Patterico's Pontifications

2/1/2011

Scattered News, Reactions and Rebuttals in the Discussion of Vinson’s Ruling

Filed under: General — Aaron Worthing @ 5:59 pm



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

First, the good.  There is good, straightforward discussion of the case at the Wall St. Journal.  And Law.com is always good for providing quality legal reporting.  They also give us an update on other cases involved in Obamacare:

The 4th Circuit just last week set an expedited briefing and argument schedule for its review of the two Virginia cases: Sebelius v. Commonwealth of Virginia, and Liberty University v. Geithner. All briefing is to be completed by April 18 with a hearing date for May 10-13. Both cases will be heard on the same day, according to that court.

The Michigan case — Thomas More Law Center v. Obama — is now before the 6th Circuit. Briefing was completed last week, but no argument date has been scheduled.

A case is also pending in the 9th Circuit — Baldwin v. Sebelius, which a district court dismissed for lack of standing.

That last bit should be remembered the next time someone claims that the fact that a lot of other cases have been dismissed matters.  There are a lot of ways to dismiss a case without reaching the question of whether the mandate is constitutional.  As for standing, there can be rational debate about whether it exists now (I believe it does), but there is no question that the first time they try to enforce the mandate, that person will have standing.  So standing is a significant issue in and of itself, but it’s inevitable that sooner or later someone will have it.

Of course law.com also missed a case, discussed here, where they used Roe v. Wade to attack Obamacare.  I haven’t heard anything about this case for a while, so I will try to learn more and post on it.

Now the criticisms.  The first is Jack Balkin, a Constitutional Law Professor at Yale Law School and frankly I am disappointed in this post from him.

In it he first recites the myth that Bush v. Gore was saying it was not setting a precedent, by quoting this passage: “Our consideration is limited to the present circumstances, for the problem of equal protection in election processes generally presents many complexities.”  And thus the left, for well over ten years, have turned a simple and logical statement that election law is complicated, and thus each inquiry is individualized and fact-intensive, into a claim that this doesn’t count as precedent.  It isn’t what the court said, and indeed the courts have regularly cited Bush v. Gore as precedent in about two hundred cases, according to Fastcase and even more according to Google.

And then Balkin turns around and tries to claim that this element, that wasn’t actually in Bush v. Gore, is present in Vinson’s decision, by quoting this line:

The individual mandate cannot be severed. This conclusion is reached with full appreciation for the “normal rule” that reviewing courts should ordinarily refrain from invalidating more than the unconstitutional part of a statute, but non-severability is required based on the unique facts of this case and the particular aspects of the Act. This is not a situation that is likely to be repeated.

(emphasis added by Balkin).  But this supposedly ominous statement is nothing more than an assessment of how likely it is that the judge will be faced with an analogous situation. As he wrote just before the cherry-picked section:

In sum, notwithstanding the fact that many of the provisions in the Act can stand independently without the individual mandate (as a technical and practical matter), it is reasonably “evident,” as I have discussed above, that the individual mandate was an essential and indispensable part of the health reform efforts, and that Congress did not believe other parts of the Act could (or it would want them to) survive independently.

Isn’t it reasonable to say he isn’t likely to see a situation like that again in his life?  A situation where 1) Congress forgets (or intentionally leaves out) a severability clause in 2) a massive statute, 3) the keystone of which is a provision 4) which represented a literally unprecedented grasp for power?  This is not a common occurrence and pointing that out doesn’t mean the judge has suddenly declared his ruling to have no precedential value.

For years I thought of Professor Balkin as inconsequential.  Now I am convinced he is just a hack.

Speaking of hacks, Think Progress has come up with another “scandal.”  The judge borrowed texts from a brief from the Family Research Council that the Southern Poverty Law Center calls a hate group!

Well, first, borrowing language from a brief is actually normal.  To be blunt, most lawyers making their case hope it happens and it happens all the time.

Second, Legal Insurrection has pointed out the radicalism and sloppiness of the Southern Poverty Law Center’s labeling of hate groups, here and here.  For instance, merely opposing gay marriage will earn you the designation of “hate group.”  So I suppose that includes the Obama Presidential Campaign in 2008, right?

Third, look at the horrible language Judge Vinson borrowed (plain text is Vinson’s authorship alone, and boldface is the text he apparently borrowed):

Severability is a doctrine of judicial restraint, and the Supreme Court has applied and reaffirmed that doctrine just this past year: “‘Generally speaking, when confronting a constitutional flaw in a statute, [courts] try to limit the solution to the problem,’”

And this hateful stuff, too:

The question of severability ultimately turns on the nature of the statute at issue. For example, if Congress intended a given statute to be viewed as a bundle of separate legislative enactment[s] or a series of short laws, which for purposes of convenience and efficiency were arranged together in a single legislative scheme, it is presumed that any provision declared unconstitutional can be struck and severed without affecting the remainder of the statute.

Now you might be thinking, “wait, that’s it?  Where is the hate?”  And the answer is, yes, that’s it and no, I don’t see any hate, either.  So what this whole thing amounts to is an ad hominem attack against the Family Research Council and then an attempt to smear the judge by association because the judge found a few lines in their brief to be well written on a matter that didn’t even relate to their alleged hate.  Everyone at Think Progress should be ashamed to have written something so stupid and dishonest.  But I know they are beyond shame.

Next, via Hot Air, we get this video of Obama making the argument against the mandate, under the headline “Guess Who Predicted the Obamacare Ruling?

Now I confess it is more than a little funny to mock how Obama had flipped, but it’s also a little cheap.  Obama wasn’t talking about the constitution in that clip.  He was talking about the policy.

Still, you have to wonder how did Obama think this would work?  For instance, in 2007, Obama “pledged to block insurance providers from denying coverage to people with pre-existing conditions.”  But he opposed the mandate.

But according to Secretary Sebelius this would be a disaster.  From the Virginia opinion by Judge Hudson:

In the Secretary’s view, the key elements of health care reform are coverage of those with preexisting conditions and prevention of discriminatory premiums on the basis of medical history. These features, the Secretary maintains, will have a material effect on the health insurance underwriting process, and inevitably, the cost of insurance coverage. Therefore, without full market participation, the financial foundation supporting the health care system will fail, in effect causing the entire health care regime to “implode.”

So there are only two options to explain candidate Obama’s position on the mandate.  Either he is a complete idiot who doesn’t understand the first thing about economics and incentives, or he knew the mandate was necessary to make it work economically and was lying when he said he opposed it.

Next we come to Orin Kerr.  Last time he claimed that Judge Hudson made a “significant error.”  This time he asserts he found the weak link in Vinson’s opinion. Basically his argument goes like this.  Because a dissent in one case says that the majority in that case granted the Federal Government unlimited power, the Federal Government has been granted unlimited power.

But this is the losing argument.  The majority could have rejected it, logically, for two reasons: 1) because they want to grant unlimited power to the Federal Government, or 2) because they don’t accept that premise.  And in fact it was the second position that was actually the opinion of the court.

You’re reaching, Orin.

After that, we get Concurring Opinions where Mark Hall repeats the mistake Orin Kerr made on Judge Hudson’s opinion.  His argument goes like this: the judge admitted that the mandate was essential to the law when deciding he couldn’t sever it, so therefore it must be necessary for purposes of the necessary and proper clause.  But as I said when rebutting Kerr the first time:

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 the mandate was not necessary for that purpose, to quote one of the amicus briefs:

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.

And all of that commentary is as true today, but it’s worth pointing out something else.  I want you to consider the words of Justice Jackson.  In Korematsu v. the U.S., the Supreme Court declared that the Japanese internment was constitutional.  In dissenting Jackson said that this was a dangerous decision as follows:

The principle then lies about like a loaded weapon, ready for the hand of any authority that can bring forward a plausible claim of an urgent need. Every repetition imbeds that principle more deeply in our law and thinking and expands it to new purposes. All who observe the work of courts are familiar with what Judge Cardozo described as “the tendency of a principle to expand itself to the limit of its logic.”  A military commander may overstep the bounds of constitutionality, and it is an incident. But if we review and approve, that passing incident becomes the doctrine of the Constitution.

