Right Wing Judge Says ObamaCares is Constitutional

[Minoosh]

I hear this a lot do you have evidence for this?

Abstract of New Yorker article

http://http://www.newyorker.com/reporting/2011/06/06/110606fa_fact_lizza

 

[Grizzly Adams]

I suspect they'll rule it's constitutional.

And effectively eliminate any restriction on federal power in the process.

I hope not.

 

[Grizzly Adams]

Mandatory health insurance was not an issue with conservatives until Obama took office.

Hasty generalization is still a logical fallacy, right?

One mildly redeeming feature of the practice of court-packing is that jurists occasionally get feisty and, with no further need to suck up, do what they think is right.

That is not a redeeming feature. They should be doing what is constitutional, not what they think is "right."

 

[JoeTheJuggler]

And effectively eliminate any restriction on federal power in the process.

No. The broad interpretation of the Commerce Clause authority is not unlimited federal power.

 

[Grizzly Adams]

There is a sound legal and logical basis for the individual mandate.

There is certainly a sound logical basis for the mandate, but no legal one. At least, no legal basis that doesn't involve twisting the Constitution into a monstrous leviathan that it was never intended to be. There is no provision in the document for the individual mandate. No, the commerce clause won't save you. Even Alexander Hamilton, a proponent of a strong federal government, would agree with that. When he argued against a bill of rights, he stated it wasn't necessary because the national government cannot exercise powers it had not been given. As an example, he used the freedom of the press clause. Since Congress was not delegated the power to regulate the press, the declaration that it was prohibited from doing so was superfluous and dangerous. Newspapers certainly crossed state lines back in 1787, so under the modern reading of the commerce clause they are regulable, but under the original understanding of the Constitution they were not.

There is no way to justify the individual mandate without amending the Constitution. Judges may decide otherwise, but no rational person could reasonably claim they were upholding the document.

No. Reasonable. Person.

(Mostly they leave off the authority granted the judiciary to resolve all conflicts arising from the law, including the Constitution so that they can ignore the extensive case law wrt the Commerce Clause authority of Congress.)

Who does this?

 

[Grizzly Adams]

No. The broad interpretation of the Commerce Clause authority is not unlimited federal power.

No, it doesn't allow them to come into your home in the middle of the night and rape your infant son.

I realize it doesn't actually grant wholly unlimited federal power.

 

[Juniversal]

no you're pretty oblivious to the fact that it was YOUR side who screwed everything up, obama just got handed the mop. One more victim of Right Wing stupidity, so sad....

Cain is one of the most sarcastic people on this site. Don't think his comment was serious.

 

[madfoot]

Interesting ruling.

The Government concedes the novelty of the mandate and the lack of any doctrinal limiting principles; 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. But the Government does stress that the health care market is factually unique; there are few other markets, it says, where participation is a virtual certainty, or where declining to buy a product disproportionately causes a national economic problem.

We acknowledge some discomfort with the Government’s failure to advance any clear doctrinal principles limiting congressional mandates that any American purchase any product or service in interstate commerce. But to tell the truth, those limits are not apparent to us, either because the power to require the entry into commerce is symmetrical with the power to prohibit or condition commercial behavior, or because we have not yet perceived a qualitative limitation.

You're not the only one who feels uncomfortable, Judge Silberman.

 

[willhaven]

None of this matters.

It will find its way to the SCOTUS, where it will be ruled unconstitutional in a 5-4 decision.

Likely true. It won't have a big lasting impact on the law, however. The Heritage Foundation/Repiblican individuals date idea may be found unconstitutional. It may not. What the mandate does can be fixed with other legislation. Far easier than repeal.

Many people are under the mistaken assumption that this will repeal the whole law. That's always a cute argument to hear.

 

[Grizzly Adams]

Likely true. It won't have a big lasting impact on the law, however. The Heritage Foundation/Repiblican individuals date idea may be found unconstitutional. It may not. What the mandate does can be fixed with other legislation. Far easier than repeal.

Many people are under the mistaken assumption that this will repeal the whole law. That's always a cute argument to hear.

There's no severability clause in the law, and the mandate was billed as essential to the law's effectiveness. If the madate is unconstitutional it should overturn the entire legislation.

 

[Unabogie]

There's no severability clause in the law, and the mandate was billed as essential to the law's effectiveness. If the madate is unconstitutional it should overturn the entire legislation.

And yet this right wing judge says it's not unconstitutional. In case you're keeping score, Obama has won in more courts than he's lost. And most legal scholars think poorly of the decisions that threw out the law.

