Health Care Law Unconstitutional

[A Laughing Baby]

Of course he does. Any rational person would because the clause grants power to make laws to carry into effect the powers enumerated before it. It must be subjugated to an enumerated power because it says it must.

Not quite, at least according to Orin Kerr.

Here is what he had to say on the Hudson ruling, which used a lot of the same reasoning but subjugated the Necessary and Proper Clause to a greater extent than Vinson's.

The point of the Necessary and Proper clause is that it grants Congress the power to use means outside the enumerated list of of Article I powers to achieve the ends listed in Article I. If you say, as a matter of “logic” or otherwise, that the Necessary and Proper Clause only permits Congress to regulate using means that are themselves covered by the Commerce Clause, then the Necessary and Proper Clause is rendered a nullity. But that’s not how the Supreme Court has interpreted the Clause, from Chief Justice Marshall onwards. Indeed, as far as I know, not even the most vociferous critics of the mandate have suggested that the Necessary and Proper Clause can be read this way.

And here's a quote from his thoughts on the Vinson ruling (I can't link the url since connecting to that url crashes my browser for some reason, it's on the same site, easy to find):

This might work as a Supreme Court opinion that can disagree with precedent. But Judge Vinson is just a District Court judge. And if you pair Justice Thomas's dissent in Raich with Judge Vinson's opinion today, you realize the problem: Judge Vinson is reasoning that existing law must be a particular way because he thinks it should be that way as a matter of first principles, not because the relevant Supreme Court doctrine actually points that way. Remember that in Raich, the fact that the majority opinion gave hte federal government the power to "regulate virtually anything" was a reason for Justice Thomas to dissent. In Judge Vinson's opinion, however, the fact that hte government's theory gave the federal government the power to "regulate virtually anything" was a reason it had to be inconsistent with precedent.

 

[Meadmaker]

Your entire analysis depends on the U.S. at some point becoming a center-left country...when it's a center-right country at this point.

Or it requires the center to move.

Ideology has a tendency to morph when checks have to be written. As our employer-centered provision of health care works for fewer and fewer people, they will demand a government solution. The individual mandate is the way to do that while maintaining a market-oriented solution, but that's a secondary concern to a lot of people.

If the argument is that anything that could affect health care costs can be mandated by Congress...then it could be expanded to apply to virtually anything since everything we do has some affect on our health. The food we eat, what we drink, the television we watch, the time we spend on the Internet, how much we exercise, etc.

You really believe that Congress has the power to mandate and regulate all of that?

Sort of. Does it affect a fundamental right? For example, regulating how we watch television could, depending on how it is done, curtail freedom of the press. If it did, Congress doesn't have that power. However, if what you do affects me, and it is not a fundamental right, protected by the Constitution, then yes, I think they have the power to mandate and regulate all of that.

It still has to pass issues of substantive due process, meaning it has to survive a rational basis or strict scrutiny test, and it has to survive a political popularity test by getting Congress to pass it in the first place, but other than that, I don't have a problem.

Sometimes it is hard to judge these sort of strange hypothetical questions. Does Congress have the power to mandate brocolli consumption? They won't, so it's hard to imagine it. However, if they did? Well, at that point I (and more importantly, a real judge) would have to consider an actual law that was really passed before declaring that it is or is not constitutional. Most would not be, either for lack of a rational basis, or for a problem with search laws and privacy issues, or many judges would consider diet choices so personal and historically so important that it should be considered a fundamental right, and unregulatable for that reason, despite the fact that it is not mentioned explicitly in the Constitution.

It's hard to make that same case for the right of non-insurance.

In general, if what you do has a real and substantive effect on me, even if that effect is an indirect one, then I think Congress has the power to regulate it. If not, or if it is the exerecise of a fundamental right, then they can't. I think your decision to go uninsured does have an effect on me, while your choice to not consume brocolli does not.

