotment of how much he grew. The amount he grew over that limit he claimed for his personal use was the matter under dispute as it allowed him to game the limitation.

                  I don’t agree with the decision. It was obviously an expansion of power at the time it was written for a clause that was more about forbidding the states from engaging in tariffs and treaties with one another.

                  http://www.bu.edu/rbarnett/Original.htm

                  The U.S. Supreme Court, in recent cases, has attempted to define limits on the Congress’s power to regulate commerce among the several states. While Justice Thomas has maintained that the original meaning of “commerce” was limited to the “trade and exchange” of goods and transportation for this purpose, some have argued that he is mistaken and that “commerce” originally included any “gainful activity.” Having examined every appearance of the word “commerce” in the records of the Constitutional Convention, the ratification debates, and the Federalist Papers, Professor Barnett finds no surviving example of this term being used in this broader sense.

                  1. In every appearance where the context suggests a specific usage, the narrow meaning is always employed. Moreover, originalist evidence of the meaning of “among the several States” and “To regulate” also supports a narrow reading of the Commerce Clause. “Among the several States” meant between persons of one state and another; and “To regulate” generally meant “to make regular”–that is, to specify how an activity may be transacted–when applied to domestic commerce, but when applied to foreign trade also included the power to make “prohibitory regulations.” In sum, according to the original meaning of the Commerce Clause, Congress has power to specify rules to govern the manner by which people may exchange or trade goods from one state to another, to remove obstructions to domestic trade erected by states, and to both regulate and restrict the flow of goods to and from other nations (and the Indian tribes) for the purpose of promoting the domestic economy and foreign trade.

                    Indeed, the precedent should be fully overturned, but this is likely not the case to do so as John pointed out, it is unnecessary.

              2. Therefore, you have to engage in commerce to be subject to Congress’ power.
                ———————–
                if I am following the logic here, you are not just engaging in commerce, you are being FORCED to engage in a specific type of commerce, thus making you subject to Congress’ power. That’s a hell of a trick.

                1. Therefore, you have to engage in commerce to be subject to Congress’ power.

                  That’s the trick, though: SCOTUS has never said that. What they have said is that if you affect interstate commerce, you are subject to the Commerce Clause.

                  1. RC, unless you think the unchosen act of being born means you “affect” interstate commerce, then those words have to have some limits, and the activity/inactivity distinction is an excellent one to mark.

                    1. By RC’s argument, breathing is exactly analogous to opening a widget factory. And that is nonsense.

                    2. Being alive affects interstate commerce. So does opening a widget factory. And affecting interstate commerce is what SCOTUS says matters.

                      It may be nonsense, but don’t blame me. Blame SCOTUS.

                    3. Like I said, I think you’re fundamentally misreading Wickard. The decision (to me) says if you engage in an activity, and if that activity, when aggregated across the nation, has a substantial effect on interstate commerce, Congress can therefore regulate that local activity.

                      But if you have to actually be doing something.

                    4. Randian, I hope SCOTUS agrees with your reading of Wickard.

                    5. OK, this is exactly why the conservatives on the Court have a problem. If they follow this logic they end up with the liberals and totally unlimited federal govt.

                2. Yes, actually, wareagle and John are correct here. Congress is doing what is commonly known as “bootstrapping” – they are attempting to force you to engage in commerce against your will, THEN because you are engaged in commerce, regulate your commercial activity.

        2. Seriously, I can do this all day.

          Since it obviously doesn’t take much effort to be completely wrong… I’m sure you could do this all day. Thank you for clarifying the fact that you don’t know what you’re talking about.

          1. I know what I am talking about. The government is doing what is legal but it is wrong. This is to be expected since the government makes and enforces the laws- old laws are interpreted.

          2. In what way are these not mandates to purchase goods or services?

            They may be “conditional” mandates, but are they not mandates nonetheless?

            1. What is an example of an individual consumer, not running any sort of business, currently or in the past, being forced by the federal government to purchase a good or service?

              1. I’m thinking some of the environmental regs would probably qualify. I’m no expert, but those wetlands regs, for example, require a property owner to do certain kinds of surveys and perhaps build in a certain way, even if what they are doing is building their house.

                And, yes, the EPA is a creation of the Commerce Clause. I checked.

