Patterico's Pontifications

4/4/2010

The Health Care Lawsuits

Filed under: Health Care,Law — DRJ @ 6:45 pm



[Guest post by DRJ]

A number of lawsuits have been filed contesting ObamaCare, including a complaint filed in Virginia on March 23, 2010, by the Commonwealth of Virginia, a complaint filed by 13 states in Florida federal court on the same date, and a Liberty University complaint filed the following day. The complaints undoubtedly present a number of legal issues requiring voluminous briefs and memoranda, but a Houston Chronicle article suggests the ultimate result may hinge on limits on the Interstate Commerce Clause addressed in a 1995 Texas gun rights case:

“A Texas high school student’s decision to bring a .38-caliber handgun to school in 1992 could end up at the center of the legal fight over President Barack Obama’s health care reform plan.

Alfonso Lopez Jr.’s arrest at Edison High School in San Antonio set in motion a legal battle that may prove crucial to 13 state attorneys general fighting the new law.

Lopez, a senior when he was arrested for handgun possession in March 1992, ended up facing federal charges of violating the Gun-Free School Zones Act of 1990. But the Supreme Court, on a 5-4 vote, threw out his conviction five years later on the grounds that Congress exceeded its regulatory authority under the Constitution when it approved the 1990 law, which makes it a violation of federal law to possess a firearm in a school zone.”

The legal issue is the scope of Article I, Section 8, Clause 3 of the Constitution — the Interstate Commerce Clause — that authorizes the federal government “to regulate commerce” among the states:

“In filing a lawsuit last week challenging the new health care law’s mandate that everyone must have health insurance, the 13 state attorneys general — including Greg Abbott of Texas — cited the same legal reasoning that went into the Lopez ruling.

At issue in both cases is the Constitution’s commerce clause, which limits the regulatory powers of Congress to matters involving interstate commerce. In the Lopez decision, conservatives on the court led by then-Chief Justice William Rehnquist ruled that the 1990 gun law was unconstitutional because it had nothing to do with commerce between states.

Upholding the federal government’s right to control guns in school zones would give Congress “a general police power of the sort retained by the states,” Rehnquist wrote for the majority.

That’s almost exactly the argument the states are making now in a lawsuit filed March 23.”

The State complaints currently focus on U.S. vs Lopez, the 1995 Texas case, and U.S. vs Morrison, a Virginia case decided by the Supreme Court in 2000:

Abbott and the other 12 state attorneys general say that health care does not meet the legal definition of interstate commerce, rendering illegal the congressional mandate that all Americans must purchase health insurance.

“In the past 15 years the Supreme Court has scaled back Congress when they’ve tried to inject themselves into purely state matters,” said one of the 13, Michigan Attorney General Mike Cox, in an interview on MSNBC.

The Lopez ruling was one of two Cox cited, saying it was a case where the federal government “tried to criminalize purely state behavior within a state.”

Prior to the Lopez ruling [U.S. vs Lopez], the Supreme Court had for 60 years mostly followed the lead of Congress, ruling that congressional claims of regulatory power were valid under the Constitution. With the Lopez ruling, court watchers predicted a wholesale scaling back of such claims, clipping the wings of Congress to legislate in any area it wanted.

In the 2000 case of U.S. v. Morrison, the justices knocked down a provision of the Violence Against Women Act that gave victims of rape, domestic violence and other gender-motivated crimes the right to sue attackers in federal court. Rehnquist also authored the opinion.”

The lawsuits also object to the individual health care mandates on 10th Amendment grounds:

“Still, the attorneys general are hedging their legal bets. They also argue that the health care law’s insurance mandate for individuals violates the 10th Amendment, which states that powers not specifically delegated to Congress by the Constitution are “reserved to the states respectively, or to the people.”

However, it may be difficult to prevail since modern courts are often unwilling to sustain 10th Amendment and commerce clause challenges, and supporters claim health care is a federal matter:

“Critics of the lawsuit say the U.S. health care system is national in scope, transcending state lines, and that extending benefits to the uninsured is an economic activity that requires the participation of all in the insurance pool.