 

[Neally]

I think your decision to go uninsured does have an effect on me, while your choice to not consume brocolli does not.

Not so if I'm uninsured and pay all my own costs, some of which I do domestically other treatments I do off shore.

If in aggregate, broccoli consumption was found to result in 10% fewer incidences of colds or flu per year, that would have a significant economic impact on days lost at work. Should congress be allowed to regulate this clearly significant economic activity given the assumption?

 

[Meadmaker]

If in aggregate, broccoli consumption was found to result in 10% fewer incidences of colds or flu per year, that would have a significant economic impact on days lost at work. Should congress be allowed to regulate this clearly significant economic activity given the assumption?

If pigs were found to fly, I think they would fall under the Commerce Clause jurisprudence, regulated by the FAA because of their effect on interstate commerce.

Your somewhat less ridiculous hypothetical would, likewise, fall under the influence of the Commerce Clause. Now it would have to pass a whole lot of other constitutional hurdles. Is it broccoli, specifically? If not, then there would be much less restrictive measures that could achieve the same ends. Is food choice something that people would consider a previously unmentioned, but nonetheless fundamental right? Many judges would say it was such a right, and would overturn it

In general, I do think that if there is some action you could take, and your failure to take that action causes a problem for me, then it falls under the power of the legislature to regulate.

That doesn't mean, though, that it will pass through Congress. The pro-broccoli lobby isn't all that strong.

 

[willhaven]

Regulating broccoli consumption would prove to be slightly more difficult than determining whether or not a person maintains health insurance coverage.

 

[JoeTheJuggler]

There's already a thread about this topic, and it already includes discussion of Vinson's decision. I think I'll put most of my posts there since we've already been talking about these same issues there.

_____

Since it hasn't taken effect yet, it's not really "thrown out" until it goes before SCOTUS.

Besides that, Vinson denied the plaintiff injunctive relief (recognizing that the matter will pretty much have to be decided by the SCOTUS).

 

[A Laughing Baby]

There's already a thread about this topic, and it already includes discussion of Vinson's decision. I think I'll put most of my posts there since we've already been talking about these same issues there.

_____



Besides that, Vinson denied the plaintiff injunctive relief (recognizing that the matter will pretty much have to be decided by the SCOTUS).

Forgive my cynicism and rampant assumption-making here, but I kind of assumed that forcing the SCOTUS to rule on it was his whole point of doing this.

 

[gnome]

A prediction: Thumbs up or thumbs down on the law, the USSC will not rule on whether the commerce clause is being properly implemented in this case. It will be decided on narrower grounds.

 

[A Laughing Baby]

A prediction: Thumbs up or thumbs down on the law, the USSC will not rule on whether the commerce clause is being properly implemented in this case. It will be decided on narrower grounds.

I find that hard to believe though, since the implementation of the Commerce Clause is the basis for the entire argument that the law is unconstitutional.

 

[deepatrax]

A prediction: Thumbs up or thumbs down on the law, the USSC will not rule on whether the commerce clause is being properly implemented in this case. It will be decided on narrower grounds.

My prediction is that the SCOTUS will rule on this in regards to the Commerce Clause and will say it's unconstitutional.

not only that, but I believe it won't be a 5-4 vote...I'm betting it's 6-3.

 

[Bob Blaylock]

I find that hard to believe though, since the implementation of the Commerce Clause is the basis for the entire argument that the law is unconstitutional.

That's slightly backward, actually. The Commerce Clause is the entire basis for arguing that it's constitutional. If not for the Commerce Clause—and an absurdly broad interpretation thereof—there would be no question at all, that the Obamacare scam is blatantly unconstitutional, going very, very far beyond any authority that the Constitution delegates to the federal government.

Take away the Commerce Clause—or restrict its interpretation to a level that reflects any plausible interpretation of what its authors might have possibly meant—and you have no basis at all for suggesting that Obamacare is in any way Constitutional.

