Patterico's Pontifications

12/14/2010

Is the Mandate Necessary and Proper to Carry Obamacare into Execution?

Filed under: General — Aaron Worthing @ 1:05 pm

[Guest post by Aaron Worthing; if you have tips, please send them here.]

Strap yourselves in, kiddies, because this is going to be a long one.

One issue I glossed over, and I shouldn’t have, in analyzing Judge Hudson’s Obamacare ruling yesterday is the application of the necessary and proper clause, which is cynically referred to as the elastic clause, because in the minds of many observers, it can be stretched to reach anything.  As you know, the Federal Government is denied every power not granted.  Most of those grants of power are found in Article I, Section 8, and the last of those grants of power, the necessary and proper clause, reads as follows:

Congress shall have Power… To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.

In other words, Congress has the power to carry out its other powers.  Indeed, the classic explanation of this clause’s meaning is contained in McCulloch v. Maryland and is so often quoted it practically feels like it is in the constitution:

Let the end be legitimate, let it be within the scope of the Constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the Constitution, are Constitutional.

This means that so long as it doesn’t violate any other part of the constitution, Congress can do things not specifically authorized, in order to accomplish certain goals.  So,  even if the mandate is not itself something that congress can do under the commerce clause, some part of this bill is clearly constitutional, and thus the mandate is necessary and proper to carry out the parts that are constitutional.  Or so the argument goes.

And let me pause and say something about the meaning of words, here.  Like it or not, John Marshall’s opinion in McCulloch declared that “necessary” is not the same as “absolutely necessary” and thus he defines the term down to mean, more or less, useful.  Feel free to disagree with that interpretation but it is how it has been for over two hundred years and it’s not likely to change anytime soon.

Moving on, Orin Kerr says that Judge Hudson got the application of the clause wrong, writing:

I’ve had a chance to read Judge Hudson’s opinion, and it seems to me it has a fairly obvious and quite significant error. Judge Hudson assumes that the power granted to Congress by the Necessary and Proper Clause — “To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers” — does not expand Congress’s power beyond the Commerce Clause itself.

He then quotes this passage from the opinion as “key” to the reasoning:

If a person’s decision not to purchase health insurance at a particular point in time does not constitute the type of economic activity subject to regulation under the Commerce Clause, then logically an attempt to enforce such provision under the Necessary and Proper Clause is equally offensive to the Constitution.

So, Kerr’s reasoning goes, the judge failed to understand that the Necessary and Proper Clause could reach beyond the bounds of the commerce clause.  And then Kerr believes that the Necessary and Proper argument is “straightforward” from there.  If Kerr has  articulated his reasoning, I haven’t seen it.   But, on the surface, there is some appeal to using the Necessary and Proper Clause.  As I have said, and the Feds have argued, if the mandate is struck down and the rule on pre-existing conditions and similar provisions are retained, then this would implode the health insurance business.  So that seems kind of necessary, right?  But we will see in a moment, that isn’t enough.

Anyway, the first problem with Kerr’s argument is the judge’s style of writing.  Almost 90% of the opinion is just presenting the arguments of both sides.  There is very little reasoning by the judge that is presented as the judge’s own.  You suspect he is agreeing with much of what is being said, but he doesn’t clearly identify what he is merely restating and what he is agreeing with.  That passage, which Kerr marks as key, is actually in the middle of a discussion of Cuccinelli’s argument, not the court’s reasoning.  The only actual reasoning is found in this frustratingly vague passage:

Because an individual’s personal decision to purchase-or decline to purchase health insurance from a private provider is beyond the historical reach of the Commerce Clause, the Necessary and Proper Clause does not provide a safe sanctuary. This clause grants Congress broad authority to pass laws in furtherance of its constitutionally enumerated powers. This authority may only be constitutionally deployed when tethered to a lawful exercise of an enumerated power. As Chief Justice Marshall noted in McCulloch, it must be within “the letter and spirit of the constitution.” The Minimum Essential Coverage Provision is neither within the letter nor the spirit of the Constitution. Therefore, the Necessary and Proper Clause may not be employed to implement this affirmative duty to engage in private commerce.

So it’s not quite clear that he is saying what Kerr thinks he is saying, in part because it is not clear what he is saying.  For instance, fellow “conspirator” Jonathan Adler argues that what Hudson actually is doing is imitating the reasoning Scalia offered in a concurrence.  That is interesting as a theory, but I think the better point is to say this.