If Obama administration lawyers can establish a connection between the health care law’s goals and interstate commerce, the high court’s conservatives may be hard-pressed to rule against Congress, skeptics say.

“The courts are not supposed to overturn the will of the elected representatives of people; that is something that’s generally anathema to conservatives,” said Paul Rothstein, a law professor at Georgetown University. “Conservatives may not like the health care plan, but they don’t want to be put in a position of judicial activism, overturning what the people’s elected representatives put in place.”

I haven’t seen the Liberty University pleading so I can’t address it specifically, but it’s my understanding the plaintiffs (apparently the University and individual students) allege an adverse impact from ObamaCare — not only financial because Liberty is self-insured, but religious due to the abortion provisions. Courts may find it difficult to balance the legal interests involved.

Overall, my feeling is health care supporters will have a more difficult time defending the individual mandate than dealing with the commerce clause objections, but the ultimate results will undoubtedly make interesting law.

— DRJ

84 Responses to “The Health Care Lawsuits”

  1. I’m still anticipating a role for Roe v Wade as a vehicle for privacy in medicine.
    Once the government has clear standing as a bargaining partner at the table of medical decisions, the entire “privacy” underpinning of Roe will either stop them or Roe will be destroyed .. leaving the door open for a future socially conservative administration to outlaw abortion.

    Neo (7830e6)

  2. I have a hard time thinking of any example of something that is not within Congress’ power to regulate as interstate commerce, if this bill is considered to actually be constitutional under that clause.

    If this bill is ruled constitutional, then the Constitution would have been effectively amended to eliminate the entire scheme of limited, enumerated powers for Congress.

    SPQR (26be8b)

  3. That’s true, SPQR, and if it passes muster then I’d love to see the government require every family to buy a Chevy or Chrysler — if only because it would be fun to watch New York City residents who’ve never owned a car respond to being forced to buy, insure, maintain, fuel, and pay to park their government-mandated cars.

    DRJ (daa62a)

  4. Not to mention all those rapid transit states and cities face having to build more roads.

    DRJ (daa62a)

  5. I don’t think the Obami will have any trouble showing that health insurance is a form of interstate commerce.

    However, I don’t see how the mandate requiring everyone in the US to purchase medical insurance from a private party is constitutional. The mandate requires people who do not wish to so to participate in interstate commerce by purchasing an insurance policy.

    The Obami will answer back that if mandating the purchase of privately issued medical insurance is unconstitutional then we must have a government run health care plan. Either way we are screwed unless we vote these fools out of the Congress and the Presidency.

    Stu707 (0981d5)

  6. I wonder if people who exclaim that the Affordable Care Act is a ‘takeover of 1/6 of our economy’ will pause for a minute and think that they just made an argument for the affordable health care Act being a regulation of interstate commerce.

    imdw (7cc81b)

  7. Once again, imdw pretends not to understand the topic.

    SPQR (26be8b)

  8. “The Obami will answer back that if mandating the purchase of privately issued medical insurance is unconstitutional then we must have a government run health care plan.”

    There are several answers. The simplest is to just follow the basic logic of the health plan. The requirement of coverage of pre-existing conditions only works if you expand the risk pools. The risk pools are expanded by the mandate. Thus even if you don’t see how it is a regulation of commerce directly, it’s at least necessary and proper for another regulation of commerce: the requirement that pre-existing conditions be covered.

    “That’s true, SPQR, and if it passes muster then I’d love to see the government require every family to buy a Chevy or Chrysler”

    Its the ridiculousness of this that prevents it from being passed, not the constitutionality.

    imdw (7cc81b)

  9. Obtuse is on the loose.

    daleyrocks (718861)

  10. “… The simplest is to just follow the basic logic of the health plan….”

    You mean the health plan that was passed without people reading it? Even the legislators? The bill that has all kinds of special “easter eggs” that people didn’t expect? Would that be the logic you are describing?

    This is the single biggest proof of bizarre partisanship by people like this troll: how would they feel about a Republican bill passed under precisely these circumstances? You know, the “We have to pass the bill so you can see it,” and trying to make jokes about giving things about such a bill time.

