The "general Welfare" part is a prima facie case that Congress has this authority.
As I said,
if the "penalty" for not buying insurance is a tax, that may be legit. But the "general welfare" is not a carte blanche for Congress. It is nearly a carte blanche for Congress to
tax and to
spend and that's it. If Congress wanted to, say, outlaw murder, it could not do so under the "general welfare" clause, even though such a law would promote the general welfare. The reason is that it doesn't involve taxing or spending. If, on the other hand, Congress wanted to provide a public healthcare option, that
does involve spending, and would be a legitimate exercise of that power.
If you're arguing that the bill is unconstitutional, the burden is on you to make that argument, not on anyone else to prove that it's not unconstitutional.[citation needed]
This makes a lot of sense if you're dealing with a state government. A state constitution generally gives plenary power to the legislature, and then imposes limits on that. The US Constitution gives
enumerated powers to Congress (and then imposes even more limitations on those). I honestly don't know at the moment how the burden of proof falls when challenging a federal statute's constitutionality, but given the difficulty of proving a negative, it seems like it ought to fall on the proponent of the statute's constitutionality, not the opponent. Am I supposed to list each and every power of Congress, and explain why that power may not be used to force Americans to buy health insurance? Or maybe it makes more sense for me to take the two most likely suspects (general welfare and ICC) and argue against those two.
Anyway, I don't have a dog in this fight. I think it's good policy to require Americans to purchase health insurance, but I also think it shouldn't stand if it's unconstitutional. And I don't know enough about the proposal or the arguments surrounding it to have an opinion as to whether it's unconstitutional.
Actually, read the posts of those who disagree. You will see that they really do want the ability to do just anything that they can vote in.
Essentially, that is a statement of an end run around the Constitution, and the particular method used, whether thru alleging the interstate commerce clause or some other, is irrelevant.
It's totally relevant. If a particular act is authorized under the interstate commerce clause, then it's not an end run around the constitution, it's within the constitution - it's constitutional.
It amounts in the immediate, to a breakdown of the checks and balances set up by the founding fathers, and is tantamount to a constituional crisis.
Although the founders didn't apparently specifically say so, they gave us a system where only one body can meaningfully give us a consistent and binding interpretation of the vaguer parts of the Constitution. So what does it mean to regulate commerce among the several states? Right now it means what you find in
Lopez and in
Morrison. And you don't have to like
Lopez and
Morrison, but they are the law, and if a statute conforms to those principles, it is constitutional, in any sense for which that word is meaningful.
well, Congress has to first do something, and then someone has to sue to see if it is Constitutional.
the whole system is based on laws being passed first....and then standing up to judicial scrutiny.
can un-Constitutional Presidential actions and Congressional laws stay in place if nobody chooses to sue?
pretty much.
This is true, but you know somebody will sue if this gets passed.
Not only that, but as I understand it, a person has to be directly affected by said law to be able to challenge it. This is the concept of "standing". Someone wanting to challenge a law basically has to have that law come down on them first. This can be really bad if they're wrong.
That's true too, but if this law is passed, it will come down on everyone, so it won't be at all hard for anyone to have standing.