                1. I knew about the EPA being a CC creation, but I do not know of a single instance when the EPA cam down and said a private individual, let alone a whole class of them, must make a purchase. Yes, they come down (wrongly) on property owners all the time telling them what they can’t do with their own property. Do you have an instance where the new owner of a piece of land, with no improvements or modifications, was forced to purchase anything for it?

                  For example, they seem to be crazy about wetlands, and I recall a case where the sea-level would have to rise tens of yards to reach a property for their “wetlands” guidelines to be in play in reality. I do not know of an instance where dry land was ordered flooded by the EPA so that it could be regulated as a wetland.

                  1. Do you have an instance where the new owner of a piece of land, with no improvements or modifications, was forced to purchase anything for it?

                    I’m not an EPA expert, so I couldn’t say for sure. I don’t know of anything that says, for example “If you own property that is designated as a wetland, you must do X” that isn’t connected with first wanting to make some improvement to the property.

                    Your initial question was whether there were any examples of mandates that applied to someone in their capacity as an individual, not in their capacity as a business. I think the answer to that is yes.

                    1. Your initial question was whether there were any examples of mandates that applied to someone in their capacity as an individual, not in their capacity as a business. I think the answer to that is yes.

                      No, it was if the federal government had ever forced an individual private consumer to purchase anything and the answer appears to be no, especially in light of the difficulty in anybody finding a single example of that. States, yes no matter how wrong, but federal is flatly no.

                    2. Your initial question was whether there were any examples of mandates that applied to someone in their capacity as an individual

                      Actually you are wrong on that. It isn’t by virtue of being an individual that the regulations apply – it is by nature of that particular piece of property. If you say that the EPA can regulate any ownership of property, then they can in fact order you to flood your property so they can regulate it as a wet-land. Cart, horse, etc.

                    3. By the way, if the regulation applied against the individual, there could never be a Takings Clause challenge raised (as there have been, some even successfully).

        3. Mr. Dean,

          You don’t seem to be making the proper distinctions here. Opening a factory, driving a car, are actions in which you may harm someone. Perhaps it is legitimate for government to require steps be taken to insure that if you do harm someone you must pay for the damages you create (this is quite reasonable).

          My purchasing of health care with cash or an HSA card, rather than health insurance, in no way shape or form causes you any harm.

          The health care mandate is clearly unconstitutional AND unprecedented. It is inexcusable and anyone defending it is not thinking clearly or deeply about the subject.

          1. Mr. Dean,

            No comments on this? Come on now… 😉

          2. OK, if you insist.

            SCOTUS has never said that Congress only has the authority to regulate activities that may cause some harm.

            The basis for ObamaCare is that not having any funding for your healthcare does, in fact, harm other people, via cost-shifting.

            1. This is a weak answer, which is stunning considering I have to argue within the constraints of poorly reasoned SCOTUS law.

              The court hasn’t given congress the power to mandate people buy health care so we HAVE to look at issues where government does have the power to mandate purchasing of insurance.

              What I discovered here, is that it is all related to mitigating harm to others (externalities caused by your actions).

              The distinction I also discovered is that there is more than one way to pay for health care (insurance is one of many means).

              Finally, the cost shifting argument is also weak at best. People arguing in favor of ObamaCare do so from the standpoint that they want to help the poor. But if they actually wanted to help the poor, you would be happy to subsidize their care through your own purchase of health care with your local doctor, rather than forcing the poor person to buy a policy they can’t afford or pay a penelty they can’t afford.

              Also, you can’t say the mandate elivates cost shifting, again, because I can buy health care with cash or an HSA causing no cost shifting at all. ObamaCare makes those alternatives impossible.

              1. Yes, when you really think obamacare through, the mandate is a way of making the working poor bear more of their healthcare costs.

                1. My favorite part is how badly they fouled this up. I mean, the Democrats really (as they say in the military) fucked this up by the numbers. If they had the fortitude to simply call it a “tax”, they would have completely won. Instead, something that passed after 60 years of trying on the slimmest of margins and the shadiest of parliamentary procedure is going down in flames.

                  I am going to go the nearest Progressive meet-up and pull a Cartman/Tenorman and literally lick the tears from their faces.

            2. As Suderman pointed out, the cost shifting of the uninsured is slight compared to that of those who are insured who take full advantage of the mandates imposed by the states for a free ride above what they are actually paying into it.