    Eric Blair (ea0564)

  11. imdw, I suppose if Congress decided to takeover 100% of the economy the commerce clause would be a sufficient green light in your view. If so, I’m wondering at what point the concept of “enumerated powers” is relevant anymore — or, did you ever think it relevant?

    beer 'n pretzels (3d1d61)

  12. “The requirement of coverage of pre-existing conditions only works if you expand the risk pools.”

    imdw – One, the mandate does not have to be national to accomplish that. Individual states have experimented with it, such as Massachusetts, and received dismal results, so your premise is faulty. It can be done by individual states should the states choose that approach.

    Alternatively, separate pools could be created for people with preexisting conditions, similar to those which already exist for high risk drivers.

    The ObamaCare solution of a mandate is by no means the only mechanism to achieve the desired result.

    daleyrocks (718861)

  13. imdw:

    “That’s true, SPQR, and if it passes muster then I’d love to see the government require every family to buy a Chevy or Chrysler”

    Its the ridiculousness of this that prevents it from being passed, not the constitutionality.

    Apparently you think requiring Americans to buy Chevys and Chryslers would be constitutional under the commerce clause. Is there a difference between what government could do because it’s powerful, and what it’s authorized to do?

    DRJ (daa62a)

  14. imdw – Since the desired result on your part seems to be nationalized health care. perhaps the mandate is the only solution you are willing to consider.

    daleyrocks (718861)

  15. “You mean the health plan that was passed without people reading it?”

    Oh dear god.

    “Would that be the logic you are describing?”

    The logic is the same as romneycare, same as has been part of other proposals from right or left — cover pre-existing conditions, expand risk pools, control costs or provide subsidies to people who can’t afford the risk pool expansion. That’s the basic logic. Did you not know this? Not read it on any blogs?

    “This is the single biggest proof of bizarre partisanship by people like this troll: how would they feel about a Republican bill passed under precisely these circumstances? ”

    Like the bill that Hatch, Grassley and Bond proposed against Hillarycare? I’d feel pretty good that once we had that passed, we could implement even more health reforms. Just like this bill, it would contain a lot that I don’t like.

    So we get a nice post from DRJ citing Lopez and Morrisson. But why not Raich?

    imdw (ac98ba)

  16. DRJ – What they can do and what they are authorized to do are questions they do not ask of themselves. It is simply power politics – do they have the votes, and how far can we go with those votes.

    JD (e190da)

  17. The logic is the same as romneycare

    And how, exactly, has that turned out?

    JD (e190da)

  18. Nothing being exempt from this ridiculous interpretation of the commerce clause, the Constitution is a dead-letter to such liberals. There being no point to having these messy things called states which now have no powers but what Congress deigns to allow them, when will we see Congress abolish them?

    SPQR (26be8b)

  19. imdw – I think it’s pretty ridiculous to have the government force me to buy an insurance plan covering abortions, but I’m just silly that way. I don’t think I’ll ever need one, so why do I have to pay for the coverage?

    daleyrocks (718861)

  20. imdw,

    This isn’t a brief and given how long a brief on this would be, I know everyone is glad it isn’t. It would be more boring than a 17-minute Obama health care answer. But feel free to comment on other authorities, and please link them.

    DRJ (daa62a)

  21. “Apparently you think requiring Americans to buy Chevys and Chryslers would be constitutional under the commerce clause. ”

    I do not think that the commerce clause prohibits something this stupid. No. What prevents it from happening is just how dumb the idea is. Congress would not pass it. The founders gave us quite a system but they didn’t need to make sure that we never did anything this dumb.

    “The ObamaCare solution of a mandate is by no means the only mechanism to achieve the desired result.”

    I don’t think it needs to be the only mechanism. Nor do I think that just because a state can do it, it means the feds can’t. In order for a mandate to be overturned on the grounds you note — that there are other ways to do, but not in the exact same effect — it would require the courts to be making policy decisions as to what was the better way to have pre-existing conditions be covered. I think that’s more properly a political decision, not for the courts.

    imdw (ac98ba)

  22. I do not think that the commerce clause prohibits something this stupid.

    Thank you for this insta-classic.