But according to the liberal leaning legal scholars, Korematsu would have been the correct decision—if only the need was urgent enough.  And considering that John Marshall had watered down the term “necessary” to mean nothing more than useful, that is a scary prospect indeed.

According to Greg Sargent, Professor Louis Seidman of Georgetown University made the same mistakes.  Mind you, Sargent doesn’t recognize that as a mistake, but that is what it is.

Another fallacious point is actually a few weeks old but suddenly has been flying around the comments.  In a flat out dishonest piece, Rick Ungar asserted that

In July of 1798, Congress passed – and President John Adams signed –“An Act for the Relief of Sick and Disabled Seamen.” The law authorized the creation of a government operated marine hospital service and mandated that privately employed sailors be required to purchase health care insurance.

He is absolutely wrong and I can’t believe he didn’t know he was wrong when he said it.  Follow the link and read the statute.  They didn’t mandate insurance.  What it did was this.  They taxed ships according to the number of sailors.  Then those taxes went to build hospitals, for the sailors.  Which, when you think about it, is no different than how many public works were funded and have been funded for years, such as our prisons.  But most people are not silly or dishonest enough to claim that the building of our prisons is a precedent to require you to purchase health insurance from a private individual.  And the most annoying thing about this dishonest piece by Ungar?  It was refuted months ago by David Kopel.  I will be informing Forbes of this deception and demanding a correction shortly.

The only thing Ungar’s piece highlighted is a point I have made for a while: it is probably easier to assert that a public option is constitutional than mandating the purchase of private insurance.  We call that irony.

For a much more balanced approach to Judge Vinson’s opinion, meanwhile, we get Ann Althouse discussing Judge Vinson’s utterly mundane opinion striking down the health-care law.  Her main point:

is that Judge Vinson has produced a workmanlike application of the Supreme Court case law devoid of flights of creativity, as befits a district court judge.  Politicos who froth about what an extreme activist he is are trying to cow the judiciary into approving of the law because it’s a big f—ing deal.

I think that is mostly right, but it undersells what the judge did.  He also wrote a persuasive opinion, that is very likely to influence the higher courts.  Already his citation of the Boston Tea Party has gotten many people’s attention.  It is probably not what anyone would call “creative” but it is extremely well put.

And for some fun, there is this Xtra-Normal video on the ruling (via Legal Insurrection):

Normally I am not a big fan of these things.  It is mostly the all-so-witty and clever person you happen to agree with, beating up a punching bag who spouts some ideas that the people you don’t agree with believe.  But this one struck me as funny, at least until it had the liberal declare that she didn’t believe in democracy. Then it once again seemed like too much of a lay-up.

Finally, we have this interview with Mitt Romney telling us he had no apologies for Romneycare.  Which is why you are not getting the nomination, bub.

[Posted and authored by Aaron Worthing.]

162 Responses to “Scattered News, Reactions and Rebuttals in the Discussion of Vinson’s Ruling”

  1. They didn’t mandate insurance. What it did was this. They taxed ships according to the number of sailors.

    Not really. They taxed the sailors’ wages, at a rate of 20 cents per month. The ship owner was merely a collector of the tax, just like any employer today.

    Nevertheless, the sailors weren’t purchasing anything, not even from the government, let alone from a private person. And they could easily avoid this tax, either by choosing some other line of work or by choosing to work for ships that were neither USA-flagged nor licensed for coastal trade. And the constitution does authorise Congress to regulate the shipping industry.

    Milhouse (d84b40)

  2. “They taxed the sailors’ wages, at a rate of 20 cents per month.”

    Milhouse – Correct me if I’m wrong, but until the 16th Amendment, weren’t any federal taxes other than a flat head tax illegal?

    daleyrocks (479a30)

  3. A.W. – I thought Kerr was stretching pretty far when I read his post as well. I agree the Administration and the left are trying to work the refs as hard as they can.

    daleyrocks (479a30)

  4. daley

    you are right. no direct taxes. and even now, no direct taxes except income taxes.

    So that is why the tax was officially on the ship. now they knew that the ship’s owner would take it out of the sailors, and the statute makes that possible. but there you go.

    Aaron Worthing (73a7ea)

  5. Daley, you’re mistaken. The constitution authorises all sorts of “Taxes, Duties, Imposts and Excises”. Even an income tax was probably legal before the 16th amendment.

    Milhouse (d84b40)

  6. “Even an income tax was probably legal before the 16th amendment.”

    Milhouse – I was not talking about duties, excises or imposts. I was talking about taxes based on income. You might want to check that conclusion.

    daleyrocks (479a30)

  7. Before the 16th, I believe the Feds could levy a tax, but it had to be census based, flat per head, no discrimination.

    daleyrocks (479a30)

  8. So Orin Kerr’s position seems to be that since the Supreme Court seems to have ruled that Congress’s powers are unlimited, or have only trivial limits, lower court judges such as Vinson are bound to follow that precedent. And this is the flaw in his reasoning.

    It’s true that Supreme Court majorities have in effect ignored the limits on Congress’s power; but they have no power to do so. They get away with it by pretending that they haven’t done so; that there really are limits, strong limits, that just haven’t been reached in this or that or the other case, but trust us they exist and the minute Congress steps over the line we’ll reign them in. Thomas, in his Reich dissent, called them liars, which indeed they are, but they keep telling the lie. And they have to keep telling the lie, because as soon as they stop telling it they are ultra vires and their rulings are by definition void and not binding on anybody. Lower court judges, who have sworn an oath to uphold the constitution, would not only not be required to follow such a precedent, but would be prohibited from doing so.

    So Vinson was entirely correct to start with the first principle, that there must be limits on Congress’s power. The constitution says so. And any supposed obligation he has to the Supreme Court’s precedents exists only so long as the pretense is maintained that those precedents preserve the limits.

    Milhouse (d84b40)

  9. Aaron and Daley, you’re wrong. Taxes on wages are not direct taxes, and Congress had every right to impose them even before the 16th amendment. Not even Pollock changed that.

    Milhouse (d84b40)

  10. Before the 16th, I believe the Feds could levy a tax, but it had to be census based, flat per head, no discrimination.

    On the contrary, that is a tax the feds could not levy for their own expenses; a poll tax is a direct tax, and therefore all the revenue raised would have to be apportioned to the states in proportion to their population as counted in the census. A tax on wages, however, as this one was, is not a direct tax, and the feds can impose it and keep the money, as they in fact did.

    Aaron, the tax was not on the ship; the ship owner was specifically authorised to withhold it from the sailors’ wages, which means it was on them. The ship owner had no more to do with it than an employer today does by virtue of his withholding his employees’ income taxes.

    Milhouse (d84b40)

  11. Milhouse – I think there was substantial difference of opinion over what was considered a direct versus indirect tax as you are aware from history. The 16th Amendment and Brushaber began clearing up some of the confusion.

    daleyrocks (479a30)

  12. Um, no. There has never been an opinion that a tax on wages is a direct tax.

    Milhouse (d84b40)

  13. milhouse

    my impression is that a tax on your individual wage is a direct tax. but its an academic point. Your conclusion–that the situations are not the same–is the same as mine.

    Aaron Worthing (73a7ea)

  14. Even when he was a candidate, sans TOTUS, he was all uh huh uh um huh uh uh uh um huh duh.

    JD (d4bbf1)

  15. It is indeed academic, but Aaron your impression is incorrect. Taxes on wages have never been considered direct taxes, and it has always been constitutional for Congress to impose them and keep the money.