              A more interesting question would be, as it may come up at some point a decade so down the road, would it be constitutional to forbid insurance as its tertiary nature tends to jack up the price structure and replace it with a single payer system?

        4. All of your examples take the form of “If you do A then you must purchase B”.

          You have a choice in the matter. If you don’t want to be forced to purchase B, don’t do A.

          The difference with the insurance mandate is that A is “are alive”.

          The only way to get out of purchasing B is to kill yourself.

    3. And I think you completely miss the point. All of the examples you give are mandates on people after they have chosen to enter a particular form of commerce. The insurance mandate in contrast applies to everyone, even people who are either rich enough to self insure or refuse medical care for religious reasons. No federal regulation says that everyone has to open a widget factory and buy XY and Z safety equipment. It only says if you do open such a factory, you have to buy the equipment. That is a huge difference.

      1. John, you are missing the point. There are a few patriots who believe that the goverment has too much power regardless how the constitution is interpreted.

        1. Good for you. But that is not the argument we are having.

          1. That is the argument that you should be having because that is what is important. Anything else recognizes the authority of a constitution that cannot be understood.

      2. It only says if you do open such a factory, you have to buy the equipment. That is a huge difference.

        Up until now, regulations have been drafted this way. However, there is nothing in SCOTUS precedent that says that Congress can only apply conditional mandates, and the precedent easily supports a couple of responses:

        (1) The only condition that SCOTUS has ever recognized as being necessary to triggering Commerce Clause regulation is whether the person being regulated has an effect on interstate commerce. Indeed, the point of Wickard is that the wheat farmer was trying to opt out of interstate commerce, was not engaged in any “activity” in interstate commerce, but because his inactivity in the interstate wheat market “affected” that market, he could be regulated.

        (2) SCOTUS has never said somebody has to be voluntarily engaged in interstate commerce to be subject to the Commerce Clause, and in fact has said that such engagement is not necessary. Wickard, again.

        The fact that existing mandates are conditional is not because making them conditional is necessary to them being Constitutional. The conditions are included as a matter of policy, not necessity.

        The SCOTUS precedent is terrible. So terrible, in fact, that I think the easy application of that precedent is upholding ObamaCare. What’s hard is constructing a new limiting principle from scratch, and that’s what the Court will have to do to overturn ObamaCare.

        1. The problem is, you are starting with the assumption that Wickard was a valid decision.

          Its an invalid assumption.

        2. You misread Wickard. The farmer in Wickard was doing something. He was growing wheat. His claim that he was just growing it for personal consumption didn’t mean he wasn’t in interstate commerce. By growing wheat he changed the national supply of wheat and therefore affected interstate commerce. Just because you don’t sell the product you produce to others, doesn’t mean you are not engaged in commerce. That is all Wickard stands for. You are completely misreading Wickard.

          1. You misread Wickard.

            I don’t think so. Two 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.'”

            “The stimulation of commerce is a use of the regulatory function quite as definitely as prohibitions or restrictions thereon.”

            What Wickard says is that engaging in commerce is not necessary, and that the only condition for application of the Commerce Clause is having an effect on interstate commerce.

            It also says that Congress can “stimulate” commerce, that is, require you to engage in specific forms of commerce, if you have an effect on interstate commerce.

            1. But even if appellee’s activity

              Wickard only applies when you are affirmatively doing something. Congress can keep you from doing things. But nothing in Wickard says they can force you to do something. And again, the examples of “stimulate commerce” are dicta. That is not the strict ruling.

              1. So, anyone who grows any plants in a garden… is affecting interstate commerce.

                Shit, I hope Obama doesn’t read this post.

                1. FIFY,

                  So, anyone who grows any plants in a garden… is affecting interstate commerce.

                  That’s pretty much the holding of Wickard, and confirmed in Raich. It’s no mystery to anyone in government that they can regulate your garden.

                  1. In the future, the time you get out of bed and the direction you hang your roll of Charmin will = interstate commerce, and be regulated accordingly.

            2. I see you quoted the same paragraph. All of those pronouns (it and its) refer distinctly to activity, RC. Not “inactivity”. The SCOTUS’s point was that even though Farmer Filburn may not be engaged in interstate commerce, he is engaged in an activity that affects interstate commerce.