The correct reason why the necessary and proper clause will not avail the government requires us to look at that constitutional language again: “To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers” (emphasis added).  In other words it is not just a power to do something that is generally “necessary and proper,” but only to “carry[] into Execution” a valid exercise of congressional power.  And this requirement is core to the reasoning in McCulloch v. Maryland.  In that opinion, the court famously said that “we must never forget that it is a Constitution we are expounding.”  And what the court meant by that is revealed in this passage:

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.

In other words, it is not possible as a practical matter to list every means by which the Congress can carry out its power to coin money, raise armies, etc.  They would never remember to specifically authorize everything that must be allowed, and the result would balloon our constitution into looking like… well, the Obamacare law, really.  A monstrosity of over 2,000 pages and incomprehensible to almost everyone.  Which creates an additional problem then of obtaining the consent of the people to ratify the constitution, given that they will have no way of comprehending what the hell they are voting on.

So, instead the constitution sets out certain goals that the government may pursue and may not pursue.  Now let’s consider that famous passage from McCulloch again:

Let the end be legitimate, let it be within the scope of the Constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the Constitution, are Constitutional.

So if a goal is allowed, then Congress can use just about any means not banned by the constitution to pursue that goal.  And the converse is true, too.  That is, if the goal is prohibited to congress, then congress cannot pursue it by any means.  So if you have a right to bear arms, Congress can’t say, “sure, you have a right to bear arms.  But we are going to put a tax of one hundred dollars on each bullet.”  That would be unconstitutional (at least at the current value of the dollar).

So the point is that for the mandate to pass muster under the necessary and proper clause, it must be needed to bring the law into execution.

But as correctly pointed out in this amicus in the Florida suit, this law isn’t necessary to execute the law.  Rather, it is necessary to reduce the ill effects of the law:

In short, the Individual Mandate is not necessary for implementation or enforcement of the PPACA’s insurance industry reforms. Instead, Defendants claim that the Mandate is “essential” to avoid the consequences of those reforms: bad incentives, higher premiums, and ultimately the “extinction” of the insurance industry.

So that is Kerr’s and the government’s big mistake.  Its not that it is generally necessary, but it must be necessary to carry the law into execution.  And the mandate is not related to executing Obamacare at all.

Now is that what Judge Hudson is saying in his opinion?  Well, there is a passage that suggests he gets it, where he writes:

More recently, in restating the limitations on the scope of the Necessary and Proper Clause, the Supreme Court defined the relevant inquiry, “we look to see whether the statute constitutes a means that is rationally related to the implementation of a constitutionally enumerated power.”

But like the passage cited by Kerr, that is actually from Cuccinelli’s argument, and it’s not clear that the judge agrees with or adopts it.  So the judge is not mistaken as to result, and maybe he even got to the right result by the right reasoning.  But his opinion provides poor evidence of what is actually going on in the court’s mind.  And while the phrase necessary and proper has become far more permissive than you and I might have believed that the framers understood the terms and the courts are extremely deferential in the choice of means by which congress pursues the goals that it is allowed to pursue, it cannot be reasonably argued that the mandate is necessary or proper to bring the other provisions into execution.  It might be necessary to avoid economic disaster, but that is a different subject entirely.  If Congress could create a problem, and then cite the necessary and proper clause in order to justify any measure to fix it, that would be the end of limited government.

——————-

And that is assuming that this necessary and proper analysis doesn’t trip on anything else.  Let’s re-read that passage in McCulloch, again:

Let the end be legitimate, let it be within the scope of the Constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the Constitution, are Constitutional.

(emphasis added).  In other words, if the constitution specifically prohibits the Congress from using a particular means to accomplish its goals, then the necessary and proper clause will not override that portion of the constitution.  Indeed, legal historians argue that this is part of the function of the word “proper.”  And it only makes sense.  You can’t suspend the first amendment in order to carry out the regulation of interstate commerce, for instance.

So are there any specific limitations on this power?  I have argued there is a first amendment right to boycott companies you don’t like that this law directly infringes.  And there is an obscure case you might have heard of that might present a problem for the mandate.  It’s called Roe v. Wade.  Now, this is an argument you don’t hear conservatives raising, but what is the basis of the decision in Roe?  If it is anything but judicial fiat, then Roe has to be understood as an extreme application of the right to control your medical destiny.  While Roe is an extreme application of this principle, by comparison having the right to buy or not buy health insurance, seems to be peanuts.  And thus even if necessary, this law would not be proper, at least under the precedents that have upheld Roe.

[Posted and authored by Aaron Worthing.]