    The definition of a direct tax is that it’s imposed on people or property themselves, simply for existing; an indirect tax is imposed on what a person or property does. Thus a poll tax is a direct tax, because you pay it just for being alive, not even for the activity of breathing. A land tax is a direct tax; so is a tax on cars. They’re both imposed simply because you have the property, not because you’ve done anything with it. The only way you can get out of a poll tax is by no longer existing, and the only way you can get out of a property tax is by no longer owning the property in question.

    There is no question, and has never been a question, that a tax on wages, i.e. on income that you get for working, is an indirect tax. No legal authority has ever suggested otherwise. It’s as plain as any question of law ever is. The question that arose in the late 19th century, and that led to Pollock and the 16th amendment, was whether taxing the income produced by property amounted to a disguised tax on the property itself, because it reduced that property’s value. That argument cannot be applied to wages; taxing them doesn’t reduce your value, since you’re not a slave, so it can’t be considered a disguised poll tax.

    Note also that Congress is perfectly free to impose direct taxes, and always has been. It just can’t keep the money. To say that if a tax on wages were a direct tax it would be illegal (before the 16th) is flatly wrong.

    Milhouse (d84b40)

  16. milhouse

    if congress could tax wages in the original constitution, then why did we need the 16th amendment?

    Aaron Worthing (73a7ea)

  17. Milhouse – I find you are correct. The distinctions between sources of income prior to the 16th Amendment were more important, probably due to the nature of our economy, than they are now considered.

    “The Court in Brushaber also noted that before Pollock, taxes on income from professions, trades, employments or vocations were excises, they were indirect in both form and substance and thereby had never been apportioned; so they were entitled to be so enforced afterwards”

    daleyrocks (479a30)

  18. See my previous comment. To tax income derived from property.

    Milhouse (d84b40)

  19. “To say that if a tax on wages were a direct tax it would be illegal (before the 16th) is flatly wrong.”

    Milhouse – Perhaps my error is not to cut it as finely as you did before comment 9 when you introduced the concept of taxes merely on wages. Prior to that we were indeed talking about talking about taxes on income, which could have potentially been direct or indirect depending on it’s nature. I do appreciate the snippiness and almost missed the goal shifting.

    daleyrocks (479a30)

  20. It’s not a matter of the nature of the economy.

    Until Pollock it was taken for granted that just as a tax on your person is direct, but a tax on the income you get from working is indirect, so also a tax on your land is direct but a tax on the income you get from renting it out is indirect, and a tax on the possession of stocks is direct but a tax on the dividends they pay out is indirect.

    The argument that the Supreme Court adopted in Pollock is that this is all a big lie. Congress may say it’s merely taxing the rent your land produces, or the dividend your stock pays out, or the interest your cash earned. And that sounds very nice and proper. But the value of land, stocks, or cash reserves is measured by the income you can get from them. The less you can make from them the less they’re worth. And so what Congress has really done is find a sneaky way to tax the property itself. And while it’s perfectly free to do so, it can’t keep the money.

    Now that argument seems like nonsense to me, but the majority of the Court bought it, and so we have the 16th amendment.

    Milhouse (d84b40)

  21. Daley, you’re the one shifting the goals, so to speak. It is untrue that we were talking about taxes on income. We were talking specifically about the tax on sailors’ wages.

    Milhouse (d84b40)

  22. “It’s not a matter of the nature of the economy.”

    Reread my comment dumbass.

    daleyrocks (479a30)

  23. And more to the point: the words you quote and challenge (“To say that if a tax on wages were a direct tax it would be illegal (before the 16th) is flatly wrong”) have nothing whatsoever to do with the distinction between wages and other income. It’s very simple. You were under the impression that before the 16th amendment Congress could not lay direct taxes. That is flatly wrong. Congress has always had the power to lay direct taxes, including poll taxes, land taxes, and any other direct tax it likes. There is not a word in the constitution prohibiting it. It just can’t keep the money.

    Milhouse (d84b40)

  24. “It is untrue that we were talking about taxes on income. We were talking specifically about the tax on sailors’ wages.”

    Milhouse – The words in my comments mean something. Comments 2-6 all talked about income tax without distinction of income source, the broader concept brought in because I mentioned the 16th Amendment. You reintroduced the subset, wage income in comment 9.

    I would say you were right on wages. I was partially right.

    daleyrocks (479a30)

  25. I did reread it. You claimed that “the distinctions between sources of income prior to the 16th Amendment were more important, probably due to the nature of our economy, than they are now considered”. That is nonsense. It has nothing to do with the nature of the economy. It has nothing to do with how economically important the distinction is.

    Economically there is no difference between a spending increase and a tax cut; they have exactly the same effect on the budget. But the distinction is nevertheless important, and we shout every time some politician forgets it. The distinction between income derived from labour and from property, according to the Pollock majority, was simply that the constitution authorises Congress to keep the proceeds of taxing one but not the other.

    Milhouse (d84b40)

  26. “You were under the impression that before the 16th amendment Congress could not lay direct taxes.”

    Untrue. I was under the impression they could if they were apportioned purely based upon the census or population.

    daleyrocks (479a30)

  27. Daley, you called direct taxes “illegal”.

    Milhouse (d84b40)

  28. Um, wait a minute. I think I’ve found at least one nub of our disagreement. Daley, what exactly do you think “apportioned purely based upon the census or population” means?

    Milhouse (d84b40)

  29. Oops, it seems that I’m the one who misunderstood the apportionment requirement.

    Milhouse (d84b40)

  30. Somehow I’d got the impression that the apportionment requirement meant that if Congress collected a poll tax or other direct tax it had to give the proceeds to the states, rather than keep them for itself. Thus it could act as the states’ tax collector, but the slave states would lose out in the distribution because their census numbers were lower than their true population. I see now I had that backwards.

    Milhouse (d84b40)

  31. “Daley, you called direct taxes “illegal”.”

    Milhouse – I was making no distinction between direct and indirect until you brought up the difference. I was merely referencing taxes on income. I was indifferent on source based on my recollection.

    daleyrocks (479a30)

  32. Milhouse – I think we were just talking past each other. You at a detail level I was not.

    daleyrocks (479a30)

  33. Repeating SPLC lies is about the level of lack of integrity I expect from TinkleProgress.

    SPQR (26be8b)

  34. milhouse

    > To tax income derived from property.

    But the amendment is not so limited. it taxes income from any source.

    Aaron Worthing (e7d72e)

  35. The amendment doesn’t tax anything. It says that income taxes are to be treated as indirect no matter what crazy argument a Supreme Court might accept that they are direct. But no such argument has ever been made about a tax on wages. It’s hard to think what argument could be made, unless slavery were to be reintroduced.

    Milhouse (d84b40)

  36. milhouse

    well, you are technically right. it doesn’t tax. but it authorizes congress to tax. specifically it says:

    > The Congress shall have power to lay and collect taxes on incomes, from
    whatever source derived, without apportionment among the several States, and
    without regard to any census or enumeration.

    this is not just limited to allowing congress to tax income derived from property.

    Aaron Worthing (e7d72e)

  37. I’m going to be contrarian here.

    I think Obamacare and the mandate fall well within the allowable parameters of 20th century case law regarding Congressional powers, those precedents having stretched the commerce and necessary and proper clauses well beyond anything that can pretend to be limited government.

    That does not mean that the Supreme Court will uphold Obamacare. But if they do find it unconstitutional, they are going to have to, if not explicitly overturn, at least severely undercut, those precedents. I’m all for that, but I don’t think they do it.

    I am, I’m pretty sure, rather more radical than most of the rest of the people here. I think that before all is said and done, if we are going to return to a country in which limited government is a reality and not merely pious words (and of course there is much virtue in an If), we’re going to have get rid of almost the entire system, including the Constitution, and substitute something else that puts a much weaker and much more explicitly limited government in place.

    kishnevi (d02cdb)

  38. At this point, the issue is to see, whether Wickardand Heart of Atlanta Hotel, really stretch to incompass something like a health care mandate, let’s not overcomplicate things here

    narciso (e888ae)

  39. narc

    well, heart of atlanta is not such a horrible case. this was a hotel catering to travelers who most of the time were traveling interstate. wickard is the wicked one, if you pardon the pun.