 

[A Laughing Baby]

That's slightly backward, actually. The Commerce Clause is the entire basis for arguing that it's constitutional. If not for the Commerce Clause—and an absurdly broad interpretation thereof—there would be no question at all, that the Obamacare scam is blatantly unconstitutional, going very, very far beyond any authority that the Constitution delegates to the federal government.

Take away the Commerce Clause—or restrict its interpretation to a level that reflects any plausible interpretation of what its authors might have possibly meant—and you have no basis at all for suggesting that Obamacare is in any way Constitutional.

That was what I was saying. The implementation of the Commerce Clause is the basis for arguing that this is an unconstitutional law. I guess if you want to put it another way, you could say that the claimants are arguing that broad implementation of the CC is what makes this unconstitutional, but regardless, the case will undoubtedly center around that particular clause.

 

[gnome]

I stand by my prediction. Though it's true the way I phrased it is a bit ambiguous. Is a victory for this law a victory for this usage of the commerce clause even if they don't address it as such?

So I'll say it closer to how I meant it--the decision will not provide any extra clarity as to the limits of the commerce clause. Does that seem more feasible?

 

[A Laughing Baby]

I stand by my prediction. Though it's true the way I phrased it is a bit ambiguous. Is a victory for this law a victory for this usage of the commerce clause even if they don't address it as such?

So I'll say it closer to how I meant it--the decision will not provide any extra clarity as to the limits of the commerce clause. Does that seem more feasible?

Absolutely, and I agree with you. It would be pretty surprising to me if the current court were willing to step forward to be The Court Who Defined _______ Forever.

 

[gnome]

Absolutely, and I agree with you. It would be pretty surprising to me if the current court were willing to step forward to be The Court Who Defined _______ Forever.

Actually I bet they would love to be, it's a legacy. But what they don't want to be is The Court Who Tried To Define ____ Forever But Really Mucked It All Up And Some Later Court Had To Fix It.

Who wants to be the Plessy v. Ferguson court?

So they exercise some restraint. I guess in a way it's the system working.

 

[A Laughing Baby]

Actually I bet they would love to be, it's a legacy. But what they don't want to be is The Court Who Tried To Define ____ Forever But Really Mucked It All Up And Some Later Court Had To Fix It.

Who wants to be the Plessy v. Ferguson court?

So they exercise some restraint. I guess in a way it's the system working.

That's true. We'll see when the ruling comes.

 

[deepatrax]

The pro-mandate argument hinges on one premise:

The uninsured are participating in Commerce and therefore their "activity" of not doing something can be regulated.

This premise requires you to believe that:
1) The uninsured will at some point require medical care
2) When that happens, someone else will have to pay for them.

Both of these are flat wrong.

It is possible to be uninsured and NEVER require medical care
It is possible to be uninsured and to pay all health care costs out-of-pocket

 

[A Laughing Baby]

The pro-mandate argument hinges on one premise:

The uninsured are participating in Commerce and therefore their "activity" of not doing something can be regulated.

This premise requires you to believe that:
1) The uninsured will at some point require medical care
2) When that happens, someone else will have to pay for them.

Both of these are flat wrong.

It is possible to be uninsured and NEVER require medical care
It is possible to be uninsured and to pay all health care costs out-of-pocket

It's possible to be uninsured and NEVER get in a car accident, and it is possible to be uninsured and pay all damages from a car accident out of pocket. And yet...

 

[deepatrax]

It's possible to be uninsured and NEVER get in a car accident, and it is possible to be uninsured and pay all damages from a car accident out of pocket. And yet...

it is possible to never have auto insurance...thus you can freely opt out of buying a car (commerce) and driving it on a public road (where your activities can be regulated)

Many people live productive lives and pay ZERO auto insurance and are never penalized.

not to mention that auto insurance is a State and not a Federal issue.

 

[gnome]

Constitutionality aside, what do you think would be the most fair setup?