69 Responses to “Is the Mandate Necessary and Proper to Carry Obamacare into Execution?”

  1. Legal Insurrection talked about this issue today also.

    he got to the same place you did, but a whole lot faster.

    redc1c4 (fb8750)

  2. red

    i saw his post, and even commented on it, but his argument is different. his argument is that if this allowed, what “can’t congress do?”

    mine is that the language of the provision itself limits itself.

    Aaron Worthing (e7d72e)

  3. I thought it was a great analysis of what ‘necessary’ entails, and yeah, I thought Legal Insurrection had a good discussion of it as well, though he didn’t take the argument past the excellent point of ‘this is absurd’ ‘where do we draw the line’ etc.

    I like the point about Roe. It’s true, if privacy in your medical choices is ‘implicit to the concept of ordered liberty’, then Obamacare is unconstitutional for fining me for what choices I make about my health care.

    The Constitution can be interpreted all over the place. And I think Aaron’s shown it started getting off track very early on. “Necessary” is a strong term meant to limit most activity.

    But regardless, the Constitution is meant to limit the Federal Government, and time after time, the Commerce Clause has taken on drastically more power. Raich, Wickard… these are amendments to our Constitution, under the guise of Court rulings.

    This case is absurd.

    They aren’t regulating state commerce. They are creating commerce… forcing commerce that didn’t exist.

    Dustin (b54cdc)

  4. My reading of the opinion is that Judge Hudson conflated the Necessary and Proper Clause with the Commerce Clause, and in doing so, ran afoul of McColloch and a couple hundred years precedent.

    What he should have done is do a separate “Necessary and Proper” analysis, much as AW has done.

    But no analysis would be complete without keeping in mind what Alexander Hamilton wrote about when discussing this clause, to wit, it is designed:

    to guard against all cavilling refinements in those who might hereafter feel a disposition to curtail and evade the legitimate authorities of the Union

    Federalist 33

    This is precisely what the mandate does. In fact, it serves no other function than that. This is what makes it necessary and proper. For as AW and others have said, you can’t have the (constitutional) “no pre-existing condition” ban unless you have the mandate. Therefore, the mandate is necessary and property to the execution of that part (and other parts) of the Affordable Health Act.

    So the point is that for the mandate to pass muster under the necessary and proper clause, it must be needed to bring the law into execution.

    Well, that’s an uphill argument. For decades, the federal government has created criminal laws, despite the fact that it has no constitutionally-granted “police power”. The laws are typically held as constitutional under the Necessary and Proper Clause.

    In other words, let’s agree that Congress can ban child pornography (under the Commerce Clause). And let’s say they do, and they include a provision which makes it possible to arrest and incarcerate child pornographers. Is that part constitutional? Is that incarceration — to paraphrase your words — “needed to bring the child porn ban into execution”?

    I would argue that incarcerating child pornographers is not necessary for the execution of a law banning child porn. But it’s necessary (and proper) for the objectives of that law. Put another way, it makes sense.

    And that is how the Supreme Court has always interpreted Necessary and Proper, even as late as this year in U.S. v. Comstock. It is much much broader than “must be needed to bring the law into execution.” The N&P Clause extends to laws that are “convenient” or “useful” or “conducive” to the enumerated power’s beneficial execution.

    Kman (d30fc3)

  5. I’ll dispense with the usual counter-analysis. I think I’ve proven Kman a liar three times now.

    In the first couple of paragraphs, it’s already clear Kman is lying to claim he read what he’s summarizing.

    Let’s all ignore him again.

    If someone would like to raise points somewhat similar to Kman’s, but honestly, I would enjoy discussing them. But Kman is impossible to debate against because he just makes up crap and refuses to read anything he disagrees with, leading to constant corrections.

    Dustin (b54cdc)

  6. As an uninitiate I find your reasoning clear and sound.

    No way it gets by Roberts, et al., and Kennedy will tag along for a 5-4 majority.

    gary gulrud (790d43)

  7. i was more referring to my atten…. SHINEY!

    redc1c4 (fb8750)

  8. Dustin

    I will say one thing in defense of Marshall watering down the term “necessary.” there is another part of the constitution, where the term “absolutely necessary” appears. so linguistically he is right to say it can’t mean absolutely necessary. but to turn it into things like “useful” is a bit much. there should be a bit of necessity in the word “necessary.”

    Aaron Worthing (e7d72e)

  9. so linguistically he is right to say it can’t mean absolutely necessary.

    OK. That’s a legit rebuttal of my view.

    Damn.

    Dustin (b54cdc)

  10. “Economic disaster” could be avoided by other means, such as declaring that those who opt not to purchase health insurance, and who subsequently fail to pay for care received, are indebted to the Federal government for certain set fees. These debts are then turned over to the IRS to collect…

    Problem solved.