              The “rhetorical trick” that certain conservative supporters of mandates have tried to say is that “self-insurance” is an “activity”, and that’s total equivocation.

              1. All of those pronouns (it and its) refer distinctly to activity, RC.

                I’ve given the reasons elsewhere why the activity/inactivity distinction has its own weaknesses.

            3. The “stimulate” commerce argument is silly, at best. Is ObamaCare about stimulating the health insurance market or helping people get access to health care?

              If the latter, then you are ignoring the fact that lacking health insurance does NOT mean a lack of access to health care. I can buy it with cash, I can self medicate, use alternative medcines, or use a Health Savings Account.

              I get the feeling you see no limits whatsoever to government power.

              1. I get the feeling you see no limits whatsoever to government power.

                I wish SCOTUS hadn’t gutted all limits on Commerce Clause power, and what I’m trying to show is that they pretty much have.

                1. I agree they have, and even still, your devil’s advocate position is still weak.

            4. As if we needed further proof that Wickard is the all-time worst decision by the Court.

    4. Regulars will recall that I think the statement that ObamaCare’s mandate that somebody buy a good or service they would not otherwise buy is hardly unprecedented; such mandates are, in fact, commonplace.

      We’ll also recall that your analogies are woefully off-point and unconvincing. Much like your argument that if the government can make people doing X also do Y, it can make you do Y even if you don’t do X.

      1. I’m just reading SCOTUS precedent here, which turns on whether they can regulate somebody because they have an affect on interstate commerce.

        ObamaCare pushes that precedent one step further, by imposing a mandate that is not explicitly conditional on engaging in an identified business.

        However, SCOTUS has never said that mandates are only allowed if they are conditional in this way. And much of what they have said implies that this is not the case.

        I hope they do construct a new limiting principle. But being willfully blind to the arguments on the other side is no way to win a lawsuit. That’s what tripped up the administration and its cronies at SCOTUS.

        And that’s why I took the assignment of arguing in favor of ObamaCare at a legal symposium. I wanted to know how good my opponent’s arguments are (or could be). They are better than I thought they would be.

        If anything, its a demonstration of just how bad the post-New Deal Commerce Clause jurisprudence is.

        1. If only they’d take this opportunity to restore the limits of the Commerce Clause. They won’t, but if this overreach actually generated a huge backlash by the Court. . .well, schadenfreude seems too tepid a word.

        2. I’m just reading SCOTUS precedent here, which turns on whether they can regulate somebody because they have an affect on interstate commerce.

          This is where you are falling down. The SCOTUS never said that you can regulate “somebody” (i.e. people) because people have an effect on interstate commerce. It said you can regulate activity because that activity, in the aggregate, affects interstate commerce.

          If Filburn had grown no wheat, the Ag Adjustment Act would not have applied to him.

          1. The SCOTUS never said that you can regulate “somebody” (i.e. people) because people have an effect on interstate commerce. It said you can regulate activity because that activity, in the aggregate, affects interstate commerce.

            Probably the best short statement of the case against ObamaCare that I have read.

            Of course, in the final analysis, activities aren’t regulated. People are. Your activities may lead to you being regulated, but the regulation applies to you, not your activity.

            The next step of the activity analysis poses its own set of questions:

            (1) Does any activity that affects interstate commerce (directly or indirectly, in the aggregate, blah blah) trigger the Commerce Clause? I think the answer is yes.

            (2) What counts as an activity?

            (3) Can Congress assume/conclude that everyone has this affect on interstate commerce? As a factual matter, under SCOTUS’s formulation, I think this is probably true, but what showing does Congress have to make?

            (4) Does the regulation at issue have to have any relationship to the activity that triggers the Commerce Clause?

        3. Does someone hitting the snooze button and deciding to stay home “substantially affect” interstate commerce?

          I’m not willfully blind to the arguments in favor of Obamacare, I just don’t think they are persuasive.

          However, the bottom line isn’t about arguments, or precedent, or the Constitution, it’s about what at least five people decide to write. And five people could very easily tell us that accessing medical care, which happens almost exclusively on an intrastate basis, is interstate commerce, just as easily as they could pretend that the Constitution says that Congress can regulate that which has a substantial effect on commerce among the several states even though it says no such thing.