    Aaron Worthing (e7d72e)

  40. Well it was ‘the stitch in time, that saved nine’
    as the story goes, wickard is the true culprit, I agree.

    narciso (e888ae)

  41. Aaron, the 16th amendment is a reaction to a bad Supreme Court decision. Until Pollock nobody imagined that taxes on rents, dividends, and interest would be considered direct taxes. The Supreme Court decided otherwise, and struck down the tax on those kinds of income. It left the tax on wage income intact. To restore things to the way they had been before, Congress and the states amended the constitution. So its language covers all bases. If one day someone comes up with a crazy argument for why a tax on wages should be considered a direct tax, the court won’t hear it, because the 16th says it doesn’t matter any more. But so far nobody has come up with any such argument.

    In my opinion the argument the Court did buy, with regard to property-derived income, is absurd. Those aren’t direct taxes either, and so the 16th is completely unnecessary. I don’t believe today’s Court would give that argument the time of day. Nevertheless, the fact is that the Court of the day did accept the argument, so the amendment was necessary at the time.

    Milhouse (d84b40)

  42. Interesting about the history of the 16th, seeing as the history of taxation in this country was based
    on the tariff, except for the ’emergency’ of the Civil War,the government then as now, will not take
    skimp on revenue.

    narciso (e888ae)

  43. Narciso @38 and Aaron at @39

    Well said.

    I think, incidentally, Wickard is directly on point: the farmer there was penalized for not selling/buying wheat to/from others–he was penalized for not engaging in an economic activity. Or alternately, you can say he was penalized for self insuring himself in a manner similar to someone who wants to self insure their own health insurance (self insure in his case meant providing himself with his own wheat).

    So the question is, will Justice Kennedy have the courage of Judge Vinson’s convictions? I remain dubious, but am willing to be pleasantly surprised.

    kishnevi (d02cdb)

  44. I’m dubious, too, Kennedy’s first instinct to go ‘splunge’ that was the purpose of the attack on Bork

    narciso (e888ae)

  45. Wickard is directly on point: the farmer there was penalized for not selling/buying wheat to/from others–he was penalized for not engaging in an economic activity.

    Wrong. He was penalised for growing his own wheat. Had he chosen to do without wheat he’d have been fine.

    Milhouse (d84b40)

  46. Wickard is directly on point: the farmer there was penalized for not selling/buying wheat to/from others–he was penalized for not engaging in an economic activity.

    Wrong. He was penalised for growing his own wheat. Had he chosen to do without wheat he’d have been fine.

    Either way – the holding in Wickard was wrong

    Joe (6120a4)

  47. Wrong. He was penalised for growing his own wheat. Had he chosen to do without wheat he’d have been fine.

    Comment by Milhouse

    Dude. Relax. Kishnevi knows that. He’s just saying it in a somewhat different way. Wickard was self-wheat providing, similar to someone who is self insured.

    It’s an interesting way to look at it.

    Dustin (b54cdc)

  48. But not a useful way. Filburn (not Wickard) was not required to buy anybody’s wheat; he was simply forbidden from growing more than his assigned quota. It was his choice to use more than he was allowed to grow.

    The entire point of Vinson’s objection to Obamacare is that it purports to regulate inactivity. The law that Filburn violated did no such thing.

    Milhouse (d84b40)

  49. …and indeed the courts have regularly cited Bush v. Gore as precedent in about two hundred cases, according to Fastcase and even more according to Google.

    Yeah, because citing a case in a court opinion means that the court is using it as precedent.

    What a deceptive dweeb.

    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.

    That’s a silly semantical argument. Tellingly, only you seem to be making it.

    Stripped to its essence, you’re basically saying “Although the Constitution gives Congress has the power to do X, Y, and Z, the Necessary and Proper Clause does not give Congress any authority to SUCCESSFULLY execute its X, Y, and Z powers”.

    That is, bluntly, dumb. Even Scalia (in Raich) recognizes that the federal government has powers under the Necessary and Proper Clause which enable it to take actions as necessary so as not to “undercut” a larger regulatory scheme.

    You haven’t dealt with Raich, or Lopez, or most recently, Comstock, which states:

    Accordingly, the Necessary and Proper Clause makes clear that the Constitution’s grants of specific federal legislative authority are accompanied by broad power to enact laws that are “convenient, or useful” or “conducive” to the authority’s “beneficial exercise.”

    [citations omitted] If Vinson would admit that the individual mandate is convenient or conducive to the overall healthcare legislation.

    Kman (d30fc3)

  50. Kman, you keep assuming your premise.

    Not impressive.

    SPQR (26be8b)

  51. Kmart is a booger eating dweeb. And a fundamentally dishonest one at that. Why, he doesn’t even need to read a book to get an A on a test about it. True.

    JD (109425)

  52. Kman

    > Yeah, because citing a case in a court opinion means that the court is using it as precedent.

    Feel free to prove none of them did cite it as such.

    > Stripped to its essence, you’re basically saying

    Actually stripped to its essence, i said the 180 degrees opposite of what you said.

    Which raises the usual question with you. are you dishonest… or really, really dumb? Because if you are lying, it is a really stupid lie.

    But contrary to what you claim it is not enough to claim that necessity is in the air, but that it is necessary to bring the other powers “into execution.” that’s the constitution’s words, not mine.

    Aaron Worthing (e7d72e)

  53. But contrary to what you claim it is not enough to claim that necessity is in the air, but that it is necessary to bring the other powers “into execution.” that’s the constitution’s words, not mine.

    Yes, but the clear meaning is to bring those other powers into execution SUCCESSFULLY…. and courts have recognized that for years

    In any event, you can name-call all you like, but it’s never going to obscure your failure to address the point I’ve raised, and will — for your convenience — raise again:

    Accordingly, the Necessary and Proper Clause makes clear that the Constitution’s grants of specific federal legislative authority are accompanied by broad power to enact laws that are “convenient, or useful” or “conducive” to the authority’s “beneficial exercise.”

    THAT is why the individual mandate is constitutional.

    How do you get around that? Are you suggesting the Court should overturn itself…. from a decision made six months ago?!?!?

    Kman (d30fc3)

  54. Did anyone else picture kmart stomping its widdle feet when it typed that?

    JD (0d2ffc)

  55. broad power to enact laws that are “convenient, or useful” or “conducive” to the authority’s “beneficial exercise.”

    Wow. That’s awfully vague. Seems like it’s not really explaining where the line is. If, in fact, anything useful is constitutional, then we don’t really have a constitution anymore.

    It’s amazing just how dishonest Kman can be.

    Dustin (b54cdc)

  56. kman

    > but the clear meaning is to bring those other powers into execution SUCCESSFULLY

    and you are definining “successful” in terms of the economic effects of it. but that is not supported by the language of the constitution. and no, that is NOT how the S.C. has defined that clause. that isn’t even what they are saying in the quoted section.

    i mean by that logic, we can ban abortion right?

    after all, social security is constitutional, right?

    But social security is going bankrupt. Why? Because there are [too] few workers supporting too many beneficiaries. Why? BECAUSE WE AREN’T HAVING ENOUGH BABIES. so by your logic, it is NECESSARY and proper to ban abortion, birth control, homosexuality and so on. heck, it is even constitutional to legalize marital rape, right? because all of them rationally would increase the number of babies and save us from the economic disaster looming in social security.

    Do you start to see how dangerous this doctrine really is?

    no, of course not. Because just like with Fair v. Rumsfeld–where you were proven wrong by a unanimous Supreme Court–all you care about is winning the issue in front of you and not the larger principle involved. it is because you fundamentally don’t care about principles, that you fail.

    oh, that and your dishonesty or stupidity, whichever it is.

