Antonin Scalia

ObamaCare on Trial

The libertarian legal movement threatens Barack Obama's signature law.

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President Barack Obama was all smiles when he signed the Patient Protection and Affordable Care Act (PPACA) into law at a special ceremony in the East Room of the White House on March 23, 2010. "With all the punditry, all of the lobbying, all of the game playing that passes for governing in Washington," Obama declared, "it's been easy at times to doubt our ability to do such a big thing, such a complicated thing." 

It turns out there was a much better reason to doubt the federal government's ability to do such a big, complicated thing: the Constitution of the United States of America. Barely two years after the president's health care overhaul was enacted, his solicitor general, Donald Verrilli, stood before the nine justices of the U.S. Supreme Court and tried desperately to salvage the law. When the clock ran out on Verrilli's time, Obama and his supporters faced a challenge they hadn't expected: Their sweeping conception of federal authority had to contend with a robust libertarian legal movement that insisted Congress may not exercise powers the Constitution does not grant.

At issue was a lawsuit originally filed by Florida and 12 other states on the very day Obama signed the PPACA. Although the suit challenged several components of the legislation, its main target was the controversial "requirement to maintain minimum essential coverage." Also known as the "individual mandate," this provision would force all Americans to obtain medical coverage meeting minimum standards set by the government. To justify the health insurance mandate, the PPACA cited the Constitution's Commerce Clause, which authorizes Congress "to regulate commerce…among the several states." By the time the legal challenge reached the Supreme Court, a total of 26 states had joined it, along with the National Federation of Independent Business and several individuals.

While it might seem inevitable in hindsight that the Supreme Court would weigh in on the constitutional merits of the individual mandate, that outcome was far from preordained. "When the idea for the challenge was created," says Orin Kerr, a conservative George Washington University law professor and former clerk to Supreme Court Justice Anthony Kennedy, "it was understood to be a long shot." The legal challengers faced all sorts of obstacles along the way, including the daunting task of persuading federal courts to plunge into the highly political thicket of health care reform. "We were confident that if we got one ruling against [the law], it would go to the Supreme Court," says Ilya Shapiro, a lawyer and senior fellow at the libertarian Cato Institute, who wrote multiple amicus briefs supporting the challenge and provided early legal advice to Florida and the other state challengers.

Some PPACA supporters didn't think Shapiro and his allies would score even that one victory. Back in October 2009, a reporter asked Rep. Nancy Pelosi (D-Calif.), then the speaker of the House, "Where specifically does the Constitution grant Congress the authority to enact an individual health insurance mandate?" Her reply: "Are you serious?" Nadeam Elshami, Pelosi's communications director, later amplified the response, telling CNS News, "You can put this on the record: That is not a serious question."

It seemed serious enough to me as I sat in the Supreme Court on March 27, 2012, watching one justice after another grill the solicitor general about the individual mandate's constitutional defects. Verrilli was not taking heat only from the Court's most conservative members; he also faced extremely tough questioning from Justice Kennedy, the right-leaning moderate who often casts the crucial fifth vote in tight cases. "When you are changing the relation of the individual to the government in this, what we can stipulate is, I think, a unique way," Kennedy asked Verrilli as a hushed courtroom looked on, "do you not have a heavy burden of justification to show authorization under the Constitution?"

Suddenly, the legal challenge didn't seem like such a long shot anymore. How did the challengers beat the odds? By constructing a potent, case-specific legal strategy on a foundation of painstaking libertarian legal scholarship built over the course of three decades.

'Commerce Among the Several States'

On its face, the Commerce Clause seems like a straightforward proposition. Article 1, Section 8 of the U.S. Constitution grants Congress the power "to regulate commerce with foreign nations, and among the several states, and with the Indian tribes." The Framers and ratifiers of the Constitution understood that middle part, "among the several states," to mean that Congress may regulate commerce that crosses state lines but not the economic activity that occurs within each state.

In Federalist 42, James Madison explained that without the Commerce Clause, Congress would be powerless to clear away the tariffs, monopolies, and other interstate trade barriers erected by various state governments under the Articles of Confederation. "A very material object of this power," he wrote, "was the relief of the States which import and export through other states from the improper contributions levied on them." Madison and the other Framers believed that if the new United States was going to make it, the federal government needed to secure what today we might call a domestic free trade zone.

Compared to the decentralized Articles of Confederation, the Commerce Clause was a very significant grant of power to the new federal government, but it was not a blank check. As Alexander Hamilton, normally a champion of broad federal authority, explained in Federalist 17, the Commerce Clause did not extend congressional power to "the supervision of agriculture and of other concerns of a similar nature, all those things, in short, which are proper to be provided for by local legislation." The Commerce Clause gave Congress no power to touch intrastate economic activity. Indeed, the Framers understood "commerce" to refer to the trade or exchange of goods, including transportation, not to commercial endeavors such as farming or manufacturing.

That original understanding held sway for a century and a half, until the Supreme Court dramatically expanded the federal government's powers under the Commerce Clause in the 1942 case Wickard v. Filburn. At issue in Wickard was Congress' attempt, via the Agricultural Adjustment Act of 1938, to inflate crop prices by limiting the amount farmers were permitted to grow. Among those farmers was Roscoe Filburn of Montgomery County, Ohio, who violated the law by planting twice the amount of wheat allowed by his quota. In his defense, Filburn noted that he did not send that extra wheat off to the market. Instead he consumed it entirely on his own farm, either by feeding it to his animals or turning it into flour for use in his kitchen. Yet according to the Supreme Court, those actions still counted as "commerce…among the several states." Filburn's extra wheat may not have crossed any state lines, Justice Robert Jackson wrote for the majority, but he and other similarly disobedient farmers nevertheless exerted a "substantial economic effect" on the interstate wheat market by growing what they otherwise might have bought.

Wickard opened the door to a wide variety of government actions that would have previously been seen as unconstitutional under the Commerce Clause, including federal penalties for local crimes like loan sharking and federal wage controls for state and municipal employees. In the 2005 case Gonzales v. Raich, the Supreme Court arguably went further than Wickard did by upholding the federal ban on marijuana, even as applied to plants grown by patients for their own medical use in states that allow such cultivation. Taken together, Wickard and Raich mean that Congress possesses vast powers to regulate the American economy, including purely local activities that in the aggregate can be said to affect interstate commerce. Congress relied on the language of these rulings in drafting the PPACA. As Section 1501 of the law puts it, the individual mandate "is commercial and economic in nature, and substantially affects interstate commerce."

But there's a catch. As the libertarian and conservative lawyers who crafted the legal challenge to the PPACA emphasized, Wickard and Raich are not the only Commerce Clause precedents that matter.

'We Start With First Principles'

On November 8, 1994, the Supreme Court heard oral arguments in United States v. Lopez. At issue was whether the Commerce Clause allowed Congress to forbid the possession of a gun within 1,000 feet of a school. Unlike the federal price-rigging scheme upheld in Wickard, the Gun Free School Zones Act challenged in Lopez had no direct connection to economic activity, whether local or national. Instead the government claimed that gun violence, taken in the aggregate, undermined the nation's educational system, which in turn substantially affected the U.S. economy.

"When we saw that case coming up from the 5th Circuit, you can imagine how excited we were," says Roger Pilon, an influential legal thinker who directs the Cato Institute's Center for Constitutional Studies. Cato commissioned a paper by University of Tennessee law professor Glenn Harlan Reynolds (better known today as the proprietor of the popular political blog Instapundit.com), who marshaled impressive legal and historical evidence to explain why "Lopez is not about gun control or even about federal-state relations but about whether the Court is ready to hold Congress to its constitutional limits." 