    5. I think the current mandate is distinguishable from past mandates, but I agree that by removing the shackles of limited government from the analysis, the courts long ago opened the door to something like this being “legal.”

      Naturally, no number of court opinions changes the fact that these expansions of federal power were not and are not constitutional. The court can no more legally expand the power of government beyond its constitutional limits than any other part of government.

      In essence, much of the last century has been a gradual coup d’?tat.

  2. Semi-OT: Good news from wa state. Supreme Court, in 8-1 decision, limits the ability of police to search cars of arrested persons. Suck it, piglets!

  3. I am usually being sarcastic when I say this on Fridays, but:

    Needs more labels.

  4. These aren’t earth-shattering errors by the president, of course, but they are a little unfortunate coming from a former constitutional law lecturer.

    You’re being far more generous than I. I think these aren’t “errors” at all. I think he’s deliberately being misleading.

    1. I think he’s deliberately being misleading.

      He knows he’s wrong. He’s just banking on the fact that his constituents either won’t understand or won’t care.

      1. Running against the Supreme Court works in a campaign. FDR and the GOP 1970-2000 proved it. I grew up in the South where the Warren Court became a code term for Communism.

        1. FDR packed the Court in 1937. The Dems got killed in the 1938 mid terms. By 1940 the election was about the coming war. Court packing is considered to be what ended the New Deal. FDR never campaigned against the court. And t he GOP lost 12 seats in the House in 1970.

          Stop lying you ignorant little fucking retard sock puppet.

          1. FDR never packed the Court and 1937 was a severe economic downturn.

            You know damn well the GOP ran against the SCOTUS and their definition of due process, civil rights/liberties, and the First Amendment (Griswold and Engele) for years.

            I remember you Bircher types and the ‘Impeach Earl Warren’ bumperstickers very well.

            1. FDR was going to pack the court until the country turned against him. And probably would have had the Court not rolled.

              And the GOP never won a single election on the Supreme Court. No go back in your hole you little weirdo. You can’t come on here and lie and not have your nose rubbed in it.

              1. Wow, shrike… you’re in your eighties, at least. No wonder you’re so fucking cranky… you’re a nasty-tempered old fart.

                Go back to your claims of being able to add more socialism than we have now, and still be a free and prosperous country.

                1. BTW, did you ever get to meet FDR?

                  1. A decrepit despot and an asshole. Uber facepalming is now automatic for me whenever I hear some pinko retard lionize the guy.

                    1. A decrepit despot and an asshole. Uber facepalming is now automatic for me whenever I hear some pinko retard lionize the guy.

                      One of my favorite memories of high school is when my U.S. history teacher gave us an assignment to interview relatives who lived during the Depression and World War 2. It was easy for me because my parents grew up then (my Dad and his brothers were WW2 vets).

                      I’ll never forget the mocking laughter that greeted my questions about FDR and his programs. Needless to say, it was a bit of a surprise since we were taught in school that everybody loved FDR (except for those evil “economic royalists”).

                      I never looked at those history textbooks the same way again.

                2. I always envision Shrike as a Gollum like character. When he was a teenager back in the 20s, he found Woodrow Wilson’s wedding ring at the bottom of a stream. He stopped aging and has been getting progressively more grotesque every year since.

                  1. But shrike isn’t just your run-of-the-mill pinko retard, Res…

        2. I grew up in the South where the Warren Court became a code term for Communism.

          I grew up in California where we said we saved the state but sacrificed the nation [Warren going from governor to Chief Justice].

      2. He’s just banking on the fact that his constituents either won’t understand or won’t care.

        I hate to say it but those odds are in his favor.

    2. I honestly don’t know if he realizes the standard lefty-academic cant is factually and analytically wrong, and is just parroting it, or if he knows its wrong, and is spouting it anyway.

    3. I just had a revelation. Obama wasn’t an adjunct teaching Con. (short for Constitutional) law; he was an adjunct teaching Con Law. The law of conning.

  5. Great, supremes striking down PPACA’s individual mandate will not take us back before the New Deal. What do we have to do to go to there?

    1. Time machine, flame thrower.

      1. I do love a flame thrower, but I think this calls for something a bit more personal. Like tying the justices who were on the wrong side of Wickard to a rock and disemboweling them with bare hands.