 

[madfoot]

Likely true. It won't have a big lasting impact on the law, however. The Heritage Foundation/Repiblican individuals date idea may be found unconstitutional. It may not. What the mandate does can be fixed with other legislation. Far easier than repeal.

Many people are under the mistaken assumption that this will repeal the whole law. That's always a cute argument to hear.

I was under the impression that the mandate was the most important part of the law, since it's the only way to make the other reforms (such as banning pre-existing conditions) workable.

 

[Grizzly Adams]

And yet this right wing judge says it's not unconstitutional.

And if he says it's constitutional, he wouldn't really address severability, would he? So I don't know what you're cackling about.

In case you're keeping score, Obama has won in more courts than he's lost. And most legal scholars think poorly of the decisions that threw out the law.

Perhaps those "legal scholars" need to go back and read the document that created this nation's government. This time for comprehension. And then they can see that no clause in the Constitution authorizes the individual mandate and it is therefore, by definition, unconstitutional.

 

[madfoot]

And if he says it's constitutional, he wouldn't really address severability, would he? So I don't know what you're cackling about.


Perhaps those "legal scholars" need to go back and read the document that created this nation's government. This time for comprehension. And then they can see that no clause in the Constitution authorizes the individual mandate and it is therefore, by definition, unconstitutional.

But if people broke the Constitution 50 years ago, that sets precedent for breaking the Constitution today. /s

 

[SezMe]

No. Reasonable. Person.

My bold. I see that our friend, No True Scotsman, has joined the conversation.

 

[BobTheDonkey]

And if he says it's constitutional, he wouldn't really address severability, would he? So I don't know what you're cackling about.


Perhaps those "legal scholars" need to go back and read the document that created this nation's government. This time for comprehension. And then they can see that no clause in the Constitution authorizes the individual mandate and it is therefore, by definition, unconstitutional.

*sigh*

We've been over this:

"Provide for the General Welfare" and "Levy Taxes" to pay for it. See, that's easy enough.

ETA: Note that you don't have to get health insurance of the minimum standard (or at all), but you will be taxed/fined instead. In fact, the fine/tax is only applicable to people who choose not to have health insurance. And, yes, I know the text states that citizens are required to maintain health insurance. But there are no criminal penalties for not doing so - only a fine that amounts to about what one would pay for insurance. Not exactly a "mandate" the way that many people try to make it sound.

 

[Grizzly Adams]

*sigh*

We've been over this:

"Provide for the General Welfare" and "Levy Taxes" to pay for it. See, that's easy enough.

If that clause was meant to be as infinitely expansive as you claim, there would have been absolutely no need for the power enumerated after it. The most sensible reading of the clause is that it is not a grant of power, but instead a further limitation on it. That is, the actions taken by the federal government under the granted powers that followed it must be for the general welfare and not a special interest.

So that leaves you with the indefensible position that the framers wrote a single clause that could take care of anything the nation needed (while at the same time calling the national government one of few and defined powers) and then decided to add some verbal diarrhea just to take up some space.

ETA: Note that you don't have to get health insurance of the minimum standard (or at all), but you will be taxed/fined instead. In fact, the fine/tax is only applicable to people who choose not to have health insurance. And, yes, I know the text states that citizens are required to maintain health insurance. But there are no criminal penalties for not doing so - only a fine that amounts to about what one would pay for insurance. Not exactly a "mandate" the way that many people try to make it sound.

Quibble all you want. It's a mandate.

 

[BobTheDonkey]

If that clause was meant to be as infinitely expansive as you claim, there would have been absolutely no need for the power enumerated after it. The most sensible reading of the clause is that it is not a grant of power, but instead a further limitation on it. That is, the actions taken by the federal government under the granted powers that followed it must be for the general welfare and not a special interest.

So that leaves you with the indefensible position that the framers wrote a single clause that could take care of anything the nation needed (while at the same time calling the national government one of few and defined powers) and then decided to add some verbal diarrhea just to take up some space.

So you're going to try to argue that universal healthcare does not fall under "Provide for the General Welfare"? Because that's quite the stretch.

Quibble all you want. It's a mandate.

It's better than your quibble that universal healthcare somehow doesn't fall under "General Welfare".

 

[SezMe]

The most sensible reading of way I read the clause is that it is not a grant of power, but instead a further limitation on it.

Isn't that more accurate? What gives you the power to define "most sensible"?

 

[Neally]

*sigh*

We've been over this:

"Provide for the General Welfare" and "Levy Taxes" to pay for it. See, that's easy enough.

And *sigh*, it has been clearly shown that this is not a "tax". It's a penalty and a mandate.

BTW the SC has put this on the docket. We should have the final word by about June of next year.