The evidence cited by Reynolds included a groundbreaking 1987 Virginia Law Review article by the libertarian legal scholar Richard Epstein, a law professor at the University of Chicago. "The expansive construction of the clause by the New Deal Supreme Court is wrong," Epstein concluded in "The Proper Scope of the Commerce Clause." Based on a careful analysis of numerous founding-era sources, including the text and structure of the Constitution itself, Epstein's argument rang out like a constitutional call to arms. When Lopez hit the Supreme Court in 1994, Pilon and his colleagues at Cato were ready to heed that call.

"Six weeks before oral argument in the case," Pilon told me, "we sent copies [of Reynolds' study] to each justice and to each of their clerks." It did the trick. Not only did many of the justices voice skepticism about the government's claims during oral arguments, but several justices adopted the Cato study's main points as their own. "Is the simple possession of something at or near a school 'commerce' at all?" Justice Sandra Day O'Connor asked Solicitor General Drew Days. "Is it?" When Days responded that he thought it was, O'Connor shot back, "I would have thought that it wasn't, and I would have thought that it, moreover, is not interstate."

Five months later, the Court nullified the law. It was the first time since the New Deal that a federal regulation had been struck down for exceeding the scope of the Commerce Clause. "We start with first principles," Chief Justice William Rehnquist wrote for the majority. "To uphold the Government's contentions here, we would have to pile inference upon inference in a manner that would bid fair to convert congressional authority under the Commerce Clause to a general police power of the sort retained by the States.…This we are unwilling to do."

Five years later, in United States v. Morrison, the Court extended this line of reasoning to void a provision of the Violence Against Women Act that created a federal cause of action for victims of gender-motivated crimes. The government's argument in that case was essentially the same as its argument in Lopez: that violence against women ultimately has an adverse effect on the national economy. In both cases, the Court ruled that the Commerce Clause is not broad enough to reach noneconomic local activity. Despite the Court's 2005 ruling in Raich—which took Wickard's "substantial effects" logic a step further, applying it to someone who was not even a farmer—the limits on congressional power articulated in Lopez and Morrison remained in force.

'Unprecedented and Unconstitutional'

The relationship between Lopez, Morrison, and Raich is tricky, and perhaps no lawyer in America understands it better than Georgetown University law professor Randy Barnett, author of the influential libertarian legal treatise Restoring the Lost Constitution. Barnett was the losing lead attorney in Raich, and he has been pondering its implications ever since.

When Raich was decided, Barnett says, "it was my belief that there would never be another Commerce Clause case," because the Court's interpretation seemed as expansive as it could possibly get. But Congress and the White House surprised him in 2009 when they settled on the idea of forcing every American to buy health insurance from a private company. "It turns out they found something new that they hadn't ever done before," he says. "And the very fact that it's new means it's subject to question. If they were just sticking with it, just trying to regulate interstate activity the way they were before, we wouldn't be able to stop them."

In both Lopez and Morrison, Congress sought to regulate noneconomic activities by citing their aggregate impact on interstate commerce. But the Supreme Court refused to "pile inference upon inference," following the hypothesized chain of effects from gun possession or rape to "commerce…among the several states." As the Court held in Morrison, "thus far in our Nation's history our cases have upheld Commerce Clause regulation of intrastate activity only where that activity is economic in nature." Raich continued this trend, with the Court deeming the act of growing your own marijuana to be economic.

Now consider the individual mandate. The failure to buy health insurance is not even an activity, let alone an economic one. Because the Supreme Court has never said Congress may regulate inactivity, Barnett and his allies argued, the individual mandate violates the Court's precedents as well as the long-lost original meaning of the Commerce Clause. For federal judges who are interested in placing some limits on congressional power but who are nevertheless bound by the Supreme Court's expansive reading of the Commerce Clause, the distinction between activity and inactivity promised to be an attractive legal argument.

Barnett, along with two co-authors, spelled out this argument in a 2009 Heritage Foundation paper titled "Why the Personal Mandate to Buy Health Insurance Is Unprecedented and Unconstitutional." Heritage unveiled the paper at a December 9, 2009, event featuring a debate between Barnett and other legal experts on the mandate's constitutionality. Also present was Sen. Orrin Hatch (R-Utah), who delivered a well-received keynote speech. Later that month, Hatch and other Senate Republicans raised a point of constitutional order against the PPACA, which was still being debated in Congress.

Barnett did not formally join the legal challenge until roughly a year later, when he was retained as counsel by the National Federation of Independent Business (which had joined Florida's suit). Until that point, he says, "I was attempting to influence the discourse solely from the outside of the case, through blogging and writing." It worked. If you read Barnett's 2009 Heritage paper today, you will find virtually every major argument that has been deployed against the individual mandate through every stage of litigation, from Florida's original March 2010 lawsuit to the March 2012 oral arguments at the Supreme Court. 

Setting the Stage

The challenge kicked off officially on March 23, 2010, when Florida, joined by 12 other states, and Virginia, acting alone, filed separate federal lawsuits charging the PPACA with exceeding congressional authority and undermining the principles of federalism. As the Florida complaint put it, "The Constitution nowhere authorizes the United States to mandate, either directly or under threat of penalty, that all citizens and legal residents have qualifying healthcare coverage." Several other challenges soon followed, including suits by the Thomas More Law Center, a public interest law firm focusing on religious freedom, and Liberty University, the conservative Christian college founded by the late Jerry Falwell.

But it was the Florida-led challenge that won big enough to reach the Supreme Court. Its first victory came on January 31, 2011, in a ruling by U.S. District Judge Roger Vinson. "Congress must operate within the bounds established by the Constitution," Vinson declared, striking down the individual mandate for exceeding those bounds. Furthermore, Vinson ruled, because the PPACA did not include a so-called severability clause, which would have specified what happens to the rest of the law when a single provision is struck down, "the entire Act must be declared void."

A little over six months later, on August 11, the U.S. Court of Appeals for the 11th Circuit partially affirmed Vinson's ruling, voting to strike down the individual mandate but allowing the rest of the PPACA to stand. "We have not found any generally applicable, judicially enforceable limiting principle that would permit us to uphold the mandate without obliterating the boundaries inherent in the system of enumerated congressional powers," the 11th Circuit declared.

Because a different federal appeals court, the 6th Circuit, had voted two months earlier to uphold the health care law, the Supreme Court was now virtually guaranteed to step in and resolve the split. In the meantime, the 4th Circuit voted to uphold the law on September 8 and the D.C. Circuit did likewise on November 8. Six days after the D.C. Circuit's ruling, the Supreme Court announced that it would hear oral arguments in Department of Health and Human Services v. Florida the following year.

Oral arguments were scheduled to run for a modern record of five and a half hours (later expanded to six hours) spread out over three days: March 26, 27, and 28, 2012. In addition to the constitutionality of the individual mandate, the Court would consider three other issues. 

The first was whether the legal challenge to the PPACA must be dismissed under the terms of the Anti-Injunction Act, an 1867 statute that says "no suit for the purpose of restraining the assessment or collection of any tax shall be maintained in any court." In other words, a tax cannot be challenged in court until it has been assessed and paid. Did the "shared responsibility payment" imposed on people who disobey the individual mandate count as a tax, even though Congress specifically called it a penalty? If so, the legal challenge to the PPACA would have to wait until 2015, when the mandate was scheduled to take effect. The Court set aside 90 minutes for this question on March 26.