    2. You’re going to need something that can produce 1.21 jigawatts and still fit in a Delorean.

  6. Wrong. Lochner v. New York concerned a state regulation, not a federal one; the law was struck down under the Due Process Clause of the 14th Amendment, not the Commerce Clause

    Hmm, I’m thinking maybe you might want to give 90s U of Chicago law grads a pass when you have a Constitutional matter to litigate and just find yourself a good Loyola guy.

  7. “We have not seen a court overturn a law that was passed by Congress on an economic issue, like healthcare, that I think most people would clearly consider commerce.”

    Does anybody else see the inherent contradiction in Obama criticizing the Supreme Court for overturning something like this as being unprecedented?

    The Supreme Court shouldn’t overrule something unprecedented–like the individual mandate–because overruling that would be unprecedented?

    1. The Supreme Court shouldn’t overrule something unprecedented–like the individual mandate–because overruling that would be unprecedented?

      You got it.

      The job of the Supreme Court is not to judge legislation against the Constitution, because it is assumed that if Congress passed it and the President signed it, then it is in accordance with the Constitution.

      It is the job of the Supreme Court to defend legislation from those with the temerity to squeak about it going beyond powers given to the federal government by the Constitution.

      1. I’d give him a pass on the Lochner reference – it means he too lazy/sloppy to read past the standard liberal references.

        But no President or “scholar” gets to flat out ignore Marbury v. Madison.

        1. it means he too lazy/sloppy

          And I too lazy/sloppy to proofread.

  8. I think RC is right. HE convinced me anyway. Yeah sure, take auto insurance for example. Yeah maybe it isn’t a de jure mandate because I can walk or, in the case of making widgets, choose not to make widgets. But they are sure as de facto mandates.

    This point is very well taken..

    …the point of Wickard is that the wheat farmer was trying to opt out of interstate commerce, was not engaged in any “activity” in interstate commerce, but because his inactivity in the interstate wheat market “affected” that market, he could be regulated.

    Look, SCOTUS is going to interpret you into interstate commerce whether you are, want to, or not.

    1. Don’t take the auto insurance analogy too far. That mandate is a state-level mandate, not a federal one. The states have much broader powers, technically, than the federal government, by and large.

      Incidentally, that’s been a flaw in our system all along. The states have no more business meddling in everything than the feds.

      1. I don’t want to rehash the argument we had last week, but, just for the record, I maintain that the government has no business requiring people to insure each other’s cars either.

        If you choose to drive around in an expensive car without insuring it against uninsured motorists, that’s your choice. I’m not saying people who hit your aren’t responsible in court; I’m saying that it’s not the government’s responsibility to make sure the damage to your car done by uninsured motorists is covered, that’s your responsibility alone. …and uninsured motorist coverage is cheap and widely available.

        So, anyway, why the government unjustly forcing poor people to insure your expensive car for you–for taking on a risk you willingly choose to do? Why that somehow justifies the government unjustly forcing everyone to buy health insurance? Is beyond me.

        1. CA law does not require the purchase of auto insurance. Doing so is one way of satisfying the legal requirement to show financial responsibility for a vehicle registered to be used on public roads.

          I expect Tony to be a douchebag that gets this wrong, please don’t join him.

          1. Calling Tony names won’t change the fact that the government coercing people who have never and will never hit your car–into insuring your car for you? Is fundamentally unfair and absolutely absurd.

            If I hit your car and don’t have insurance? Take me to court. If you don’t like that outcome, then buy yourself insurance against uninsured motorists. It’s cheap.

            I’ve never seen people defend rent seeking by the auto insurance companies with such fervor–you’re completely snowed. Choose the red pill.

            And my argument does nothing if not undermine people like Tony. People like Tony can’t try to use the auto insurance mandate to justify ObamaCare’s individual mandate with me; if the auto insurance mandate doesn’t fly, why would I buy it as support for ObamaCare’s individual mandate?

            Oh, and when I tell you to stop trying to make other people responsible for insuring the risks you take for you–as if I were somehow responsible for your welfare? Mine isn’t an argument Tony would make. You’re the one making Tony’s argument for him.

            Poor people who have never and will never hit your car are responsible for your car, why? Because the government says so? You should be ashamed.