    JD (e190da)

  23. #7 SPQR:

    Once again, imdw pretends not to understand the topic.

    I have my doubts about its “pretending.” Its misunderstanding of basic concepts is real enough.

    EW1(SG) (edc268)

  24. “This isn’t a brief and given how long a brief on this would be, I know everyone is glad it isn’t. ”

    Oh I don’t think a brief on this would have to be very long. But it would have to deal with Raich. I don’t see how one can talk about what it “may hinge on” and avoid that one.

    “It would be more boring than a 17-minute Obama health care answer.”

    Did you listen to the whole answer? I haven’t, but I’ve seen this line on a few wingnut blogs. It’s amusing right? The president, so booooring. Talking without a teleprompter.

    imdw (0069f8)

  25. “And how, exactly, has that turned out?”

    Massachussets just had a revolt and elected a supporter.

    imdw (e66d8d)

  26. Racist wingnutz !!!!!!!!!

    JD (e190da)

  27. “You mean the health plan that was passed without people reading it?”

    Oh dear god.

    Indeed. Once again, I am amused by trolls unaware of the irony of their own words.

    Eric Blair (ea0564)

  28. I also enjoy it when trolls sling the term “wingnut” around. It makes it perfectly okay to call those trolls whatever one likes.

    Eric Blair (ea0564)

  29. “The requirement of coverage of pre-existing conditions only works if you expand the risk pools.”

    imdw – The above was your starting statement. I showed that your premise was false. Accept it.

    daleyrocks (718861)

  30. “imdw – The above was your starting statement. I showed that your premise was false. Accept it.”

    What you did was show that there are other policy options which may achieve the goals of having some coverage for people with pre-existing conditions. Which would not be the same as the result of this legislation. The effect this has on lawsuits? None, because in order for it to have an effect we would have to have the courts substituting their judgment for the policy judgment made by the elected branches. And that would be like… soooo activist.

    imdw (2c804b)

  31. Apparently you think requiring Americans to buy Chevys and Chryslers would be constitutional under the commerce clause.

    C’mon, DRJ, you know you’re overreaching on that one. They didn’t require that, they just passed a 100% sales tax on Fords. It’s at footnote 1.A.i. from page 1,973, paragraph 2 of the reconciliation package, right after the $100,000,000 grant to Occidental College.

    MD in Philly (59a3ad)

  32. daleyrocks – You know better than to waste your breath with a dishonest disingenuous asshat like this one is.

    JD (e190da)

  33. imdw:

    Did you listen to the whole answer?

    Not only did I listen to it here and here and here, I also read it here. Enjoy.

    DRJ (daa62a)

  34. daleyrocks: it’s just like our recent troll with some, um, unusual viewpoints on polls, and even stranger definitions of “rock solid” support. The trolls aren’t posting to debate, but to contradict. Facts don’t matter. Taking the opposite side of an issue is all that matters.

    Eric Blair (ea0564)

  35. By the way, imdw, the link to an MSNBC transcript breaks Obama’s statements down into sentences. However, when he was speaking, the answer was mostly run-on sentences.

    DRJ (daa62a)

  36. I’ll bet you serious coinage, DRJ, that you have spent more time listening to and reading the POTUS’s commentary than The Cheerleader has. He just knows things, does The Cheerleader.

    Eric Blair (ea0564)

  37. ” Not only did I listen to it here and here and here, I also read it here. Enjoy.”

    Wow at first I thought you found it so boring you listened to it 3 times. But you really found this boring? I mean you blog about politics, and here have a post about lawsuits and health policy and you found this answer from the president were he makes the case for the health reform bill boring? That’s kind of weird, don’t you think? That you find the justifications and explanations for major policy initiatives boring.

    Back to the health care lawsuits, ever read Mccullough vs Maryland? I warn you, you might be bored.

    imdw (017d51)

  38. It’s all boring compared to watching sports or doing something outside or reading a good book, but I force myself.

    DRJ (daa62a)

  39. “It’s all boring compared to watching sports or doing something outside or reading a good book, but I force myself.”

    Maybe you’ve got the wrong hobby.