The second additional question concerned the issue of severability. In his January 2011 ruling, Judge Vinson held that because the PPACA lacked a severability clause, the whole law must fall if the mandate is ruled unconstitutional. The Supreme Court reserved 90 minutes on March 28 to hear arguments for and against that proposition. Later that same day, the Court would hear one final question: Does the PPACA's expansion of Medicaid, the joint federal-state health care program for the poor, represent an unconstitutionally coercive use of Congress' spending power? One hour was set aside for that. 

But the main event was scheduled for the morning of March 27, when the Supreme Court would devote two full hours to the constitutionality of the PPACA's controversial centerpiece: the individual mandate.

In Search of a Limiting Principle

A few days before this legal marathon began, I sought some Court-watching advice from a Washington lawyer who knows a thing or two about high-profile cases. Clark Neily is a senior attorney at the Institute for Justice, a libertarian public interest law firm. In his private capacity, he was one of the victorious lead attorneys in District of Columbia v. Heller, the landmark 2008 case in which the Supreme Court ruled definitively that the Second Amendment secures an individual right to keep and bear arms.

"If you're looking for hand tipping during the arguments," Neily told me, pay attention to how often "the justices keep going back to a question for the government: Namely, what is the limiting principle here? If Congress can do this, what are the things that Congress cannot do? That's the thing I will be looking for." 

When the 11th Circuit had voted to strike down the individual mandate, it did so largely because the Obama administration failed to articulate a limiting principle for the federal government's Commerce Clause powers. Even the D.C. Circuit, which upheld the PPACA, admitted that the government was asserting an essentially unlimited regulatory power. "The Government concedes the novelty of the mandate and the lack of any doctrinal limiting principles," the D.C. Circuit said. "Indeed, at oral argument, the Government could not identify any mandate to purchase a product or service in interstate commerce that would be unconstitutional, at least under the Commerce Clause."

Solicitor General Donald Verrilli would have to come up with a better answer when he argued the case before the Supreme Court. According to the brief filed by the multistate challengers, "there is no way to uphold the individual mandate without doing irreparable damage to our basic constitutional system of governance." At a minimum, the Court's conservatives would expect the solicitor general to counter that claim by laying out a plausible limiting principle for congressional power under the Commerce Clause. If Verrilli did not, the individual mandate would be in jeopardy.

'All Bets Are Off'

Verrilli ran into trouble right away. To prevail, he needed to win over at least one of the Supreme Court's five right-leaning justices. The two most obvious candidates were Kennedy, who regularly sides with the Court's liberal bloc, and Chief Justice John Roberts. The conservative Roberts may seem like an unlikely ally of the federal government, but consider his record: In the 2010 case United States v. Comstock, which posed the question of whether the Necessary and Proper Clause allowed federal officials to order the indefinite civil commitment of "sexually dangerous" persons who had already finished serving their prison sentences, Roberts sided with the Court's liberals, endorsing a sweepingly broad understanding of congressional power.

Then there's the issue of judicial restraint. During his 2005 Senate confirmation hearings, Roberts stressed his belief that the Supreme Court should practice "judicial modesty," a respect for precedent and consensus that he extended even to Roe v. Wade, the 1973 decision that declared a constitutional right to abortion. He called Roe, a bête noire of conservatives, "the settled law of the Land." Given the Court's extremely broad Commerce Clause precedents in Wickard and Raich, the government had reason to believe Roberts would vote to uphold the individual mandate as an application of "settled law."

But when oral arguments began, Roberts wasted no time tearing apart Verrilli's case, which rested on the idea that because we all will require health care at some point, the government may stipulate how we pay for it in order to prevent the uninsured from imposing a burden on others. "Once we say that there is a market and Congress can require people to participate in it, as some would say, or as you would say," Roberts told the solicitor general, "it seems to me that we can't say there are limitations on what Congress can do under its commerce power." In fact, Roberts continued, "given the significant deference that we accord to Congress in this area, all bets are off."

Justice Antonin Scalia soon amplified Roberts' misgivings. "Why do you define the market that broadly?" he asked the solicitor general. "Everybody has to buy food sooner or later," Scalia continued, "so you define the market as food. Therefore everybody is in the market; therefore you can make people buy broccoli."

So much for a limiting principle. Nor did liberal Justice Stephen Breyer do the government's case any favors when he chimed in to say that "yes, of course" Congress can "create commerce where previously none existed," which could include forcing all Americans "to buy cellphones" to facilitate the provision of emergency services (a hypothetical posed by Roberts). Verrilli hastened to clarify that the government was not in fact endorsing a cellphone mandate, but the damage had been done.

To make matters worse, after Verrilli suggested that a ruling against the individual mandate would be tantamount to judicial activism, Roberts shot forward in his chair to accuse the government of demanding that the Court engage in activism by deciding that a health insurance mandate is acceptable but that a broccoli or cellphone mandate is not. "It would be going back to Lochner if we were put in the position of saying, no, you can use your commerce power to regulate insurance, but you can't use your commerce power to regulate this market in other ways," Roberts declared. "I think that would be a very significant intrusion by the Court into Congress' power."

Lochner v. New York was a 1905 case in which the Supreme Court struck down a state limit on bakers' hours, saying it violated the liberty of contract protected by the 14th Amendment. Today Lochner serves as a sort of bogeyman to most liberal legal thinkers, who see it as a notorious example of conservative judicial activism. But many conservative legal thinkers also dislike Lochner, including Roberts. During his Senate confirmation hearings, the future chief justice said, "You go to a case like the Lochner case, you can read that opinion today, and it's quite clear that they're not interpreting the law; they're making the law." So when Roberts told Verrilli that the government's theory of the Commerce Clause risks unleashing Lochner-style activism, he was raising a powerful conservative objection, one that would allow him to strike down the individual mandate while wearing the mantle of judicial restraint.

'A Heavy Burden of Justification'

"People say I'm a libertarian," Justice Anthony Kennedy told The New York Times in 2005. "I don't really know what that means." Most libertarians would tend to agree with him. In 2004, when the libertarian lawyer Randy Barnett stood before the Supreme Court to explain why his client, a cancer patient named Angel Raich, was not engaged in interstate commerce because her medical marijuana had been cultivated and consumed entirely within California, Kennedy did not buy it. Several months later, he joined Justice John Paul Stevens' majority opinion upholding the federal ban on marijuana as a valid exercise of congressional power under the Commerce Clause.

But Kennedy seemed to have a different take on the reach of federal power when Solicitor General Verrilli made his case for the individual mandate. He not only suggested that Verrilli had "a heavy burden of justification" but also described a mandated purchase as so "different from what we have in previous cases" that it "changes the relationship of the federal government to the individual in a very fundamental way."

At another point, however, Kennedy seemed inclined to accept the government's argument that all of us will at some point receive health care, so it is reasonable to regulate the manner in which we pay for it. In an exchange that occurred toward the end of the day's oral arguments, he referred to an uninsured young person as "uniquely proximately very close to affecting the rates of insurance and the costs of providing medical care in a way that is not true in other industries." Then again, Kennedy prefaced that statement with yet another reference to the government's failure to articulate a limiting principle. "The government tells us that's because the insurance market is unique," he said. "And in the next case, it'll say the next market is unique." 