    [typos corrected. D’oh!]

    Aaron Worthing (e7d72e)

  57. heck, it is even constitutional to legalize marital rape, right? because all of them rationally would increase the number of babies and save us from the economic disaster looming in social security.

    Why just marital rape? The same argument would justify legalising all rape, and even making it mandatory, in order to maximise the birth rate.

    Milhouse (d84b40)

  58. btw, riddle me this, kman.

    We have a right to wage war. We had a right to wage war against Japan.

    While most japanese americans were good patriots, I think there was almost certainly at least one or two bad apples.

    So… it was, in some sense of the word, useful to round up all japanese americans and put them into internment camps. so explain to me why according to you the necessary and proper clause wouldn’t have justified internment?

    And do not make any arguments based on precedents that occurred after 1945.

    Again, do you see how dangerous your proposed approach is?

    Aaron Worthing (e7d72e)

  59. that isn’t even what they are saying in the quoted section.

    If you feel that way, then address what they ARE saying in the quoted section (from Comstock, which I’ve quoted twice)

    But social security is going bankrupt. Why? Because there are two few workers supporting too many beneficiaries. Why? BECAUSE WE AREN’T HAVING ENOUGH BABIES. so by your logic, it is NECESSARY and proper to ban abortion, birth control, homosexuality and so on. heck, it is even constitutional to legalize marital rape, right? because all of them rationally would increase the number of babies and save us from the economic disaster looming in social security.

    Do you start to see how dangerous this doctrine really is?

    Well, the reasons for social security supposedly going bankrupt are far more complicated than “we’re not making enough babies”, and the solutions are certainly more varied than “making more babies”. But I’m not going to get diverted into an argument about SS, since you’re clearly not up to speed on that.

    Secondly, you’re making a political argument — a bad, hyperventilating political argument — and NOT a legal argument. It’s that slippery slope thing again (as in “let gays marry, and pretty soon I’ll be forced to marry a goat”).

    The thing is that we have already had — for decades — a broad and expansive interpretation of the Necessary and Proper Clause (endorsed by Scalia and Roberts among others), and curiously, the evils of which you speak are nowhere to be found.

    Put another way, you’re grasping.

    On a final note, it’s those on the right who only care about “winning the issue in front of them and not the larger principle involved”. The individual mandate was a REPUBLICAN idea, one co-opted by Obama. I honestly think that’s the reason you (and many others) don’t like it now — simply because it came during the Obama Administration.

    If this were the Bush Administration, you would clearly see that freeloaders who wait until they get sick before they buy health insurance are a drain on the whole system, AND IT COSTS EVERYBODY ELSE.

    But, it’s “Obamacare”, and for that reason, it’s “baaaaaaad”

    Kman (d30fc3)

  60. If inactivity is deemed activity, and the government can force you to purchase an approved product from private companies, what would the government not be able to do?

    JD (822109)

  61. Kmart is trotting out all of its soros talking points today. Brava.

    JD (6e25b4)

  62. Kman, why is it that people think that repeating the canard about the “mandate” being a Republican idea thinks that that argument convinces us that it is constitutional? (Some of us actually remember that Hillary Clinton was castigated for the mandate concept by President Obama – even if Democrats want to forget inconvenient history and misrepresent it)

    Can’t have anything to do with good faith. That’s for sure.

    SPQR (26be8b)

  63. So… it was, in some sense of the word, useful to round up all japanese americans and put them into internment camps. so explain to me why according to you the necessary and proper clause wouldn’t have justified internment?

    Well, you answer your own question with your hedging “in some sense of the word”. Obviously, there is a sense of reasonableness — that the statute in question (the one being evoked under Necessary & Proper) must be reasonable adapted to the aim of the overall regulatory scheme.

    “Reasonable adapted” is a concept preceding Karamatsu (or however it’s spelled), which (sadly) was not applied very well in that particular case. That’s why we don’t solve the health care problem by shooting people as soon as they enter the ER, or fix social security by allowing marital rape.

    Kman (d30fc3)

  64. SPQR:

    Kman, why is it that people think that repeating the canard about the “mandate” being a Republican idea thinks that that argument convinces us that it is constitutional?

    I wasn’t making a CONSTITUTIONAL argument at that point (That should have been obvious).

    Kman (d30fc3)

  65. You weren’t makiny ANY argument, kmart. You were being your normal mendoucheous self.

    JD (6e25b4)

  66. Kman, that leaves snark. Which frankly, is all we’ve gotten from you.

    SPQR (26be8b)

  67. Well then, if Congress has the power to tax incomes sans the 16th-A, why don’t we repeal it and let the Internal Revenue Code continue unabated, and thrust another issue unto the Courts to deliberate upon?

    BTW, wasn’t there an issue during the Great Unpleasantness of the 1860’s about an “income tax”, and SCOTUS’ determination that it was not permitted?

    AD-RtR/OS! (b8ab92)

  68. Kman

    > then address what they ARE saying

    Asked and answered. repeatedly. Move on.

    > Well, the reasons for social security supposedly going bankrupt are far more complicated than “we’re not making enough babies”, and the solutions are certainly more varied than “making more babies”

    It isn’t the only solution, but it’s A solution.

    > Secondly, you’re making a political argument — a bad, hyperventilating political argument — and NOT a legal argument. It’s that slippery slope thing again (as in “let gays marry, and pretty soon I’ll be forced to marry a goat”).

    The implications of the precedents you are setting is quintessentially a legal argument, you ninny.

    > The thing is that we have already had — for decades — a broad and expansive interpretation of the Necessary and Proper Clause (endorsed by Scalia and Roberts among others), and curiously, the evils of which you speak are nowhere to be found.

    Not THAT broad.

    > The individual mandate was a REPUBLICAN idea, one co-opted by Obama.

    Right, like John Adams supported the mandate, too, right?

    > Obviously, there is a sense of reasonableness — that the statute in question (the one being evoked under Necessary & Proper) must be reasonable adapted to the aim of the overall regulatory scheme.

    Lol so you are saying it would fail the rational basis test?

    Fail!

    Aaron Worthing (e7d72e)

  69. Obviously, there is a sense of reasonableness — that the statute in question (the one being evoked under Necessary & Proper) must be reasonable adapted to the aim of the overall regulatory scheme.

    Lol so you are saying it would fail the rational basis test?

    No. I’m saying what I’m saying (in English). I’m saying that the idea to imprison all people of Japanese origin in WWII was not reasonably adapted to some constitutional exercise of Congress’ power. It not reasonably adapted — in fact, it was overkill.

    The same cannot be said for the individual mandate, which everybody (even you) acknowledges is necessary for the changes in health care law, changes which ARE constitutional under the Commerce Clause.

    Kman (d30fc3)

  70. That’s the same level of unseriousness as your usual comment, Kman.

    SPQR (26be8b)

  71. kman

    lol then you don’t know it is rational basis. lol

    And according to you, the word “carrying into execution” does nothing at all?

    Why is it there, then? i mean it is literally and directly modifying the phrase “necessary and proper.”

    Judge Vinson’s differential between the means and the ends, pays honor both to mccullough, to the language of the N&P clause, and to recent precedent. You would unchain our constitution and basically do away with the concept of a limited government. you would write the 10th and 9th amendments out of the constitution entirely. All because you really, really want obamacare.

    ah, but why do i bother? you’re the same guy who thought a tax on sailors was the same as requiring you to buy private insurance.

    Aaron Worthing (e7d72e)

  72. Not to mention, Aaron, that in Kman’s world the courts have business criticizing the measures that Congress takes to secure a potential war zone but not the measures Congress takes to force its citizens to buy insurance.

    Just unbelievable.

    SPQR (26be8b)

  73. > Just unbelievable.

    Indeed it is, my Roman Senator friend. :-)

    (See, Dustin you learn all kinds of interesting things from playing Assasin’s Creed: Brotherhood.)