    If you find MCCullough v. Maryland to be too dense, you can start with just the syllabus, or just its wikipedia page. You might not like what they have to say, but that may just be what gets you interested in the actual opinion. Who knows, you might learn some of the logic behind the constitution, and why the 10th amendment is written the way it is.

    imdw (5f60be)

  40. As I said, obtuse is on the loose.

    daleyrocks (718861)

  41. Being an insulting little pr*ck towards DRJ is a pretty lousy thing to do, dimwit. She is kind enough to actually attempt to engage you in a real discussion, as pointless as that may be.

    JD (e190da)

  42. You’ll even find in that 1819 opinion something pointing out that this isn’t quite an accurate description of the 10th amendment:

    “which states that powers not specifically delegated to Congress by the Constitution are “reserved to the states respectively, or to the people.””

    Because the word “specifically” is not in the 10th amendment. I’m sure the suspense of how the Marshall court explained that one is just killing you.

    imdw (7cc81b)

  43. imdw – That was a pretty cheap shot. Prolly too much Easter sherry.

    JD – How did those Easter microwave peeps turn out this year?

    daleyrocks (718861)

  44. The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

    JD (e190da)

  45. They did not melt as much this time, daley. Prolly because I did not put an entire box in this time.

    JD (e190da)

  46. “Being an insulting little pr*ck towards DRJ is a pretty lousy thing to do, dimwit. She is kind enough to actually attempt to engage you in a real discussion, as pointless as that may be.”

    Insulting? I think most people would find McCullough v. Maryland too dense to just dive in to. Have a look if you disbelieve me.

    imdw (0069f8)

  47. Oh, imdw: must you be so obviously a partisan troll? You really are just a cheerleader, reflexively shaking your pom-poms.

    And snarking toward or insulting DRJ is one of those very rewarding hobbies, I think you will find. It has really helped trolls out when they have done it in the past.

    Given your history of blatant dishonesty and impenetrable partisanship, I would strongly urge you take a break. You insult or snark at people like me or JD or daley, fine. DRJ? Not so much.

    True, she doesn’t need me to defend her. But I ask you: what do you bring to this blog, and what does she bring?

    You need a time-out, little cheerleader.

    Eric Blair (ea0564)

  48. That’s good JD, you can look up the constitution. Now here’s an interesting little bit from Justice Marshall:

    [T]here is no phrase in the instrument which, like the Articles of Confederation, excludes incidental or implied powers and which requires that everything granted shall be expressly and minutely described. Even the 10th Amendment, which was framed for the purpose of quieting the excessive jealousies which had been excited, omits the word “expressly,” and declares only that the powers “not delegated to the United States, nor prohibited to the States, are reserved to the States or to the people,” thus leaving the question whether the particular power which may become the subject of contest has been delegated to the one Government, or prohibited to the other, to depend on a fair construction of the whole instrument. The men who drew and adopted this amendment had experienced the embarrassments resulting from the insertion of this word in the Articles of Confederation, and probably omitted it to avoid those embarrassments. A Constitution, to contain an accurate detail of all the subdivisions of which its great powers will admit, and of all the means by which they may be carried into execution, would partake of the prolixity of a legal code, and could scarcely be embraced by the human mind. It would probably never be understood by the public. Its nature, therefore, requires that only its great outlines should be marked, its important objects designated, and the minor ingredients which compose those objects be deduced from the nature of the objects themselves. That this idea was entertained by the framers of the American Constitution is not only to be inferred from the nature of the instrument, but from the language. Why else were some of the limitations found in the 9th section of the 1st article introduced? It is also in some degree warranted by their having omitted to use any restrictive term which might prevent its receiving a fair and just interpretation. In considering this question, then, we must never forget that it is a Constitution we are expounding.

    That last sentence is a famous one.

    imdw (0069f8)

  49. “If you find MCCullough v. Maryland to be too dense, you can start with just the syllabus, or just its wikipedia page. You might not like what they have to say, but that may just be what gets you interested in the actual opinion. Who knows, you might learn some of the logic behind the constitution, and why the 10th amendment is written the way it is.”

    imdw – Not many of us can pretend to be the intellectual titan you pretend to be and fail so miserably at it day in and out and come back for more.

    daleyrocks (718861)

  50. imdw:

    Because the word “specifically” is not in the 10th amendment. I’m sure the suspense of how the Marshall court explained that one is just killing you.