    Kevin M (298030)

  11. KMAN wrote, “This is precisely what the mandate does. In fact, it serves no other function than that. This is what makes it necessary and proper. For as AW and others have said, you can’t have the (constitutional) “no pre-existing condition” ban unless you have the mandate. Therefore, the mandate is necessary and property to the execution of that part (and other parts) of the Affordable Health Act.”
    To have the ban on excluding pre-existing conditions there arises the need to pay for it. However, the mandate, even if considered “necessary,” is by no means “proper.”

    Ira (28a423)

  12. The only things they can LEGALLY do is to pass a law which required insurance companies selling insurance ACROSS STATE LINES to cover anyone (even free of charge) or to force insurance companies to accept people with pre-existing conditions. Those are stupid things to do, the sort of crap liberals love to do, but it wouldn’t be illegal.

    Anything else, including forcing me to subsidize other people’s healthcare or forcing me to buy health insurance, is totally illegal. They have no enumerated power to do those things, any more than they have enumerated powers to create a national life insurance program (that no rational person would sign up for…if they had a choice) and force people to pay for it and be part of it.

    Unfortunately the feds are so powerful at this point, there’s not much we can do about it when they decidde to enact unconstitutional crap (like Social Security or Obambicare or the Draft or whatever the current idiocy is)…short of armed revolution, and I don’t think too many people are ready for that.

    And, even if we were ready, we’ve stupidly let the federal government become a gigantic monster with the most powerful standing military in the history of the world (exactly what the smart founders warned us against doing), so we’d probably get smashed if we revolted against the ever more gigantic and tyrannical government.

    Dave Surls (e03429)

  13. The key to Lash’s comment, which says what I’ve been saying but of course better, is:

    If upholding the individual insurance mandate required an interpretation of federal power that removed all serious limits on federal authority, then such an interpretation could not be correct under a Constitution of limited federal power. According to Hudson, “the same reasoning,” which supported the mandate “could apply to transportation, housing, or nutritional decisions. This broad definition of the economic activity subject to congressional regulation lacks logical limitation.” Any interpretation of federal power that has no logical limit cannot be correct, regardless of the textual source of such power. As Hudson puts it, [the Necessary and Proper Clause] is not unbridled.”

    SPQR (26be8b)

  14. “As Hudson puts it, [the Necessary and Proper Clause] is not unbridled.”

    SPQR – Except in the liberal mind, of course.

    daleyrocks (c07dfa)

  15. “…sure, you have a right to bear arms. But we are going to put a tax of one hundred dollars on each bullet…”

    So, you’re saying that (in your opinion) the National Firearms Act of 1934 is unconstitutional since it regulates firearms by taxing them?

    AD-RtR/OS! (b8ab92)

  16. @ Kevin M –

    If you do not pay your bill for services rendered by a private practitioner you will be chased by bill collectors and possibly sued if the bill is large enough.

    There is absolutely no reason to bring the IRS into it, unless your assumption is we’re all under a “happy rainbow single government payer system” and you’ve just stiffed the government.

    It’s pretty clear from Aaron’s assessment that the mandate by itself is not necessary to execute the other provisions. It is an incentive, however, to the insurance companies to coax / coerce them to take people onto their rolls that would ordinarily be denied coverage. Let’s see how well that medicine goes down with no sugar to chase it.

    dc981924 (4d4f24)

  17. Is there not an Obamacare challenge coming out of Mississippi that makes the same Roe v Wade argument that you did? that Obamacare violates the individual right to control their own medical destiny?

    Rorschach (7a2fd6)

  18. dc9–

    I’m not advocating such a system, I’m just pointing out that the mandate is not the only way to enforce payment for medical coverage. The argument that the Dems make is that deadbeats (e.g. other Dems) would game the system and use public medical services to cover themselves, so we cannot let people self-insure. My answer is that if this really bothers you, the IRS is quite adept at getting blood from rocks; but in any event a mandate is not the only way to do this.

    Note that my first objection to Obamacare is the mandate. The ship has long sailed on whether the state will provide medical services.

    Kevin M (298030)

  19. Note aside: If the mandate fails constitutionally, Obamacare will also likely fail. But the fire next time will be a payroll-tax-based single-payer system, likely quite constitutional. At least as much as Social Security and public schools are.