    Aaron Worthing (e7d72e)

  74. What would the government not be allowed to do in your little fantasy world, kmart? Mandate the purchase of homes to eliminate homelessness? Mandate the purchase of food to avoid hunger?

    JD (6e25b4)

  75. ** sigh **, and here I’m hoping people recognize my nick from reading Gibbon.

    SPQR (26be8b)

  76. I’ve never seen anyone who claims that Obamacare is constitutional ever attempt to explain what is outside of Congress’ commerce clause authority.

    Until you can do that, you can’t seriously criticize Vinson’s opinion. If you claim that there is nothing outside of the commerce clause power, you are advocating the destruction of our Constitution.

    SPQR (26be8b)

  77. Well see, ‘Pete’ Stark was right, Congress can do anything it wants to do.

    AD-RtR/OS! (b8ab92)

  78. And according to you, the word “carrying into execution” does nothing at all?

    No, I think the phrase means a lot! It means the founders wanted Congress to be successful at “carrying into execution” the laws that enact.

    For example, Congress has the power to coin money. It’s right there in the Constitution. And passed laws to create mints and so on.

    But those laws — indeed the whole POINT of coining money — is useless unless you forbid citizens from making exact duplicates (i.e., counterfeiting). So counterfeiting is made illegal, and people are sent to jail for it. It is a necessary and property corollary to Congress’s power to coin money.

    You see how that works?

    Judge Vinson’s differential between the means and the ends, pays honor both to mccullough, to the language of the N&P clause, and to recent precedent.

    “Pays honor”. LOL — that’s a good way to put it. Because you can’t say that he actually FOLLOWS the law and recent legal precedent. He just doffs his hat to it as passes.

    you’re the same guy who thought a tax on sailors was the same as requiring you to buy private insurance.

    Dishonest debating again. Never said it, never thought. Something beyond your capabilities apparently.

    Kman (d30fc3)

  79. That was hilarious.

    SPQR (26be8b)

  80. Kmart – in your unicorn and fairy world, what actions of the government would fall outside the boundaries of the commerce clause? What would you not allow the government to do? Where would you draw the line? Penalize people for not purchasing American made products? For not puchasing GM or GE stock? Fine them for not buying a house?

    JD (d48c3b)

  81. I’ve never seen anyone who claims that Obamacare is constitutional ever attempt to explain what is outside of Congress’ commerce clause authority.

    There’s lots of things, but Lopez is a good example of something Congress did that was/is outside its commerce clause authority.

    Now you can’t say that anymore.

    Kman (d30fc3)

  82. JD:

    Kmart – in your unicorn and fairy world, what actions of the government would fall outside the boundaries of the commerce clause?

    Are you serious?

    You want to talk about banning abortion? Marriage rights? Privacy rights? There are TONS of things Congress cannot do under the commerce clause, or ANY clause.

    Where would you draw the line? Penalize people for not purchasing American made products? For not puchasing GM or GE stock? Fine them for not buying a house?

    I draw the line the same place most people do — at individual freedom. But an individual’s freedom ends when it affects someone else’s.

    And this is where you guys on the right go wrong. You think that peoples’ decisions NOT to get health insurance acts inside some bubble and it doesn’t affect anybody else. But it does.

    Freeloaders still use the health care system, but who ends up “paying” for their health care? Anyone who is reading these words, who HAS health insurance, is — right now — subsidizing the health care costs of those who choose not to be insured.

    Kman (d30fc3)

  83. That is absolute BS. If I choose to not carry insurance, but can pay for our healthcare out of pocket, I do not affect anyone. Nice army of straw people you spit out. Well done. Soros is getting a lousy return on his investment with the likes of you.

    JD (d4bbf1)

  84. There is no individual freedom in anything that kmart and it’s ilk advocate, not unless you redefine freedom to mean government control, and inaction to mean action. It is truly bizarro world.

    JD (d4bbf1)

  85. If I choose to not carry insurance, but can pay for our healthcare out of pocket, I do not affect anyone.

    JD, you’re not thinking this through.

    How do you KNOW that you can pay for your healthcare out of pocket?

    What will you pay for it next week…. and suppose you get into a debilitating car accident tomorrow?

    [And having said that, please drive safely… I wouldn’t want to think I jinxed ya!]

    Kman (d30fc3)

  86. That is a patently silly position to take, kmart, so it is not at all surprising that it comes from you.

    JD (d4bbf1)

  87. That is a patently silly position to take, kmart, so it is not at all surprising that it comes from you.

    I’ll take that as a concession of my point.

    Kman (d30fc3)

  88. Kman

    > It means the founders wanted Congress to be successful at “carrying into execution” the laws that enact.

    Oh, its not a limitation. It in fact expands their power! Seriously, are you smelling your argument?

    > It is a necessary and property corollary to Congress’s power to coin money.

    Yes, in other words, it is necessary and proper to carry the power to coin money into execution that they must also 1) require people to take it as legal tender, 2) punish the defacing or destruction of money and 3) punish the counterfeiting of money. Because the power to coin money is meaningless without the ability to protect its value.

    By comparison the power to end discrimination based on pre-existing conditions can be passed and be fully functional and meaningful with or without a mandate. It is just a REALLY, REALLY bad idea without some kind of financial offset. The mandate is not the means by which the pre-existing condition rule is executed. It is how they are going to avoid the financial disaster that their proposed rule would create.

    And its worth noting that it also isn’t very rationally adopted to the ends, by the way you define it (as your backdoor way to drag in strict strutiny). They are going to require a single man to purchase $7K of insurance, or force him to pay $4K as a penalty. Which means they are really not getting this concept of “incentive.” Worse, the penalty for a company not having insurance is only $1,200. Often family plans cost a company $24K. how many companies are going to keep their coverage under that circumstance?

    > Because you can’t say that he actually FOLLOWS the law

    Yes I can. He did. you just don’t understand the law. What you guys are trying to do is unprecedented.

    > [me] you’re the same guy who thought a tax on sailors was the same as requiring you to buy private insurance.

    > [you] Dishonest debating again. Never said it, never thought.

    Well, maybe you “never thought.” But you did “say” it, in writing that is. Here: http://patterico.com/2011/01/31/breaking-florida-federal-judge-rules-that-obamacare-is-unconstitutional/#comment-749263

    See comment 11. Cut and paste is a b—-h, ain’t it?

    Oh, wait, maybe you don’t actually read your own comments either?

    SQPR

    > ** sigh **, and here I’m hoping people recognize my nick from reading Gibbon.

    Lol, sorry to disappoint.

    Aaron Worthing (e7d72e)

  89. Nope, no concession. Just pointing out that you are an imbecile.

    JD (d4bbf1)

  90. Oh, its not a limitation. It in fact expands their power!

    Yes. This may come as a surprise to you, but Article 8 actually does set out POWERS of Congress, not limitations.

    By comparison the power to end discrimination based on pre-existing conditions can be passed and be fully functional and meaningful with or without a mandate.

    That’s nice except that the “pre-existing discrimination” isn’t the sole issue being addressed by the individual mandate, nor is it the main one. The idea is to get low-risk people into the insurance pool, thus lowering the average costs for all — including (by the way) the insurer.

    And its worth noting that it also isn’t very rationally adopted to the ends, by the way you define it (as your backdoor way to drag in strict strutiny). They are going to require a single man to purchase $7K of insurance, or force him to pay $4K as a penalty….

    Where do you get these numbers? There’s no typical “single man” cost. And you’re totally forgetting about tax breaks to companies. So NOW you’re just pedaling disinformation.

    P.S. When someone makes periodic payments as a form of protection in the future event that they might need health care, than that person is, by definition, taking on health insurance. The seaman scheme does not look like health insurance as we are accustom to it today, but it IS “insurance”, and only your bias and myopia prevents you from seeing that.