    Thanks for the tip, although your beef is with the Houston Chronicle reporter since that’s where your quote comes from.

    DRJ (daa62a)

  51. And….a wall o’ text from Teh Cheerleader!

    Time to apologize to DRJ, trolly. Don’t you think?

    Oh, that’s right: you don’t. You just shake your pom-poms.

    Eric Blair (ea0564)

  52. BAM!

    Down goes imdw.

    daleyrocks (718861)

  53. Well, daley, didn’t imdw once say how much admired Joe Biden? Thus, a little plagiarism isn’t a surprise?

    Eric Blair (ea0564)

  54. “And….a wall o’ text from Teh Cheerleader!”

    I warned you it was dense. But I promise if you wade it into it, you will be rewarded with a richer understanding of our constitution.

    imdw (0069f8)

  55. Well, something was dense. But isn’t your cut and paste job.

    Eric Blair (ea0564)

  56. “Well, daley, didn’t imdw once say how much admired Joe Biden? Thus, a little plagiarism isn’t a surprise?”

    Plagiarism? It’s a quote from a supreme court opinion. Are you sure you’re following what’s going on here?

    imdw (1e05d1)

  57. Oh, and please comment, imdw, on your Houston Chronicle connection? I’m curious if you just lifted it. Sort of a Joe Biden thing.

    Eric Blair (ea0564)

  58. “Oh, and please comment, imdw, on your Houston Chronicle connection? I’m curious if you just lifted it”

    Lifted what? The part of DRJ’s post I quoted, where she quotes the Chronicle? Or the supreme court opinion I quoted?

    imdw (66f2a5)

  59. You really are funny. By which I do not mean humorous.

    Eric Blair (ea0564)

  60. You saw me quoting a piece of this post — with quotation marks — and address it, and you thought ‘plagiarism.’ Really hilarious. You thought I was passing off as my own work what I was actually quoting and responding to. Too much.

    imdw (66f2a5)

  61. Um. You really aren’t fooling people. You thought you were all clever, got caught, and are now trying to act all snide.

    Epic fail. Poseur and troll. And not a particularly good troll.

    Except with mad cut and paste skillz.

    Say goodnight, Gracie. And you still haven’t apologized to DRJ, which would be the elegant thing to do. But that’s you: inelegant.

    Eric Blair (ea0564)

  62. “Um. You really aren’t fooling people. You thought you were all clever, got caught, and are now trying to act all snide. ”

    Um, I quoted part of this post. What are you not understanding here?

    “Except with mad cut and paste skillz.”

    Yes indeed. I think its sort of polite to paste what you’re replying to.

    imdw (ab8f2d)

  63. It’s also polite to apologize when you are a jerk toward someone who has invariably been polite to you—despite your own actions and insults. You are the fellow or lady who likes to write “wingnut” all the time, correct?

    I don’t think you get to use the word “polite,” imdw. Or you should be ashamed to use it.

    Eric Blair (ea0564)

  64. Digging deeper and deeper.

    daleyrocks (718861)

  65. imdw,

    I’m not a Constitutional scholar but here’s my understanding of M’Culloch vs Maryland: It authorizes Congress to use implied powers to implement express federal powers. Specifically, the M’Culloch Court recognized Congress’ power to establish a national bank as a necessary and proper means to accomplish its express powers “to lay and collect taxes; to borrow money; to regulate commerce; to declare and conduct a war; and to raise and support armies and navies.”

    The first issue before the Court was whether Congress was limited by the express powers of the Constitution. If so, Congress could not create a national bank since the Constitution does not speak to the creation of banks:

    Although, among the enumerated powers of government, we do not find the word ‘bank’ or ‘incorporation,’ we find the great powers, to lay and collect taxes; to borrow money; to regulate commerce; to declare and conduct a war; and to raise and support armies and navies. The sword and the purse, all the external relations, and no inconsiderable portion of the industry of the nation, are intrusted to its government. It can never be pretended, [17 U.S. 316, 408] that these vast powers draw after them others of inferior importance, merely because they are inferior. Such an idea can never be advanced. But it may with great reason be contended, that a government, intrusted with such ample powers, on the due execution of which the happiness and prosperity of the nation so vitally depends, must also be intrusted with ample means for their execution. The power being given, it is the interest of the nation to facilitate its execution.”