    Kevin M (298030)

  20. “It is an incentive, however, to the insurance companies to coax / coerce them to take people onto their rolls that would ordinarily be denied coverage.”

    dc981924 – Sure it’s an incentive and since the law essentially forces the insurers into community underwriting standards, it was a big one. Insurers could just say without the mandate, we’ll pull out of the health care market and sit on the sidelines until this whole thing sorts itself out from on the legal front. A lot of game theory involved in what could happen.

    daleyrocks (c07dfa)

  21. AD

    > So, you’re saying that (in your opinion) the National Firearms Act of 1934 is unconstitutional since it regulates firearms by taxing them?

    Fair question. I was a little vague about that. what I mean is that you cannot use the power to tax to make bullets so expensive to be prohibitive, thus defeating by a technicality the second amendment. I am inclined to think a more ordinary tax on them is kosher.

    Rorschach

    No, I hadn’t heard of that case. If you can give me a link or a lead on it, I would appreciate it.

    Aaron Worthing (b8e056)

  22. Try this Big Government article, Aaron.

    DRJ (d43dcd)

  23. @AD-RtR/OS! Absolutely it is unconstitutional. The second amendment says “the right of the people to keep and bear arms shall not be infringed.” it doesn’t say “except if we decide it can be”. A tax on the weapon is an infringement because some people will be unable to pay that tax. That is no different from a poll tax infringing on a person’s right to vote. and it also does not say what it defines as an “arm” either. it does not say that muzzle loading arms are ok but semi-autos are not. or that wood stocked bolt actions are ok but evil black plastic ones aren’t. For that matter technically even ICBMs and Main Battle Tanks and artillery pieces are included under the word “arm”. The constitution brooks no picking and choosing, whether YOU think it is right and proper for an individual to own them or not.

    Rorschach (7a2fd6)

  24. Rorschach,

    I believe the government can enact laws that limit our rights and interests, especially our economic interests or if the applicable standard of review is the rational basis test. I don’t know if Heller established the applicable standard of review for regulating guns but, in general, the government is allowed to regulate gun ownership by denying felons the right to possess guns and establishing gun-free zones.

    DRJ (d43dcd)

  25. Hudson got it right and Kerr got it wrong, and embarrassingly so for a law professor. The N&P clause does not establish substantive legislative authority. The substantive constitutional hook must come from a separate constitutional authority, in this case the interstate commerce clause. This much Kerr seems to get right.

    Kerr’s analysis seems to imply that the N&P clause can render constitutional a specific statutory section that is otherwise unconstitutional because the section is part of a larger legislative scheme. This is incorrect.

    In this case, the challenge is specifically that the individual mandate provision of Obamacare is unconstitutional. The S.Ct.’s analysis in Gonzales, Lopez, and Morrison demonstrates that the specific statutory provision(s) being challenged are subject to scrutiny by the Court. The mere fact that a specific statutory section is part of a larger legislative framework is not sufficient to support the constitutionality of that specific provision.

    In layman’s terms, the mere fact that Congress possesses the power to regulate the broad field of health care under the commerce clause is not sufficient to rebut a challenge to the specific statutory section that requires individuals to obtain insurance. Congress must establish that it has authority to legislate the specific provision.

    The absence of economic activity cannot be regulated by Congress under the ICC, regardless of whether the absence of economic activity is part of a larger legislative scheme. It is unconstitutional for Congress to impose an individual mandate to purchase insurance or otherwise engage in economic activity. Unconstitutional acts of Congress cannot be rendered constitutional by virtue of the N&P clause.

    Hudson’s opinion could perhaps have been more explicit on this point, but it is hardly necessary.

    Aged Attorney (fd833d)

  26. I believe the government can enact laws that limit our rights and interests, especially if the applicable standard of review is the rational basis test

    Similarly, the government should be able to limit voting, for example to one per person, or none for felons, or to a certain precinct, or only if you register by X date, etc.

    But it shouldn’t tax your vote, and it shouldn’t tax guns (apart from the way it taxes goods generally, of course). Just my opinion, but I see the issues as fairly similar.

    Dustin (b54cdc)

  27. Um NO, the problem is that 12 little emperors in black robes who are accountable to NOBODY have illegally appointed THEMSELVES the final arbiter of what the constitution means. The Necessary and Proper clause does not allow the court to arbitrarily countermand the black letter of the constitution. I don’t care by what basis you base the decision on, they simply do not have the right to do it. FULL STOP. The constitution says what it says and if the people want it to say something different there is a defined procedure to change it. The words say “SHALL NOT BE INFRINGED”. It DOES say that they can be if they are given due process which means that their individual situation can be judged BY A JURY OF THEIR PEERS to be such that their rights can be abridged, but it does not mean that everyone’s rights can be abridged without a trial. So yes a felon can have his or her rights taken away, but it does not mean that the government can arbitrarily declare a particular place gun free or that a shotgun of a particular length is illegal, or that a magazine with more than ten rounds is illegal, or that I cannot carry my weapon without being granted a permit to do so. The constitution is my permit.

