Health Care Bill Constitutionality?

[tyr_13]

Which legal theory of states' rights are you using?

(He asks again and again and again.)

I love it when people who can't even name, let alone explain, the three branches of US federal government throw around 'legal interpretations'.

Oh no, Congress can't repeal a power they just gave to the executive branch. Well no, really? I'm sure that's NEVER happened before.

 

[daenku32]

I'm waiting on the small government folks to drop their insurance, since having it is such a bad idea.

 

[KoihimeNakamura]

Re: BAC's claim re advisory board not being repealed

I'm betting it has provisions in it that prevent it from being repealed until a certain point in time.

 

[KingMerv00]

Re: BAC's claim re advisory board not being repealed

I'm betting it has provisions in it that prevent it from being repealed until a certain point in time.

At least some republicans seem to be under the impression it can be repealed:

http://www.huffingtonpost.com/2009/12/27/mcconnell-hints-that-gop_n_404264.html

 

[KingMerv00]

I love it when people who can't even name, let alone explain, the three branches of US federal government throw around 'legal interpretations'.

To me, it is like going into the science forum and declaring special relativity false without using math.

 

[FlamingMoe]

Re: BAC's claim re advisory board not being repealed

I'm betting it has provisions in it that prevent it from being repealed until a certain point in time.

No, it does not.

It does, however, make it federal law that the section is unalterable sans a three-fifths supermajority in the Senate supporting such a change. It also has some quite cryptic (even for legalese) language regarding "expedited" procedures when it comes to bills considered under that section.

The fact that the clauses regarding change or repeal of the section in question may be waived makes them less problematic. However, it does call into question exactly who is making the rules for the Senate. The Constitution clearly states each house of Congress shall have the right to make "the Rules of its Proceedings". This law would make it out of order to consider any bill in the Senate relating to this section without a three-fifths majority. This means (arguably) the Senate would not be determining the rules of its proceedings, federal statute would. Whether or not the fact the law was passed by the Senate is enough to overcome that is open to debate, but each house does pass new rules for each session of Congress.

 

[FlamingMoe]

Earlier, I noted that arguments about the unconstitutionality of much of what the federal government does today are just a little bit short of kooky.

How is it even close to "kooky" to argue today's federal government expands so far beyond the boundaries envisioned by the framers of the Constitution that Hubble itself would have a hard time seeing the original lines? Sure, the Supreme Court has disagreed over the course of the last 75 years, but that doesn't mean we're wrong. The USSC does not possess judicial infallibility -- Plessy v. Ferguson and Brown v. Board of Education is proof enough of that.

The USSC sticks to the idiocy of the New Deal court, and the only plausible reason I can come up with is because so much would be set upside down were some of those opinions overturned. Economic expediency and the irrational demand that someone, anyone, needed to do something, anything, trumped the Constitution in the 1930's. No further evidence of this fact is needed beyond the supreme stupidity of Home Building & Loan Association v. Blaisdell where the USSC declared that, while the Constitution explicitly prohibited the states from altering contracts, that the states could, in fact, alter contracts. The Constitution became squishier every time the Court upheld the government's latest intrusion into the market and people's liberties. The panic of the Depression changed the momentum of constitutional jurisprudence, and the inertia that interpretation has gained since is nigh unstoppable. Just imagine the turmoil that would ensue if the USSC dared to declare that we are going to return to a federal government of few and enumerated powers.

So no, it is not "kooky" at all to argue against the constitutionality of most of what the government does. And Madison would almost certainly be on our side.

 

[tyr_13]

How is it even close to "kooky" to argue today's federal government expands so far beyond the boundaries envisioned by the framers of the Constitution... (snip)

'Beyond the boundaries envisioned by the framers' does not equal 'Unconstitutional'.

 

[Meadmaker]

So no, it is not "kooky" at all to argue against the constitutionality of most of what the government does. And Madison would almost certainly be on our side.

He certainly would, but he's dead now.

I loved the line from one of those sites that said, "Unless something is done, and soon, the United States is doomed as a republic." (Quote from memory.) Yeah. Doomed. Right now. Do something soon. Go to your window and shout, "I'm mad as hell, and I can't take it anymore." Do it right now. It's important.

Sorry, but that kind of rhetoric is just kooky.

 

[MattusMaximus]

Still no legal theory for why this bill would be unconstitutional?

So far it seems to me that the "legal theory" being used here consists of screaming, ranting, and basically making crap up out of whole cloth in an attempt to 1) give the illusion of being relevant, and 2) keep the rightwing base whipped up into a frenzy.

You know, birther-type stuff

 

[JoeTheJuggler]

Sure, the Supreme Court has disagreed over the course of the last 75 years, but that doesn't mean we're wrong. The USSC does not possess judicial infallibility -- Plessy v. Ferguson and Brown v. Board of Education is proof enough of that.