    Thus, Justice Marshall held that the Constitution would not create a power, such as to regulate commerce or raise and support the armies and navies, without giving Congress the power to implement those goals. As a result, Marshall held that Congress has implied powers to implement its express constitutional powers.

    However, Congress only has such implied powers as are “necessary and proper” to implement the express powers:

    “Congress is not empowered by it to make all laws, which may have relation to the powers confered on the government, but such only as may be ‘necessary and proper’ for carrying them into execution. The word ‘necessary’ is considered as controlling the whole sentence, and as limiting the right to pass laws for the execution of the granted powers, to such as are indispensable, and without which the power would be nugatory. That it excludes the choice of means, and leaves to congress, in each case, that only which is most direct and simple.

    Is it true, that this is the sense in which the word ‘necessary’ is always used? Does it always import an absolute physical necessity, so strong, that one thing to which another may be termed necessary, cannot exist without that other? We think it does not. If reference be had to its use, in the common affairs of the world, or in approved authors, we find that it frequently imports no more than that one thing is convenient, or useful, or essential to another. To employ the means necessary to an end, is generally understood as employing any means calculated to [17 U.S. 316, 414] produce the end, and not as being confined to those single means, without which the end would be entirely unattainable.”

    Therefore, for an act to be constitutional, it must be a “necessary and proper” means to implement an express federal power. Because the federal government has the express power to “to lay and collect taxes; to borrow money; to regulate commerce; to declare and conduct a war; and to raise and support armies and navies,” the M’Culloch Court held the establishment of a national public bank was a “necessary and proper” method to facilitate those federal goals. However, the method Congress uses to implement an express power does not have to be the only means available or even what some might consider the best means.

    If M’Culloch is our sole guide in deciding ObamaCare, then the first question would be “Is the creation of a mandatory federal health care insurance system within the scope of Congress’ power to regulate commerce?” If the answer is “Yes,” the second question would be “Is this legislation a necessary and proper exercise of that power?” I think the Court’s answer to the first question should be “No.” If it isn’t, the answer to the second question might be “Yes” because courts generally refrain from telling Congress how to accomplish otherwise constitutional goals.

    DRJ (daa62a)

  66. “Conservatives may not like the health care plan, but they don’t want to be put in a position of judicial activism, overturning what the people’s elected representatives put in place.”

    I’m seeing this particular bit of sophistry a lot lately, leading me to wonder which lefty blog/pundit promulgated it. As is so often the case, it clearly demonstrates that they just don’t get it. They think by parroting the Right’s arguments, they can reframe the debate. But no right-winger considers it “activist” for the courts to strike down unconstitutional legislation.

    It’s one thing for ignorant Internet commenters to regurgitate this drivel without understanding why it’s nonsensical. G-town professors of law must be presumed to know that “judicial activism” is a complaint about legislating from the bench, not keeping the legislature within the bounds of the Constitution.

    Dodd (d8078d)

  67. DRJ, given imdw’s history of trying to get other people to look things up, reason carefully, and so forth…while doing very little of that him or herself…I can only suggest that your post was the very definition of, hmmm, let me think. Oh yeah.

    Pearls before swine.

    At least many of us read and appreciated your thoughts. Trolls, not so much.

    Eric Blair (ea0564)

  68. Thanks, Eric. It’s never a waste of my time to read case law but I admit I don’t do it as much as I used to. Think of it as a jumping-off point for further discussion. I hope Beldar will weigh in. He has far more experience in federal Constitutional matters than I do.

    DRJ (daa62a)

  69. Mandating that you must buy a certain type of product falls within the parameters of “regulation of commerce . . . among the several states”? Since when?

    When has the federal government EVER mandated that ALL Americans MUST purchase a specific type of product sold by non-government businesses?