    Rorschach (7a2fd6)

  28. Now, this is an argument you don’t hear conservatives raising, but what is the basis of the decision in Roe?

    I’ve always felt that conservatives have underestimated the role Roe v Wade had in establishing the right of privacy in constitutional law. Or as I once explained it in an abortion specific context: “It may keep the government from preventing an abortion, but it will also keep the government for demanding an abortion.” Think of a future with government run health care, a pregnant woman whose child is known to have serious birth defects, and a government bureaucracy deciding she needs to abort the child because its expected health care costs are too high. It’s the logic of Roe v Wade that would allow her to tell the bureaucrats to go to Hades.

    kishnevi (bf6892)

  29. I think Marbury v. Madison established that the Supreme Court Justices are, in fact, the final authority when it comes to interpreting the Constitution.

    DRJ (d43dcd)

  30. kish

    You don’t have to establish a right to an abortion to establish a right NOT to have an abortion. In fact, in order to establish the right to an abortion, you have to say the fetus has no right to life.

    But if you say the fetus is a person, and thus abortion can be limited, that does not give government the right to force an abortion on you. Quite the contrary, because now you are not only talking about the rights of the mother, but the fetus, too.

    Aaron Worthing (b8e056)

  31. In all practicality, someone does have to decide what the laws are saying.

    I don’t object to that part of Marbury. I object to the fact that they often interpret the law by stretching. I would much prefer if they settled every gray area question by sticking to precedent and finding no new powers, because then we could settle political questions by democratic means.

    Dustin (b54cdc)

  32. DRJ that is my point. They declared THEMSELVES to be final arbiters, thereby declaring themselves emperors for life. the constitution did not grant them that power, they seized it illegally. they have no limits on their power, unlike the other two branches. Congress and the president cannot overturn their rulings. And if they did they could simply declare by fiat that the law passed is unconstitutional. we do not live in a republic, we live in a oligarchy.

    That is not to say their function was not needed, but the form it took is the antithesis of a democratically elected republic.

    Rorschach (7a2fd6)

  33. So far it has (mostly, but certainly not always) worked out more or less ok, but the danger is when you have a majority of morons like Bryer and Sotomayor and Ginsberg who see absolutely no limit to their authority and do not see the constitution as exerting any limits whatsoever on what they can decide. THAT is when the genie comes out of the bottle.

    Rorschach (7a2fd6)

  34. Thanks for clarifying that for me, Rorschach. Would you prefer to see judges appointed for specific terms, like state judges and bankruptcy judges? Or do you think the judiciary should not serve as a check and balance on the executive and legislative branches?

    DRJ (d43dcd)

  35. Yes, fixed terms of say 10 years with the ability to recall them at any time by a 2/3 majority of the senate OR a simple majority of both houses and the signature of the president. Or some variation on that theme. In that way, they absolutely MUST circumscribe the usage of their power or they will have it taken away.

    Rorschach (7a2fd6)

  36. Rorschach – It seems like giving this kind of power over to a majority of who themselves are unwilling an incapable of acting without the confines of the Constitution would be troublesome.

    JD (d8bee7)

  37. Think back, how many exceedingly stupid and unpopular opinions would have been handed down if the justices had to defend their rulings to the public or the public’s duly elected representatives? The whole reason we are even HAVING this discussion is because the judiciary holds all the cards. They can even arbitrarily decide that you don’t even have the right to seek redress for your grievances by either declaring you to not have standing or by simply deciding to not hear your case. How many eligibility lawsuits were dismissed in that manner? even the ones that made it TO SCOTUS were simply denied a hearing. If the case makes it to that level, then SCOTUS should be REQUIRED to place it on their docket, regardless of how much work it is for them. maybe they should simply work all year like the rest of us.

    Rorschach (7a2fd6)

  38. I think we need to deal with the constitutional system we have today.

    SPQR (26be8b)

  39. JD are you trying to say that the supreme court could not function if it had to confine itself to the black letter law of the constitution? Have you been smoking that medical marijuana?

    Rorschach (7a2fd6)

  40. SPQR why? the system is fundamentally broken and the longer we allow it to continue the harder it will be to fix. It may well already be impossible to fix without a revolution.