    Kman (d30fc3)

  91. Kmart is consistent.

    JD (d4bbf1)

  92. Kman

    > This may come as a surprise to you, but Article 8 actually does set out POWERS of Congress, not limitations.

    So according to you, if the founding fathers had instead written “To make all Laws which shall be necessary and proper” without the phrase “for carrying into execution the forgoing powers” this would have REDUCED federal power.

    Jeez you are dumb.

    And yes, Article 1, Sec. 8 does create powers, but those powers are limited in part by their own language. for instance, congress is not granted the power to regulate commerce, but only INTERSTATE commerce, and international commerce.

    > That’s nice except that the “pre-existing discrimination” isn’t the sole issue being addressed

    Yes, they have put a ton of other rules in place that would also wreck the insurance industry. I just don’t feel like listing all of them at this time.

    > The idea is to get low-risk people into the insurance pool, thus lowering the average costs for all

    Oh, so forcing people to buy a thing lowers the price of it. who knew? You know it increases the consumer’s market power when they can’t refuse to buy, right?

    > Where do you get these numbers?

    I work for a health care company, remember?

    > When someone makes periodic payments as a form of protection in the future event that they might need health care, than that person is, by definition, taking on health insurance. The seaman scheme does not look like health insurance as we are accustom to it today, but it IS “insurance”, and only your bias and myopia prevents you from seeing that.

    So first you didn’t say that and I was dishonest for suggesting it. Now I am silly for not agreeing with your sentiment, which is the most dishonest claim I have seen since obama claimed that raising my taxes was a form of “spending.”

    Aaron Worthing (e7d72e)

  93. How do you KNOW that you can pay for your healthcare out of pocket?

    So the government is going to make me buy insurance for my mortgage, my food bill, my utility bills, my clothing bills, and my porn bills?

    Because my failure to have health care insurance affects no one – except for the fact that the government decided to intervene in paying my health care costs. That the world of busybodies decided to stick their nose in my affairs did not mean that my conduct affected them. This has always been a fraudulent argument created by assuming that there was some Constitutional obligation to provide health care to everyone.

    Completely fraudulent argument.

    SPQR (26be8b)

  94. Freeloaders still use the health care system, but who ends up “paying” for their health care? Anyone who is reading these words, who HAS health insurance, is — right now — subsidizing the health care costs of those who choose not to be insured.

    I went several years without insurance. I paid for my own doctors visits and eyeglasses and medicine out of pocket. Like most young men, I saved a lot of money this way.

    I would like to have catastrophic coverage, and continue doing things this way until I’m older. I’m not a freeloader… it’s just that democrats like Kman hate personal freedom. Of course, democrats like Kman lie that they do this in the name of freedom, much as they lied about freedom of speech before they realized they were losing the general argument about government.

    Sad.

    Dustin (b54cdc)

  95. So according to you, if the founding fathers had instead written “To make all Laws which shall be necessary and proper” without the phrase “for carrying into execution the forgoing powers” this would have REDUCED federal power.

    No, although I see you’re back to your tactic of winning debates by putting words in other people’s mouths. Good for you, sport!

    Yes, they have put a ton of other rules in place that would also wreck the insurance industry. I just don’t feel like listing all of them at this time.

    Ah. Now we’re getting at your objection. Not based on law at all, as I suspect.

    The truth is, the insurance industry isn’t as against this as you think. After all, it’s millions more customers.

    Oh, so forcing people to buy a thing lowers the price of it. who knew?

    Oh dear, oh dear, oh dear. You really don’t understand the concept of risk pools.

    That’s okay. A lot of people don’t. I just assumed you would, since you like to opine on the subject.

    I work for a health care company, remember?

    I do, but that doesn’t mean that Obama care is “going to require a single man to purchase $7K of insurance, or force him to pay $4K as a penalty…”

    That’s not in the Affordable Care Act. That’s crap that probably came across your desk in some industry brochure.

    SPQR:

    Because my failure to have health care insurance affects no one….

    Well, even the judge disagrees with you there, SPQR. In the aggregate, it does.

    It’s like the example of inoculation. If there is a killer disease out there, and the government requires everyone to get inoculated, it’s true that YOUR decision not to get inoculated probably won’t have any effect on anyone else one way or another. But if EVERYONE had that attitude and took that course of action, then the inoculation program doesn’t work and people die.

    That’s a pretty tough concept for selfish people to understand; it comes easier to others.

    Kman (d30fc3)

  96. Kman, still fraudulent claim on your part. My decision not to obtain health insurance affects no one until society decides that it wants to guarantee free care.

    Being destitute is not contagious like a disease except to troll liberals.

    SPQR (26be8b)

  97. Notice that Kman still can’t articulate a limit to the Commerce Clause power consistent with his claim that Obamacare is constitutional.

    SPQR (26be8b)

  98. So, now you are selfish if yu do not want the government to be allowed to force you to buy an approved product from a private company. You asshattery knows no bounds, kmart. And your BUNNIES act has been old since the first time you trotted it out. Point and laugh, people. Mock and scorn.

    JD (d4bbf1)

  99. I went several years without insurance. I paid for my own doctors visits and eyeglasses and medicine out of pocket. Like most young men, I saved a lot of money this way.

    I would like to have catastrophic coverage, and continue doing things this way until I’m older. I’m not a freeloader…

    Yeah, I was “off the grid” for a year or two myself…. many years ago.

    But here’s what you don’t seem to get: were it not for the health insurance system, our doctors visits, etc. would have cost us more.

    So yes, we were benefiting from a system that we were not contributing to. I know it doesn’t SEEM that way, but that’s just economics.

    Kman (d30fc3)

  100. Notice that Kman still can’t articulate a limit to the Commerce Clause power consistent with his claim that Obamacare is constitutional.

    Lopez, for about the 20th time.

    Kman (d30fc3)

  101. Kman, now you are just making up “economics” that don’t exist.

    SPQR (26be8b)

  102. Kman

    > No

    Well, the question was whether or not the clause “carrying into execution” imposed a limitation on the N&P clause. So I guess your reading comprehension failed you as usual.

    So what did you mean to say, then? What does adding those words “carrying into execution” to the N&P clause do?

    > I see you’re back to your tactic of winning debates by putting words in other people’s mouths.

    Given that you just accused me lying about what you said only to turn around and fully admit to what you said, I will take that as seriously as it deserves to be.,

    > Ah. Now we’re getting at your objection.

    Its also the basis of your argument. But for the mandate, the industry would be wrecked. So “ta-da!” it is necessary. And it is, just not necessary to carry the other provisions into execution.

    > The truth is, the insurance industry isn’t as against this as you think.

    You can bet they are against having obamacare without the mandate.

    > You really don’t understand the concept of risk pools.

    I understand risk pools. I just don’t know why you are so naïve as to think that this would be the determining factor on cost if we couldn’t say no.

    > but that doesn’t mean

    No, it doesn’t. but I means I know more than you. I work in a real business, not just some law office.

    > That’s a pretty tough concept for selfish people to understand; it comes easier to others.

    In china they depict a respect for individual rights as selfishness, too.

    Aaron Worthing (e7d72e)

  103. Comment by SPQR — 2/3/2011 @ 11:42 am

    I recognized it from reading Ben-Hur and assorted novels by Frank Yerby, Thomas Costain, and their ilk. And I, Claudius.

    From which I went on to Suetonius, Horace, and Machiavelli’s Discourses on Livy.

    Not to mention Petronius Arbiter, but I’m not sure you want to mention him in polite company.

    Make you feel better?

    In re Kman:
    Remember when arguing with him that he accepts modern constitutional theory and case law, and with it the implication that if the written text of the Constitution doesn’t forbid it, it’s within the power of the government to do so.
    Under that theory, there really are no limits to Congress’s powers, which is why they can’t present you with an answer to your question about what limits do exist.