    2. Congress forcing people to do things may not be unprecedented, but surely the scope of this is unprecedented.

      Furthermore, I’d argue that just because an injustice isn’t unprecedented doesn’t mean that injustice should continue to be perpetrated through later decisions.

      Interning American citizens during wartime because of their ancestry isn’t exactly unprecedented either.

      1. If I were a liberal griefer, I’d insist that people who don’t drive cars, should be forced to buy car insurance anyway. It is soooooo unfair that those costs aren’t shared by The Collective.

        But I’m not a liberal griefer. I’d rather pull out my own spleen and bash my skull with it.

        1. If you were a liberal griefer, I’d say you should be ashamed of yourself for insisting that the government should force poor people to insure rich people’s cars for them.

          And then what would you say?

          1. Well, it’s a good thing I’m not a liberal griefer, then.

            Nice catch, though.

      2. That’s true Ken, but that isn’t RC’s point. Remember, we are using logic. Court’s use legal reasoning and suck the holy cock of stari decisis. Using those two tools. RC is addressing the path, using those two tools, to get to the ….ahem…. legal conclusion that the mandate is constitutional.

        1. I’m not saying there isn’t a constitutional argument for the individual mandate. I used to confine my statements on this, mostly, to, “ObamaCare sucks even if it is constitutional”.

          That having been said, there are legitimate arguments against it, too. I maintain that there are holes in the argument showing precedent for mandates like this, and I’ve outlined some of those in this thread already.

          As far as stari decisis is concerned, when you have a relatively small case that sets a precedent, it may be incorrect to perpetuate that precedent through later decisions. If there is a wrong that’s being perpetuated, there has to be an inflection point, somewhere, when the Court says “Enough!”.

          These questions come before the Court periodically. The Dred Scott decision, for all I know, was perfectly consistent with precedent. But I’ve never heard anyone of consequence defend that decision as anything but a steaming pile.

          Would approving of the individual mandate be as bad as the Dred Scott decision? No! But it shows there’s an inflection point in there somewhere, where following precedent can lead to decisions almost everyone thinks are inconsistent with both the spirit and the letter of the Constitution.

          I suppose there are at least two kinds of decisions: decisions where the question is which general rule to follow and decisions where the question is what the general rule is.

          Maybe the insurance mandate is a question of what the general rule is.

          1. I suppose there are at least two kinds of decisions: decisions where the question is which general rule to follow and decisions where the question is what the general rule is.

            In other words, I can imagine that stare decisis would be more compelling in some kinds of cases but not as much in others.

        2. stare decisis is valuable because having consistent, knowable laws is almost as important to the Rule of Law as having just laws is.

          1. Still, having consistent knowable laws shouldn’t completely overwhelm the importance of the laws being just, and surely if the individual mandate is struck down, the laws will still be consistent and knowable.

            If a law is unjust, I don’t see why it should be perpetuated only because it’s more convenient if everyone already knows the unjust law.

            Oh, and the individual mandate and the dropping of the preexisting condition exclusion, everyone thinks depends on the mandate, don’t take effect until January 1, 2014.

            If it gets struck down this June, surely that’s plenty of time for the insurance companies to adjust their plans.

          2. However, you can also get consistent, knowable laws by starting from first principles before each decision.

            Stare decisis is just a short cut. Like mathematicians dont need to first prove 1+1=2 at the beginning of each paper.

            But if there are doubts…they should.

    3. Of course, those conditional mandates John and RC were arguing about are shitty and should be dropped as well. They’re arbitrary mandates/punishments given and effective as soon as you do certain things, like open a car plant, or sell vibrators to people in neighboring states.

  9. The New Deal may not be in legal trouble but it sure as hell should be.

    Since none of actaully was legal to begin with.

  10. How can we get the court to revisit the Wickard and Raich decisions? They are nonsensical, and the fact that they remain on the books at all reflects poorly on judicial reasoning in this country.

  11. How can we get the court to revisit the Wickard and Raich decisions?

    Elect serious limited government Constitutionalists to the Presidency and Senate for a generation.

    1. Oh, and would like a unicorn pony with that? I was asking for a SERIOUS suggestion! 😉

  12. I hear Obama is a serious Constitutional Scholar.

    Of which municipality’s constitution, may I ask?

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