Very true, but these observations still do not consist of any legal theory that either of the healthcare bills is unconstitutional.

What's kooky is that people think it's enough to say that the government is too big and that means this bill is unconstitutional.

The USSC sticks to the idiocy of the New Deal court, and the only plausible reason I can come up with is because so much would be set upside down were some of those opinions overturned. Economic expediency and the irrational demand that someone, anyone, needed to do something, anything, trumped the Constitution in the 1930's. No further evidence of this fact is needed beyond the supreme stupidity of Home Building & Loan Association v. Blaisdell where the USSC declared that, while the Constitution explicitly prohibited the states from altering contracts, that the states could, in fact, alter contracts. The Constitution became squishier every time the Court upheld the government's latest intrusion into the market and people's liberties. The panic of the Depression changed the momentum of constitutional jurisprudence, and the inertia that interpretation has gained since is nigh unstoppable. Just imagine the turmoil that would ensue if the USSC dared to declare that we are going to return to a federal government of few and enumerated powers.

This is not a case for the unconstitutionality of anything about the current healthcare reform bill, but a fundamental disagreement with quite a lot of the history of case law in the U.S. And it's fine that you have that opinion, but without undoing a LOT of established law, it doesn't make a case that the healthcare reform bill is unconstitutional.

In other words, your beef is less about this bill in particular than it is a basic disagreement with the way the Commerce Clause (or whatever) has been interpreted over the years.

(I would disagree with you on this point as well, pointing again to the "general welfare" clause. The framers of the Constitution did indeed envision the federal government having a role in the general welfare of the people.)

 

[JoeTheJuggler]

So far it seems to me that the "legal theory" being used here consists of screaming, ranting, and basically making crap up out of whole cloth in an attempt to 1) give the illusion of being relevant, and 2) keep the rightwing base whipped up into a frenzy.

You know, birther-type stuff

I would say Flaming Moe isn't doing any screaming or ranting or making stuff up.

But I also think he's not making a case for the unconstitutionality of the bills.

 

[JoeTheJuggler]

'Beyond the boundaries envisioned by the framers' does not equal 'Unconstitutional'.

Good point.

At any rate, I think the "general welfare" clause shows that they did in fact envision such a role for the government. If it doesn't mean Congress should deal with the current healthcare crisis, I'm not sure what it does mean.

 

[KingMerv00]

This is not a case for the unconstitutionality of anything about the current healthcare reform bill, but a fundamental disagreement with quite a lot of the history of case law in the U.S. And it's fine that you have that opinion, but without undoing a LOT of established law...

On a related note, where does the government get off making libel and slander illegal? It says right there in the constitution that there shall be no law restricting my freedom of speech.

Friggin' activists.

 

[TriskettheKid]

Which legal theory of states' rights are you using?

(He asks again and again and again.)

The Legal Theory of Somehow Government has Rights.

Or something. I don't know.

I always thought it took a special kind of reasoning to claim that a "state" has rights. I mean, the Government has granted powers, but not rights. Same with the States.

 

[TriskettheKid]

On a related note, where does the government get off making libel and slander illegal? It says right there in the constitution that there shall be no law restricting my freedom of speech.

Friggin' activists.

Not only that, but human sacrifice is illegal, too.

How am I supposed to freely practice my religion if I can't sacrifice a virgin to appease my volcano god?

 

[dudalb]

States with more political clout in Congress and the White House getting more funds for the same Federal programs then other states happens all the time. It might not be fair,but it is not unconstitutional.

 

[KingMerv00]

I always thought it took a special kind of reasoning to claim that a "state" has rights. I mean, the Government has granted powers, but not rights. Same with the States.

To be fair, "states' rights" is just a causal way to describe states' powers. I wouldn't read too much into it.

 

[TriskettheKid]

To be fair, "states' rights" is just a causal way to describe states' powers. I wouldn't read too much into it.

It can be.

I get wary once someone mentions a "violation" of "states' rights", though, for the aforementioned reasons.

 

[Bob Blaylock]

How is it even close to "kooky" to argue today's federal government expands so far beyond the boundaries envisioned by the framers of the Constitution…

'Beyond the boundaries envisioned by the framers' does not equal 'Unconstitutional'.

The framers intended the federal government to be very limited, and they included wording in the Constitution to this effect. I don't see how there can possibly be any argument that as far as the intended meaning of the Constitution is concerned, that the expansion of the federal government into the bloated, uncontrollable mess that it has now become is clearly a horrendous violation of the intended meaning of the Constitution. That various courts and politicians have found ways to twist and pervert the literal meaning of the words in the Constitution in order to allow these violations does nothing to address the blatant discrepancy between what has been done, and what the Constitution was clearly intended to allow.