    Rorschach (7a2fd6)

  41. And I don’t find advocating revolution to be a very entertaining discussion.

    SPQR (26be8b)

  42. That is not at all what I was saying. You suggested that a majority of congresscritters should be able to remove a judge, and I simpoly noted that the congresscritters are every bit as noxious.

    JD (d8bee7)

  43. I say, if we are going to modify our system somehow, to put a check on the Court, don’t give that check to the US Congress and President. Give it to the states.

    If a simple majority of state legislatures want a Justice removed, let it be done. That’s an easy bar to pass, and I think it’s appropriate. I certainly think Breyer’s recent comments show an absolute lawlessness and would justify his removal.

    Also would like for the US Senate to be selected by the states.

    Can these reforms be added via amendment? Probably not, these days. So we have to work very hard to win Senate and Presidential elections, because Mccain failing, in particular, led to a tremendous lost opportunity to improve our Court.

    Dustin (b54cdc)

  44. You know, SOME states elect their judges and the sky has not fallen. There is merit in considering the election of Federal judges instead of lifetime appointment.

    Rorschach (7a2fd6)

  45. But wouldn’t fixed terms for federal district and appellate judges make them even more beholden to the politicians that appoint them, because they would want to be reappointed at the end of each term? It seems to me that shorter/fixed terms would politicize judges even more than they already are.

    DRJ (d43dcd)

  46. Where can I get one of those “Keep your laws off of my body” bumperstickers?
    I think they can make a comeback

    SteveG (cc5dc9)

  47. As for electing judges, wouldn’t large population areas end up choosing most of the judges? It seems to me that the large (mostly blue) cities in each jurisdiction would elect more district judges, and the large (mostly blue) states would elect more appellate judges. Conservative judges might be shut out of many courts.

    DRJ (d43dcd)

  48. It seems to me that shorter/fixed terms would politicize judges even more than they already are.

    To some extent, it certainly would. But I bet Breyer wouldn’t be bragging about how the 2nd amendment doesn’t have to be followed because of some irrelevant theory about why it became law.

    Some politicization is necessary if the Court is going to continue to attempt to resolve political issues.

    Ideally: lifetime appointments of justices who do not settle political powers or ever find any additional federal power without a constitutional amendment. Also: skittle rainbows and marshmallow unicorns for everybody.

    Dustin (b54cdc)

  49. If the districts were set up by equal population and the districts were drawn the way congressional districts are drawn then that problem would tend to balance itself out.

    Rorschach (7a2fd6)

  50. AW

    Thanks for filling in… and for taking criticism with good nature.

    SteveG (cc5dc9)

  51. Dustin:

    But I bet Breyer wouldn’t be bragging about how the 2nd amendment doesn’t have to be followed because of some irrelevant theory about why it became law.

    Heh. That may be so. Or maybe he would only say that behind the scenes, such as at campaign dinners in San Francisco.

    I hesitate to make rules for all federal judges based on how Supreme Court Justices act. There will always be politicization of Supreme Court justices as long as Presidents choose them, Senators confirm them, and they are deciding the highest profile cases. But, to me, having all federal judges run for office or lobby to be reappointed to office on a regular basis would increase the politics involved exponentially.

    DRJ (d43dcd)

  52. Steve

    I think the new liberal slogan is: “Please put your laws all over my body. Get up all in that.”

    And i always appreciate everyone’s criticism. except yelverton and kman’s. 😉

    Aaron Worthing (b8e056)

  53. AW – I started a new website, just for the Prof of Plagiarism.

    JD (d8bee7)

  54. Or maybe he would only say that behind the scenes, such as at campaign dinners in San Francisco.

    Of course, that’s the truth. Just like all the cynical politicians, judges who are politicians just keep their mouth’s shut. I guess it’s a good thing Breyer admitted his terrible justification.

    You are onto a major point in your distinguishing judges from the Court Justices. Sadly, the latter has become quite political, and I wouldn’t mind if there was a much easier recall method than impeachment.

    Dustin (b54cdc)

  55. And Scalia’s right that they all deserve a major pay raise. They won’t be getting it, but it’s a rare example of an underpaid government worker.

    Dustin (b54cdc)

  56. “Where can I get one of those “Keep your laws off of my body” bumperstickers?”

    SteveG – How about a “Keep your laws off of my kid’s lunch” bumpersticker?

    daleyrocks (c07dfa)

  57. Instead of the pledge of allegience the schools will do a morning weigh in and confiscate any foods not bearing the official Michelle stamp of goodness. Ironically the stamp features Mrs. Obama ripping into a double cheeseburger while in the background Mr. Obama is sneaking a smoke.