Will Kennedy's willingness to accept the government's description of the health care market outweigh his discomfort with the government's potentially unlimited assertion of congressional power? The future of ObamaCare may depend on the answer to that question. We won't know for sure until the decision comes out (likely in late June, at the end of the Court's current term), but it may be significant that Kennedy interrogated Verrilli far more aggressively than he did the law's challengers.

'A No-Brainer'

When this article went to press, the Supreme Court had not yet issued its health care ruling, but the oral arguments suggested the decision, whichever way it goes, will be close. Which is a far cry from the cocksure predictions of victory made by the PPACA's defenders during the last two years. "I am quite sure that the health care mandate is constitutional," Harvard University law professor Charles Fried, a solicitor general in the Reagan administration, testified before the Senate Judiciary Committee in February 2011. "I would have said [it's] a no-brainer," he added with a condescending smirk, "but I mustn't, with such intelligent brains going the other way." 

Other PPACA supporters did not bother to mask their contempt for the legal challenge. "Under existing case law this is a very easy case; this is obviously constitutional," University of Virginia law professor Douglas Laycock told The New York Times in a front-page story that ran the very day the Supreme Court wrestled with the constitutional questions raised by the individual mandate. The law's challengers, Laycock breezily asserted, were "going to lose 8 to 1."

I caught up with Randy Barnett, an architect of the legal challenge that Laycock so casually dismissed, on the front steps outside the Supreme Court a few minutes after oral arguments on the mandate had concluded. He did not look like someone who had just suffered a defeat. "The people who confidently predicted this was an 8-1 or 7-2 case are wrong," he declared. Although Barnett declined to offer any further predictions, he could not hide the satisfaction in his voice. "It's a very closely divided Court," he said with a smile, "and we're going to have to wait and see how it goes." 

Damon W. Root is a senior editor at reason.

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  1. I hope Obamacare goes down in flames before I off myself.

  2. “Because fuck you, that’s why.”

    How hard is this? It’s not.

  3. So, we’re expecting the Supreme Court to release its decision on Obamacare any day now, right? The anticipation is killing me.

    1. I’m not optimistic. For all his pontification, Scalia’s still the dumbass who shat out Raich. It’s in Kennedy’s hands, and I think he’ll be more sensitive to progressive desires for judicial activism than he was in CU.

      1. Raich had a KULTUR WAR element that this one doesn’t (or at least he’s on the other side of ).

      2. Raich is different because marijuana is bad. M’kay?
        It’s bad because it’s bad. M’kay?
        It’s OK to ban it because it’s bad. M’kay?

        1. A cogent summary of Scalia’s rationale in that case, actually.

  4. I wish I could find the story on CNN, but I’ll never forget reading this one sentence in a story that described libertarianism as a “belief” that “government is limited in the kinds of laws it can write”.

    A fucking “belief”? No wonder people are acting surprised at issues like the seeming failure of PPACA when they can’t view the judiciary as any more than a legislature of last resort for progressive ambitions.

    1. Are you serious? Are you serious?

      1. Yes. It was around the same time the media was experimenting with the term “cyberterrorist”. I searched CNN to no avail, I’ve probably not got the quote exactly right, but I do recall accurately the notion that it was a “belief”, and not self-evident by the plain text of, say, the first amendment.

      2. Ha!

        Speaker of the United States House of Representativies, Laides and Gentlemen.

        She can not be expected to have familiarity with the allocation of power our founding document describes.

    2. That’s not just libertarianism, either. There are many political philosophies that would limit the kinds of laws govt can enforce, with the limits being different.

    3. It’s a totally obscure fringe belief that somehow got sneaked into almost every sentence of the Constitution. Clearly the work of time-traveling libertarians with absurdly good handwriting.

  5. Nor did liberal Justice Stephen Breyer do the government’s case any favors when he chimed in to say that “yes, of course” Congress can “create commerce where previously none existed,” which could include forcing all Americans “to buy cellphones” to facilitate the provision of emergency services (a hypothetical posed by Roberts).

    FUCK OFF SLAVER.

  6. So, in Lopez, the government argued that school gun violence, taken in the aggregate, undermined the nation’s educational system, which in turn substantially affected the U.S. economy.

    I never looked that closely at that case but it really appears that the US Solicitor General, used “Fuck you, that’s why.” as an argument.

    Staggering

    1. And the Court’s answer to that absurdity was ‘as long as you make the proper incantation, you may employ the power to regulate commerce’ (i.e. a “finding” that links the legislation to the enabling Constitutional power). Which Congress happily has done ever since – dutifully declaring the impact on commerce of whatever dumbshit scheme is on their minds.

      1. Given how fast and loose various courts have been with the ‘plain text’ never mind original intent – I’m not sure why states couldn’t [again, n/w the Constitution] simply print their own currencies for purely in-state transactions]. You could buy pot, but only with the state’s currency… as to challenges to issuing coin… for goodness’ sake that didn’t stop Congress from giving it to private banks in 1913, so, as a matter of democratic principles, all bets should be off.

        Competing currencies might lessen the deleterious impact that the zombie apocalypse will have on the national economy… which is roughly the net transactions in goods and services remaining after government in all its layers takes its jack…

  7. Sad thing about Lopez is that Congress passed an essentially equivalent law a year later, just with the wording changed to say that the gun involved must have “traveled in interstate commerce”.

    1. ‘Progressives’ are hoping the court goes 5-4 for the mandate – then it’s a hop and skip to implanting you with a chip to report your second big mac.

      The real problem is things that might be satire are no longer necessarily.

      If you see a brighter and better world, and see the Constitution as a mere ‘guideline’ and the Will and Concent of the governed as an antiquated and quaint notion… then you’ll give government unlimited power to do things you like policy wise…

      as well as things you don’t like.

      A point left-liberals are simply too obtuse and self-righteous to understand.

      Dum dee dum.

      Meanwhile, time to go long ink toner and Au, and short common sense.

      1. “then it’s a hop and skip to implanting you with a chip to report your second big mac.”

        Lolbertarianism.

  8. The decision will be released June 25

    Its a tossup, folks. I have noticed that nearly everyone seems to have slipped into the assumption that the forces of good will triumph. Don’t. There’s a 50/50 chance the whole law will be upheld. If the mandate gets struck down, I believe there is relatively little chance they will strike the entire statute. Why expose themselves to lefty backlash, when that can is just begging to be kicked back to Congress?

    1. Agree – this is no slam dunk for the Good Guys?.

    2. Please, please, please let this be a big win for limited government, despite there being almost no chance of that. Rogue clerks, serve us now.

    3. If they strike down only the mandate, that’s the death knell of private health insurance in this country.

      We’d be better off if they uphold the whole thing.

      1. We’d be better off if they uphold strike down the whole thing.

        This is what you really meant, right?

        1. If it’s struck down entirely, they’ll go for single payer — probably under the “Medicare-for-all”

          1. If it’s struck down entirely, they’ll go for single payer — probably under the “Medicare-for-all”

            I would rather them try that as I don’t think they can get the votes for it. It would also have a bit easier time passing constitutional muster (similar to SS). It would be the government providing the “product” rather than forcing individuals to buy a private product.

            1. If only the mandate is struck down, we still end up with Single Payer. Insurance will be unavailable in any State that refuses to impose the mandate on its own after a couple of years. That is why Pelosi did not need to read the bill. It was intended to be a forcing mechanism to her desired end state – complete socialization of medicine.