    Liberals chided President Bush for encouraging Americans to go shopping, for the sake of helping to stimulate the economy in the wake of 9-11.

    Oh for those innocent days of yesteryear!

    Icy Texan (241fa2)

  70. Nutriphysics is the way to achieve a healthier America.

    Good Health To You (314568)

  71. “I think the Court’s answer to the first question should be “No.””

    Oh. And here I thought this was the easiest part of all. Of course congress can make regulations on the health insurance companies. That’s why we have things like HIPAA. Why we’ll have things like coverage of pre-existing conditions. As I laid out quite early in post 8, the simplest is to just look at the mandate as necessary and proper to achieve these ends. Of course that doesn’t mean you cant make the argument that the mandate is itself a regulation of commerce.

    But you see how rewarding it is. Now you understand why tenthers are likely to go nowhere, and you’re much less likely to take their bullshit.

    imdw (9af31a)

  72. Doesn’t our new health care law specifically cite that it is illegal to purchase health care outside of your State of residence?

    So if inter State commerce is specifically barred, how is this legal under the Interstate Commerce clause?

    Hoist on their own petard, they are.

    NavyspyII (df615d)

  73. If you review the debates over the commerce clause when the Constitution was being formulated, the concern was that one state would levy unacceptable taxes/tariffs against another state, thus inhibiting commerce “between the several states”. It was to this end that the federal government was to serve as arbiter to “regulate commerce” — not dictate commerce.

    Citizen: “Mr. Jefferson, what have you given us?”

    Thomas Jefferson: “A republic, if you can keep it.”

    Do you feel it slipping away?

    navyvet (8e1431)

  74. And here I thought that was a Franklin line.

    imdw (241c75)

  75. Dodd – To the leftists, judicial activism is a ruling they do not agree with. Since their use of language is not tether to anything remotely approaching reality, they can make such statements without their heads assploding from the cognitive dissonance.

    JD (959071)

  76. annoying, meanspirited, and unnecessary dross

    Whether from Franklin or Jefferson, the point is valid and more consequential than getting the right attribution. Who knows, Maybe Franklin stole it from Jefferson who stole it from Washington’s personal secretary who earlier received the question at breakfast from a server at the City Tavern….

    Some people earn respect and deference, even if a mistake is made, other people warrant no respect even when they are correct.

    MD in Philly (59a3ad)

  77. It is amusing to see that individual—with his or her long term commitment to accuracy (!)—trying to correct others.

    Eric Blair (c8876d)

  78. I am curious as to what kind of hook US vs Lopez actually provides to attack from a Commerce Clause perspective. It DID NOT squelch the Gun Free School Zone Act — Congress simply passed it again, this time with the magic words [concerning a firearm] “…that has moved in or that otherwise affects interstate commmerce…” and PRESTO! Instant Constitutionality! There have been numerous successful prosecutions under the GFSZA, and numerous unsuccessful appeals of those prosecutions to the Circuit Courts. Many of them again argued over-reaching by Congress, but none of the Circuit Courts of Appeals bought those arguments that I know of — because of the “magic words.” All Congress has to do is asssert that the subject matter affects interstate commerce, and the Courts roll over.

    The Health Care Deform is repulsive from several angles ranging from its actual content (whatever that may be!) to the way it was passed. But to expect SCOTUS to reign in Congress seems a bit of a stretch. Worth a try and I hope they win, but seems a long shot to me.

    Eric (32f5db)

  79. Lopez is a hook in the same way ignoring Raich is a hook: it’s all they got.

    imdw (abf08a)

  80. #79: and the unintended irony continues. “All they goal” indeed.

    Eric Blair (cfbd15)

  81. Typo—“got” not “goal.”. But it still works.

    Eric Blair (cfbd15)

  82. So would this be an example of “Muphry’s law”?

    imdw (7c85b9)

  83. And again. The self-examined life is a good path.

    Eric Blair (c0f818)

  84. Like I say, this law, as it is revealed, guarantees endless litigation. I would dare to say it will never be implemented. Because it is contradictory, vague, and unenforceable.

    Patricia (fa8e06)


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