    SteveG (cc5dc9)

  58. It will be a political v legal vote at SCOTUS meaning the court’s left will vote for Obamacare because of their beliefs, the right will rule against Obamacare because of Constitutional law and the swing guy may wonder off to Europe and decide Universal Political Law applies and vote with Left.

    There is a caution: The Left is so riled up these days some may actually consider and act on taking out one or more of the votes against Obamacare. It’s the world as only the Left knows it.

    cedarhill (c44904)

  59. cedar

    Actually i have argued in the past that the reason why kennedy won’t uphold obamacare is it represents the end of privacy, which means the end of decisions like lawrence v. texas.

    Mind you, kennedy is an activist. But he really isn’t a “follow the euros” type of guy. For instance, the euros would not have approved of his decision upholding the second amendment. he didn’t do that because he was following the constitution, though, but because he happens to agree with it, there.

    Aaron Worthing (e7d72e)

  60. Not sure if someone else has mentioned it, but there is a link at Volokh to a Brooklyn Law Prof. note suggesting that Hudson’s reasoning under both the Commerce Clause AND the N&P Clause both turn on the fact that the law seeks to regulate behavior based on inactivity — i.e., the failure to purchase health insurance.

    Since Hudson finds inactivity does not implicate interstate commerce, there is no application for the N&P Clause since the mandate also would be triggered by inactivity.

    The Prof. reads this as Hudson adopting the analysis of Scalia’s concurrance in Raich.

    Curiously, IMO Hudson seems to be reading the lineup of the Court in Comstock, where CJ Roberts aligned with Breyer on the N&P Clause reasoning, which is what Kerr and other critics of Hudson’s analysis seem to be focusing on.

    But there was no “activity/inactivity” dichotomy in Comstock. So, this distinction potentially brings the CJ back to the conservatives side here.

    I think more attention needs to be paid to the concurring opinion by Justice Kennedy in Comstock, joined by Justice Alito.

    Scalia and Thomas dissented in Comstock. I’ll have more on this later when I have more time.

    shipwreckedcrew (436eab)

  61. The point about writing a 2000 page constitution reminded me of the cluster crap that the european union got approved by mostly nonelectoral means. I think only one country actually had a referendum.

    dunce (b89258)

  62. Kerr is right and you are mistaken, Aaron, but geez, I do hope you win this one.

    First, let’s note the irony that conservatives accuse the ACA of “taking over healthcare” when they are being…..well, the nicest word I can think for that misrepresentation is “rhetorical.” The bill reforms insurance, not healthcare.

    At any rate, as a supporter of single payer, I applaud this attack on the mandate. Hudson’s idea will destroy private insurance and some mixture of private/public will evolve that will insure everyone AND cost less. We can finally be like every other civilized country and Earth and take care of our citizen’s health.

    This is win/win, baby

    timb (449046)

  63. timb

    you think the government taking over health care will reduce costs?

    Yeah, with death panels. Otherwise, no.

    Aaron Worthing (b1db52)

  64. Hudson’s idea will destroy private insurance and some mixture of private/public will evolve that will insure everyone AND cost less.

    And unicorns will fart fairy dust.

    JD (d8bee7)

  65. “some mixture of private/public will evolve that will insure everyone AND cost less.”

    Yes, on a level playing field the government has always distinguished itself as an efficient and formidable low cost competitor!!!!11ty!!!!

    Must get more coffee.

    daleyrocks (c07dfa)

  66. timb, I see a major leap of logic in your views about how we reach this win/win utopia. But maybe I just don’t understand where these savings come from. I’d appreciate more explanation.

    Anyhow, don’t expect an unpopular system like Obamacare to continue through these struggles. You’re suggesting major revisions to enhance it… who is going to give you that? Congress?

    And yes, you’re right, we’re calling this healthcare reform instead of insurance reform.

    You do realize the Democrats did that, right? This is their legislation and that was how they described it (and continue to today).

    One of a million examples:

    “No matter how we reform healthcare, we will keep this promise to the American people, if you like your doctor, you will get to keep your doctor.” If you like your healthcare plan, you will be able to keep your healthcare plan. No one will take it away no matter what.”

    So why are you bashing Republicans for calling this a healthcare takeover?

    Not, also, that you’re delighted with something that is abhorrent to democracy. Remember that, the next time a conservative uses the term ‘Democrat Party’ instead of ‘Democratic Party’.

    The people do not want what you’re cheering on. We just had an election. Honor your country and accept that the Obama agenda is over.

    Dustin (b54cdc)

  67. My quote is of Obama, of course.

    Dustin (b54cdc)


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