      2. The progressives could easily sabotage the industry by leaving in the coverage requirements, then blame private industry as a means to increase public support for single payer.

        That would suck big balls.

      3. We’d be better off if they uphold the whole thing.

        The final death of enumerated powers is far worse than the death of private health insurance. It’ll be easier to unwind PPACA than to resurrect enumerated powers.

      4. Let the market decide whether the death of private health insurance is a good or bad thing.

    4. Why expose themselves to lefty backlash, when that can is just begging to be kicked back to Congress?

      The Dems will filibuster (assuming they even lose the Senate which is looking more and more dubious) any attempt to repeal the ban on denying coverage for preexisting conditions.

      And don’t forget that voters LIKE that provision. So it’s the GOP that would be taking an electoral risk trying to repeal it.

      1. Oh, good. Much as I am in favor of a do-nothing Congress, and much as I am in favor of divided houses in favor of achieving this, allowing Harry Reid to continue to pass only shitty laws and CBRs just pisses me off. In a just world, he would have been tarred, feathered, and ridden to Union Station (or Reagan Inatl) on a rail to be sent back to Nevada where the citizenry spat on his shoes every time they encountered him.

    5. My fear is that they uphold it just out of laziness. Too much work has been done to implement it and it would be too disruptive to stop now.

    6. Because they would have to kill the doctrine of severability. You can’t even lie your way out of that one and limit it to its facts. The Congress specifically did not include a severability clause as a political compromise. The only way to strike down the mandate but uphold the law is to say that severability is no longer a valid judicial doctrine. They are not going to do that.

      They have life appointments RC. And if they kill the mandate they will get lefty backlash to 11 anyway. Either the whole law goes down or it all stays.

      1. SCOTUS already has given itself the discretion to sever a law regardless of whether there is a severability clause.

        Here’s what I think will happen: if there is a fifth vote to strike down the mandate, it will be purchased as part of a deal that allows severability, and the five judges writing that opinion will be the four who voted for the law, plus Kennedy. Separate opinions on the holding and the remedy are hardly unknown.

        1. Where did SCOTUS give itself the discretion to do that? Sure they have read it in places where the legislative history is unclear. But those cases are different than this case. In this case the legislative history is crystal clear. If you create a severability clause here, you are saying courts can create one any time they wish regardless of the legislative history. And even Kennedy is not going for that.

          You assume that they are just totally craven and political with no regard for law or the future precedent a case sets. And I don’t beleive that. I don’t always agree with them, but with the exception of Kagan who seems to be a legitimate political hack, I think all of them liberal and conservative at least try to uphold the law and think about the future consequences of the decision. They are not going to horse trade this decision based on not offending the New York Times too much.

          They are either going to let the whole thing stand or strike it all down. You watch.

          1. Where did SCOTUS give itself the discretion to do that?

            Sarbox, apparently, lacked a severability clause as well. Yet SCOTUS struck one part of it in the Free Enterprise Fund case (see pages 27 – 28):

            http://www.supremecourt.gov/op…..08-861.pdf

            “Generally speaking, when confronting a constitutionalflaw in a statute, we try to limit the solution to the problem,” severing any “problematic portions while leaving theremainder intact.” Ayotte v. Planned Parenthood of Northern New Eng., 546 U. S. 320, 328?329 (2006). Because “[t]he unconstitutionality of a part of an Act does not necessarily defeat or affect the validity of its remaining provisions,” Champlin Refining Co. v. Corporation Comm’n of Okla., 286 U. S. 210, 234 (1932), the “normalrule” is “that partial, rather than facial, invalidation is the required course,” Brockett v. Spokane Arcades, Inc., 472
            U. S. 491, 504 (1985).

            1. But read the guts of the case not just the summary.

              The Sarbanes-Oxley Act remains “‘fully operative as a law'” with these tenure restrictions excised. New York, 505 U. S., at 186 (quoting Alaska Airlines, Inc. v. Brock, 480 U. S. 678, 684 (1987)). We therefore must sustain its remaining provisions “[u]nless it is evident that the Legislature would not have enacted those provisions . . . independently of that which is [invalid].” Ibid. (internal quotation marks omitted). Though this inquiry can sometimes be “elusive,” Chadha, 462 U. S., at 932, the answer here seems clear: The remaining provisions are not “incapable of functioning independently,” Alaska Airlines, 480
              U. S., at 684, and nothing in the statute’s text or historical context makes it “evident” that Congress, faced with the limitations imposed by the Constitution, would have preferred no Board at all to a Board whose members are removable at will. Ibid.; see also Ayotte, supra, at 330.

              In the case you site, the act could still function. Obamacare cannot function without the mandate. And moreover, the Congress knew that and thus specifically did not include the severability clause. There is just no way around it.

              1. The point, John, is that the Court has the discretion to sever or not, regardless of whether there is a severability clause.

                Sure, under the current doctrine, they could exercise their discretion to strike the whole law.

                Or, they could exercise it to not strike the whole law. ObamaCare can still function without the mandate – it will run up a hell of a deficit, since that mandate is really its primary funding mechanism, and it would destroy the insurance industry in short order, sure. Those aren’t Constitutional flaws, though, just offenses against decency and common sense.

                But if Congress had passed it as is without the individual mandate, it would be Constitutional (under current Commerce Clause doctrine), yes? And that means that the Court can sever the mandate and leave the rest intact.

                1. But if Congress had passed it as is without the individual mandate, it would be Constitutional (under current Commerce Clause doctrine), yes?

                  That is not the proper question. Read the case. The proper question is can the law still function as intended without the unconstitutional provision. And clearly Obamacare, for the reason you mentioned, cannot. It is all or nothing. Just striking the mandate is the least likely outcome. They are more likely to uphold the entire law than gut it like that.

                  1. Interesting that you don’t feel the express lack of a severability clause enters the picture…

                    In its absence, they are more likely to strike it in this case because, mostly, the IM is integral to the legislative scheme, and, also, in a certain sense it would be more intrusive {subject the SC to more blame} to essentially have a line-item veto of Frankenstein legislation.

                    Then again, just cause the executive can’t have a line item doesn’t mean judges shouldn’t have one, wot?

                2. And the case you give doesn’t stand for the propesition that the Court has discretion to sever or not. It stands for the proposition that the court should only sever where striking down the unconstitutional provision prevents the law from functioning as intended.

                  You are misreading the case.

                3. But if Congress had passed it as is without the individual mandate, it would be Constitutional (under current Commerce Clause doctrine), yes? And that means that the Court can sever the mandate and leave the rest intact.

                  Correct, RC. This is why HillaryCare would have survived judicial review, as it had a legally discrete tax as the main funding mechanism as opposed to forcing the public at large to purchase a product. I still stand by my prediction that they will sever the mandate and leave mostly the rest in toto.

                  Either Justice Ginsburg (if they do not sever and uphold in toto) or Kennedy (sever, but leave the rest) will write the majority opinion. The result will be de facto Medicaid for all administered by the States through the State Exchanges, which is the entire point of ObamneyCare.

                  I will cum buckets if the entire thing is struck down, but I believe I will be denied such an orgasm.

                  1. I bet they strike it down in toto or leave it in toto. When that happens I won’t gloat much Groovus, at least not with you since you are a doctor no a lawyer. I will however be merciless with RC.

                    1. When that happens I won’t gloat much Groovus, at least not with you since you are a doctor no a lawyer.

                      John, you can gloat till the cows come home, but with the exception of the speed of implementation, my predictions of this law have not been wrong.

                      If I didn’t believe so strongly and resolutely that this law will stand either in toto or the most cost-ineffective legislation intact, I would not be fleeing the country. If I am wrong, I am gladly wrong, and may even come back to the US. If I am right (and I believe I am) then I may (and most likely) live the rest of my days as expat.

                    2. Agreed.

                      I think they’ll strike it 6-3. They have to.

                      for all the chatter, it’s really a slippery slope argument. Guys like Tribe able to seriously aver that Nancy et al can make you buy broccoli – essentially conflating “right” policy with “cogent” Constitutional analysis.

                      Basically, I think it’s not the only argument, but the most stark is simply… if they can do this, what else can they do? what can’t they… that in turn serves to remind one that regulation of commerce, especially in light of the 9th and 10th amendmnts [which, I understand, do exist] isn’t a blank check…

                      great article and great comments…

                  2. Again, Groovus, the question is not “is the rest of the act minus the mandate constitutional”. Of course it is constitutional. If it wasn’t they would strike those provisions down on their own. The issue is “can the act still function as intended without the stricken provision”. And Obamacare doesn’t pass that test with regard to the mandate.

                    1. Again, Groovus, the question is not “is the rest of the act minus the mandate constitutional”. Of course it is constitutional. If it wasn’t they would strike those provisions down on their own.

                      This is not in question; Scalia himself admitted as much. What he said was SCOTUS (read: Scalia) didn’t want to do a entire review of 1800+ pages of legal mumbo jumbo.

                      Scalia’s statements went to the fact that SCOTUS, minus the mandate, would be crafting new law out of existing cloth, something that does have precedent in SCOTUS decisions as RC points out.

                    2. No Groovus, Scalia was saying it was self evident that the law couldn’t stand without the mandate.

                    3. And once again, read the case the RC so graciously provided for us. It doesn’t support your proposition. It supports mine.

                4. Obamacare can function as intended if the States impose the mandate on their own. It is clear that a number of States intend to do this. If only the mandate is struck, insurance will only be available in those states that impose a mandate after a couple of years.

                  The court could also strike entire sections or titles of the law that are closely tied to the mandate without striking the whole thing. They might also strike aspects of the medicaid expansion but leave the rest intact, mandate included. There are an infinite number of possibilities. We just have to wait and see.

          2. Nope – SCOTUS ignores, creates, or ‘infers’ severability at will. Lots of cases on that….

            Here, let me google that for you…

            http://bit.ly/KoiGVN

            This shoudn’t surprise you – read O’Connor’s opinion in the Michigan Law affirmative action case in which she tells us that since the 14th prohibits discrimination based on race, when the government does it, it should only do it for a while.

            Yes, Virginia, that really was SCOTUS giving itself the power to sunset Con. violations applied to the states ‘selectively’ via another power the SC gave itself.

            1. Obamacare can function almost exactly as intended if the Federal mandate is struck by itself. Not exactly, but close enough for government work. The law can simply be taken as a strong incentive for the States to impose an individual mandate on their own if Congress cannot do so, just like with the drinking age. In practice, every State will have the option of imposing an individual mandate, imposing a tax to fund a single payer system inside the state, or have no private insurance available within the State at all.

  9. When Nancy Pelosi said “Are you serious?” to the question about the Constitutional underpinnings of Obamacare, that’s when I knew she knows nothing about the Constitutional and Constitutional law. And when what’s-his-name said “That’s not a serious question,” that’s when I knew Pelosi’s supporters and colleagues don’t know anything about the Constitution and Constitutional law.

    And they call US the stupid party.

    1. It’s not that they don’t know.

      They don’t care.

      The Constitution is, like, old and stuff. You know?

      Do not consider what it written, consider who wrote it.
      It was written by rich, white, slave-owning men.
      Rich. White. Slave owners. Men.
      No women. No poor people. No black people.

      Doesn’t matter what the Constitution says.
      When you consider the source, it doesn’t deserve any respect.

      Remember that where the left is concerned, principles do not matter.
      Only principals matter.

      1. I really like the last two sentences.

        Do I have your permission to borrow them? With propert attribution, of course.

        1. I’m sure I stole it from someone. Maybe not. I dunno.

          Feel free.

  10. So at what point in history did higher education standards slip to the extent that libertarian bullshit became an acceptable legal doctrine?

    1. The point at which you were handed a diploma.

    2. From approximately 1787 until the late 1930s.

      1. Think about it, T o n y. For a while, there was no income tax, no military draft, no federal reserve (and no inflation), all drugs were legal, and people could afford to pay their doctors out of their own pockets! It must have been hell.

        1. Think about it, T o n y.

          You’re asking a lot from Emote Boy.

          1. My bad. Hard to imagine, isn’t it, that gov’t was 10% the size it is now, we had lawful currency, no drug war, people ran their own lives, and reaped the rewards or suffered the consequences. And yet, people came here from all over the world.

            1. And yet, people came here from all over the world.

              And now people are leaving.

            2. “and reaped the rewards or suffered the consequences.”

              And then the capital classes and the labor classes started fighting, and the labor classes democratically allowed the New Deal and more and more government to defend themselves.

              They tried the rugged life. Didn’t like it.

        2. In fairness, sure they could pay for their own doctors. But until about the turn of the 20th Century, that got them a leech or amputation.

          1. 1978 my sister paid $8 for a prenatal doctor visit. That wasn’t the co-pay or the deductable, that was the charge for the visit. And the doctor had a staff of 1 to handle the paperwork.

            1. 1978 my sister paid $8 for a prenatal doctor visit.

              Then came The Most Conservative President Ever?.

              Fuck Reagan.

              1. You’re not suggesting that Reagan caused medical costs to skyrocket, are you?

                1. You’re not suggesting that Reagan caused medical costs to skyrocket, are you?

                  Yes. Yes I am.

                  http://en.wikipedia.org/wiki/E….._Labor_Act

                  1. You fucking idiot, that entry said numerous times that Congressed passed that act. You do know that presidents aren’t god-kings, don’t you? There was no mention of what Reagan thought of it or if he vetoed it. Thanks for exposing yourself as an idiot, I won’t waste the time to read any more of your entries.

                    1. There was no mention of what Reagan thought of it or if he vetoed it.

                      First sentence in the article:

                      The Emergency Medical Treatment and Active Labor Act (EMTALA)[1] is a U.S. Act of Congress passed in 1986 as part of the Consolidated Omnibus Budget Reconciliation Act (COBRA).

                      Click the link.

                      First sentence:

                      The Consolidated Omnibus Budget Reconciliation Act of 1985 (or COBRA) is a law passed by the U.S. Congress on a reconciliation basis and signed by President Ronald Reagan

                      idjit

                  2. That act didn’t raise overall medical costs. The fact is that those people were getting treatment anyway. There were tons of charity hospitals that took them. It just mean that non charity hospitals stabilized those patients and then transported them to a charity hospital. The whole act was created a bunch of bull shit scare stories.

                    yeah, that act was bad. But when you consider that those people were getting treated anyway, it didn’t raise the overall price of healthcare, just who was paying for it. Again, that is not good. But it is not the affect you are arguing for. If the act actually had raised medical care costs in the aggregate, then the scare stories would have been true and those people would not have been getting care. And that was just not the case.

                    1. The act shifted costs to government third party payer, which always causes prices to rise.

                      Like I said. Fuck Reagan. Anyone who thinks he’s a conservative must pay their mortgage with a credit card.

                    2. But the costs were already shifted to a third party payer, the charity hospital. The fact is that there were a certain number of people who couldn’t pay for medical care before the act. And those people received the same amount of treatment both before or after that act. So there total contribution to medical costs stayed the same. And both before and after the act the costs were still being paid for by someone else. So whatever inflationary pressures were created by a third party taking care of it were there before the act just as much after.

                      Again, that act didn’t increase total medical costs.

                    3. But the costs were already shifted to a third party payer, the charity hospital.

                      Reread what I wrote.

                      government third party payer != charity hostpial

                    4. The affect is the same either way whether it is government or the charity hospital. In both cases people are getting something for free.

                    5. There is an important distinction.
                      Charity relies on voluntary contributions, and is thus has an incentive to keep costs down.
                      Government has no such incentive.

                    6. Again, that act didn’t increase total medical costs.

                      Actually, I think it did, because EMTALA created an overt entitlement to go the emergency room and get taken care of.

                      Sure, you could do that before, but by making it overt, I believe it changed the way people acted. Once EMTALA passed, hospitals generally began getting a lot more people in their ERs who weren’t looking for emergency care.

                      It legitimized and entrenched a costly entitlement mentality.

                    7. So John, you’re saying that Congress did some grandstanding to take credit for solving a problem that private individuals were already taking care of? I’ll buy that.

              2. Because Reagen was elected God king and specifically decreed that medical prices must rise above inflation.

                Really?

                1. Because Reagen was elected God king and specifically decreed that medical prices must rise above inflation.

                  Just because unintended consequences are unintended doesn’t absolve the well-intentioned signer of legislation of responsibility.

          2. People could pay for their own doctors into the 1960s.

            1. Even people with no money? Or is being poor a crime punishable by death in libertopia?

              1. Back then, being poor was a temporary condition, and people had pride and found a way to pay their bills. Your Great Society put an end to that foolishness.

              2. Even people with no money?

                The Great Society was not created due to a lack of charity, but to take the shame out of it.

                1. And that has worked out so well. 47% of Detroit is literate, and the black community has been destroyed. The prisons are full of fatherless black men, but hey, at least there’s no shame it getting your entitlement!

                  1. CC – My point was that is was a “solution” to a non-existent “problem”.

                    1. See my 1:41 post

                    2. See my 1:41 post

                      So we’re in agreement.

                    3. It would appear so. Sorry, I get a little defensive regarding Reagan. I know he was no libertarian, but the left hated him with a burning passion, so he couldn’t have been all bad.

                    4. Sorry, I get a little defensive regarding Reagan.

                      MADD
                      Ramped up Drug War
                      militarization of the police
                      nearly tripled the budget deficit
                      amnesty
                      drinking age

                      That’s off the top of my head.
                      Government EXPLODED under Reagan.

                      Fuck him.

                    5. Gov’t has exploded under every president since Woodrow Wilson. I just remember getting out of high school in 1981 and soon after the economy took off like a rocket, and my liberal college professors we convinced that Reagan would get us all nuked. He compromised way too much with the libs, and the drug war on steroids was due to Tip O’Neil trying to find an issue the liberals could look tough on. If I recall, MADD is a private organization, the drug war was going to get ramped up no matter what, the budget deficit is Congress’ responsibility. Amnesty is fucked up, and the drinking age is a State issue.

                    6. Reagan got elected on a platform of cutting government, and under his watch it exploded.
                      He was a liar and a hypocrite.
                      Fuck him and fuck Hannity and all the other pundits that hail him as the patron saint of conservatism.
                      If he was a conservative then Obama is a classical liberal.

              3. T o n y|6.11.12 @ 1:24PM|#
                “Even people with no money? Or is being poor a crime punishable by death in libertopia?”

                Is being stupid a great value for shithead?

              4. Even people with no money? Or is being poor a crime punishable by death in libertopia?

                Everyone has money. Before the health care market was fascised medical care was no more expensive than any other skilled labor. As it should be, as it would still be if we had a free market.

                We now have a fully fascised health care system.

                Provider supply is strictly limited by the AMA/AAMC.
                Insurance is subsidized and the subsidy is only granted via employment.
                Insurance is cartellized within each state.
                Various special interests have secured mandates for insurance coverage of their specific service.
                The AMA has used their licensing authority to prevent any active competition between providers, drive out competing forms of medicine, and also notably to ensure fee-for-service is the sole business model for medicine.
                Pharmaceutical companies have been granted monopolies on drugs, whether they invent them or not (ie colchicine), and the costs of protecting their IP is socialized onto the taxpayer.
                Medicare and medicaid’s essentially “Cost-minus” model shifts costs onto private consumers.

                The entire system is designed to baffle the mechanism for reducing costs, competition. Every one of these interventions drive costs up, by obfuscating consumer perception of real costs.

              5. Further massive resources are shifted by all of these monopolist actors into ensuring their portion of the markets remain protected.

                It costs a lot of money to keep congress lobbied and to hire CEO’s with the appropriate connections to ensure favorable laws and regulation are maintained.

                In a free market profit is made by pleasing the customer. This always has to do with decreased price and improved quality.

                In a fascised or socialized market, profit is made by pleasing politicians. This has to do with squeezing enough rent from the consumer to keep the politicians bought.

                The fundamental problem with progressives, left or right, is that they want the power that allows for corruption to exist, but insist that this time for sure we will find angels that will seek this power, secure this power, then never use it, nor be corrupted by it.

                “Let no more be said about the confidence of men, but bind them down from
                mischief with the chains of the Constitution”
                — Thomas Jefferson

            2. I know. But the government is not totally to blame for medical care getting more expensive. Part of the reason is that it has gotten a lot better. And we are a lot richer. So there is nothing wrong with spending more of our incomes on medical care. It sounds like a good thing to spend our money on if you ask me.

              1. Well, consumer electronics keep getting better and cheaper, and that’s not due to an act of Congress. Look at housing, education, and health care. The more gov’t has gotten involved, the more expensive and fucked they have become.

                1. For example, laser eye surgery and plastic surgery aren’t covered by insurance, and continue to get cheaper and better. Or am I imagining that?

                  1. I’m still not taking up the 1/2 price Lasik surgery LivingSocial coupon. I want to pay full price for that, tattoos, and dentistry thank you very much.

        3. What was average life expectancy in that era?

          1. Whatever it was, it was increasing. Unlike your Soviet Union, where it is decreasing, even with gun control and universal health care.

          2. T o n y|6.11.12 @ 1:23PM|#
            “What was average life expectancy in that era?”

            What other irrelevancy can shithead post?

          3. Life expectancy is an illogical metric when talking about health care. You may as well measure the reliability of cars by counting how many get hit at train crossings.

            Comparative outcomes is the metric. How many people survive possibly terminal illnesses. In that metric more free market systems always produce better results. Our fascist system produces better results than socialized systems. But it could be, and should be, better.

            And yes, medicine in the US was was better in that period as well.

            It still is. People come to the U.S. from all over the world when they have a serious illness.

            Quality is not the problem here, as it is in Canada or the UK. Cost is.

            That can be easily remedied by replacing our fascist model with a free market capitalist one. IE stop protecting everyone’s interest but the consumer.

    3. “”robust libertarian legal movement that insisted Congress may not exercise powers the Constitution does not grant.”

      What part do you disagree with Tony?

    4. T o n y|6.11.12 @ 12:39PM|#
      “So at what point in history did higher education standards slip to the extent that libertarian bullshit became an acceptable legal doctrine?”

      At what point will shithead ever post without lying?

      1. Good luck with that.

    5. So at what point in history did higher education standards slip to the extent that libertarian bullshit became an acceptable legal doctrine?

      1776

    6. When Harvard Law professors told us Congress can make you buy broccoli but can’t make you eat it – because, why, that which is “Constitutional” is that which vapid Ivy League twats pull out of thin air like so much fiat intellect.

      1. All of my life’s experiences tell me that Ivy matriculees are not necessarily the best and the brightest.

        In fact, an Ivy boy or gal is much more apt to be syntactically challenged. Their speech is far more apt to be fraught with filler (think Obama speaking extemporaneoulsy without the teleprompter).

      2. No politician mandating broccoli would get elected or reelected.

        How come libertarians always assure us customers would punish bad companies on their own without agencies overseeing private enterprises (“No need for the FDA – consumers will punish companies with poor health standards!! SLAVER!”), but libertarians have no faith in the ability of voters to strike down bad politicians?

        Is it because they are inconsistent and constantly prevaricating? MMMmmprobably.

    7. CDN$

  11. Damon, My compliments on this absolutely article! Seriously, as a non lawyer this article taught me a lot about the commerce clause and its tortured history beginning with the new deal. Talk about “unintended consequences”!!

    1. insert “superb”

  12. The wonderful thing about regulating interstate commerce…

    Is the commerce, apparently, doesn’t need to be interstate.

    http://www.forbes.com/sites/ar…..uce-costs/

    And then there’s the one about the government saying you can’t sell pot based on regulating interstate commerce, then arresting people for in-state use because hey, when enough people in a state smoke pot, that’s affecting the overall, non-existent and forbidden market in inter-state pot.

    Go back to sleep.

  13. Apropos of little – where in the Constitution did it give SCOTUS the right to *selectively* apply the Bill of Rights against the states?

    And how do you get from equal protection under the law to enshrining race based preferences… pardon an old fool, but… isn’t that… sort of… exactly what the document says you may not do?

    Seems like both wings love to conflate their *policy* aims with applying the Constitution… or ‘interpreting’ it to further such policy goals.

    So remember, ultimately, it’s up to 5 unelected lawyers to tell you if and when war = peace, freedom = slavery, and you can teach Con Law at Harvard while claiming Congress can make you buy broccolli…although only a damned idiot would think they could make you eat it.

    Words mean what we want them to mean, you see! Democracy a dictatorship can be!

    I have misplaced my pants….

  14. I believe the Supreme Court will do the right thing and repeal totally ObamaScare.
    If not.
    If not, the we all just refuse to buy it until we get sick, then we join the club.. 🙂

  15. Dr. Tingleberry, first of all find your pants, put them on, keep them on..
    sigh.
    Back to business. No way can make us buy anything, its just not in our constitution.

  16. ‘among the states” does not mean commerce by and between individuals or by and between individuals and voluntary associations of individuals or by and between voluntary associations of individuals.

  17. Forget the fact liberal social philosophy doesn’t ever work, the founding fathers rejected the federal govt. could interfere with healthcar:

    “The powers delegated by the proposed Constitution to the federal government, are few and defined. Those which are to remain in the State governments are numerous and indefinite. The former will be exercised principally on external objects, as war, peace, negotiation, and foreign commerce; with which last the power of taxation will, for the most part, be connected. The powers reserved to the several States will extend to all the objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people, and the internal order, improvement, and prosperity of the State.”
    –Madison, Federalist 45

  18. If it sticks it will be scary indeed: http://modeltstocktrends.blogs…..oween.html

  19. Avec ? peu pr?s chaque ann?e la relocalisation Nike a r?cemment con?u et am?lior? la sneaker r?el sur le plein aussi il semble garder l’am?lioration avec aucune indication de sa popularit? waning.Certainly l’une des caract?ristiques de plusieurs qui font de la sneaker r?el si populaire peut ?tre sa polyvalence et aussi la vaste gamme de mod?les diff?rents. La seule marque continue ? ?tre encourag?e par les joueurs et les superstars de chaque marche impliquant mode de vie. Ils peuvent ?tre enfil? tout en jouant une balle de golf, le soccer, la course ou peut-?tre juste pour les actions par jour ? peu pr?s tous.

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  22. In the obama presidency this government have most concentration on this program.

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  25. supporters faced a challenge they hadn’t expected: Their sweeping conception of federal authority had to contend with a robust libertarian legal

  26. o In the case leading to increased risks insured (Changing the structure of the car, use the car, ..). The insurance company may recalculate the premium for the remaining coverage period of the insurance contract. In case the owner does not accept the increased premiums, the insurance company has the right to unilaterally terminate the insurance contract. but prior notice in writing 15 days in advance and vehicle owners must repay 100% of the premium corresponding to the time remaining insurance conditions vehicle owners paid in full and on time premium.
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  27. o In the case leading to increased risks insured (Changing the structure of the car, use the car, ..). The insurance company may recalculate the premium for the remaining coverage period of the insurance contract. In case the owner does not accept the increased premiums, the insurance company has the right to unilaterally terminate the insurance contract. but prior notice in writing 15 days in advance and vehicle owners must repay 100% of the premium corresponding to the time remaining insurance conditions vehicle owners paid in full and on time premium.

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  28. o In the case leading to increased risks insured (Changing the structure of the car, use the car, ..). The insurance company may recalculate the premium for the remaining coverage period of the insurance contract. In case the owner does not accept the increased premiums, the insurance company has the right to unilaterally terminate the insurance contract. but prior notice in writing 15 days in advance and vehicle owners must repay 100% of the premium corresponding to the time remaining insurance conditions vehicle owners paid in full and on time premium.
    tank you

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  29. Regular maintenance services, now provided by ????? ???? center for customers in all governorates in Egypt, in order to maintain the quality of electrical appliances

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  30. More discounts, and brilliant performances, provided by ????? ??????
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  31. Do you want to experience and competence in the maintenance of electrical appliances?
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  32. Constant maintenance to maintain the efficiency of electrical appliances in the work, and the elimination of recurring faults, through ????? ???????

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  33. Our company is the characteristic of the leading companies in all areas , it provides a service
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  34. Our company is the characteristic of the leading companies in all areas , it provides a service
    Using the most powerful detergents Internatioanl universally recognized and approved by the Ministry of Health Our company
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  35. Our company is the characteristic of the leading companies in all areas , it provides a service
    Using the most powerful detergents Internatioanl universally recognized and approved by the Ministry of Health Our company
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  36. Our company is the characteristic of the leading companies in all areas , it provides a service
    Using the most powerful detergents Internatioanl universally recognized and approved by the Ministry of Health Our company
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  37. On November 8, 1994, the Supreme Court heard oral arguments in United States v. Lopez. At issue was whether the Commerce Clause allowed Congress to forbid the possession of a gun within 1,000 feet of a school. Unlike the federal price-rigging scheme

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    upheld in Wickard, the Gun Free School Zones Act challenged in Lopez had no direct connection to economic activity, whether local or national. Instead the government claimed that gun violence, taken in the aggregate, undermined the nation’s educational system, which in turn substantially affected the U.S. economy.

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