    Obviously, pretty much the rest of us (excluding timb, Yelverton, etc.) don’t accept that.
    Apparently neither does Judge Vinson. Which is why I think that if SCOTUS upholds his ruling (unless they find a really technical reason to reach the same result, which is of course well within the realm of possibility), we may see the start of constitutional law throwing out most of the 20th century case law (from Wickard on, at least) and reverting to the standards of a century ago. (And I think that fact will work in favor of the SCOTUS upholding Obamacare.) Which Kman won’t like, but I think the rest of us will.

    kishnevi (6b8d7f)

  104. Kman, using a case name when you’ve obviously never read the case is not a response. Lopez is “wrong” under the standards you have articulated here for what makes Obamacare constitutional. You can’t even troll consistently.

    SPQR (26be8b)

  105. Unicorn and fairy dust economics work quite well in kmart’s pointy little head.

    JD (d4bbf1)

  106. Indeed, JD, and he seems ignorant of the fact that the reason SCOTUS overturned the firearms prohibition in Lopez was because Congress did not even bother to include findings establishing a tissue of a commerce clause linkage. Nor could Kman correctly described what happened to that statute after Lopez.

    SPQR (26be8b)

  107. kish

    i would be curious by what you mean with this line.

    > unless they find a really technical reason to reach the same result, which is of course well within the realm of possibility

    As for the theory that wickard will get thrown out, no, that won’t happen for a while. mind you, i think it should happen. but gonzales v. raich pretty much affirmed it.

    Aaron Worthing (e7d72e)

  108. What does adding those words “carrying into execution” to the N&P clause do?

    It wasn’t “added” to the N&P clause as there was no existing N&P clause.

    But to answer your question, it’s there because if you read the N&P without it, it doesn’t make sense.

    But for the mandate, the industry would be wrecked. So “ta-da!” it is necessary. And it is, just not necessary to carry the other provisions into execution.

    Well, even under your argument, you can’t carry most of the other provisions “into execution” if the industry is “wrecked”. I mean, how can you bring health care reform “into execution” if the industries that comprise it have collapsed to nothingness?

    “Into execution” means “achieving the goals”.

    I understand risk pools. I just don’t know why you are so naïve as to think that this would be the determining factor on cost if we couldn’t say no.

    If you have to ask, then you don’t understand risk pools.

    Kman (d30fc3)

  109. Point and laugh. Mock and scorn.

    JD (d4bbf1)

  110. Aaron–
    I meant, ignoring the constitutional arguments and finding a technical reason to throw out Obamacare. Or least a reason that doesn’t involve deciding what the commerce clause and limited powers mean for the mandate. There have been plenty of cases where that’s happened. “We do not need to consider whether argument X is applicable here because even if the government is right on the issue, these other reasons mean it loses the case.”

    kishnevi (6b8d7f)

  111. Kman

    > if you read the N&P without it, it doesn’t make sense.

    Actually, it makes perfect sense, except in the sense that it vitiates any pretense of a limited constitution. But the problem is that you would have us read it exactly like as if any necessity would do.

    > you can’t carry most of the other provisions “into execution” if the industry is “wrecked”.

    So now this time you want to read “carrying into execution” as meaning, “so that people actually utilize the laws.” So if there are no health insurance companies, no coverage for pre-existing conditions. Sorry, nice try, though.

    Seriously, according to you congress can do whatever it wants to keep the health insurance industry from being wrecked. Suppose everyone in that industry decided to go “john galt” and quit. According to your theory, then, the government could force those people to go back to work whether they wanted to or not. And if no one volunteered to replace the workers who died or retired, then I guess the government could just start conscripting people, right?

    > “Into execution” means “achieving the goals”.

    Well, that isn’t what John Marshall thought:

    > 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.

    But I suppose you never read that case, have you? Indeed, do you even know what case I am quoting from? A competent lawyer would.

    Or take this line: “We have since made clear that, in determining whether the Necessary and Proper Clause grants Congress the legislative authority to enact a particular federal statute, we look to see whether the statute constitutes a means that is rationally related to the implementation of a constitutionally enumerated power.” You’ll recognize it if you read the cases you claim to have read.

    > If you have to ask, then you don’t understand risk pools.

    Jesus, you are stupid. Let me say this in words simple enough to understand. I AM NOT DISPUTING THAT THE INSURANCE COMPANIES WILL SAVE MONEY WITH THE MANDATE.

    I AM DISPUTING THAT THEY WILL PASS THOSE SAVINGS TO THEIR CUSTOMERS.

    Idiot.

    Aaron Worthing (e7d72e)

  112. 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.

    Yes! Exactly! You read a case on Necessary & Proper. Good for you, AW.

    This is why the individual mandate is constitutional under N&P.

    Or take this line: “We have since made clear that, in determining whether the Necessary and Proper Clause grants Congress the legislative authority to enact a particular federal statute, we look to see whether the statute constitutes a means that is rationally related to the implementation of a constitutionally enumerated power.” You’ll recognize it if you read the cases you claim to have read.

    Yes, again.

    Look what happened. You actually read a case and now you’re making my argument.

    Kman (26c32e)

  113. Oh good Allah.

    JD (d4bbf1)

  114. Law professor Jonathan Turley-no conservative he-had a piece in USA Today yesterday titled “Our Ford Pinto health care law takes a hit”. Did you read it, Kman? If not, you might want to.

    elissa (9efa48)

  115. Jesus Kman you are a moron.

    You cannot comprehend the difference between a goal or end, and a means to that end. You cannot comprehend the difference between implementation and execution, and mitigation.

    That is what the mandate does. It doesn’t execute provisions like the pre-existing condition. It mitigates its ill effects. And you are so dumb that you will NEVER understand that.

    The court’s opinions exactly lined up with what I have been telling you and you are too slow to comprehend.

    Elissa

    That is a very well written piece. it should throw some cold water on the screeching.

    Aaron Worthing (73a7ea)

  116. we look to see whether the statute constitutes a means that is rationally related to the implementation of a constitutionally enumerated power.

    Kman, take a good long look at that sentence.

    The N&P clause is irrelevant if the underlying power is not given to Congress by the Constitution.

    Arranging/imposing universal health care is not one of the powers given to Congress, explicitly or implictly.

    Therefore nothing Congress could do in furtherance of getting everyone health insurance is allowed, and nothing they enacted would be able to take advantage of the N&P clause.

    It’s as simple as that. So go away, because as long as you argue that Congress has the right to do it, you’ll be wrong.

    kishnevi (d785be)

  117. AW:

    You cannot comprehend the difference between a goal or end, and a means to that end. You cannot comprehend the difference between implementation and execution, and mitigation.

    That is what the mandate does. It doesn’t execute provisions like the pre-existing condition. It mitigates its ill effects. And you are so dumb that you will NEVER understand that.

    You’re pointing to the wrong goal, and you know it. You keep propping up the “pre-existing condition” as if it exists in isolation as the sole thing that the Affordable Care Act was trying to address.

    One of the goals — in fact, probably the primary goal — of the Affordable Care Act is to increase the number of Americans with health care coverage.

    The mandate is “plainly adapted” to that goal. It is “rationally related” to the implementation of that goal. Not the implementation of the statute, the implementation of the GOAL of the statute. Read Comstock again, which is only a few months old and specifically states that the N&P Clause grants Congress authority where:

    “the means chosen are reasonably adapted to the attainment of a legitimate end under the commerce power or under other powers that the Constitution grants Congress the authority to implement”

    Even the Vinson decision (among others) acknowledge that the Affordable Care Act is a legitimate exercise of Congress’ power under the Commerce Clause (sorry, kishnevi). It is therefore a “legitimate end”.

    And the means chosen are reasonably adapted to the attainment of it. In fact, as you admit (and so does the judge), the Affordable Care Act can’t succeed without the individual mandate.

    Talk about necessary and proper.

    Kman (d30fc3)

  118. Kman

    > You’re pointing to the wrong goal, and you know it. You keep propping up the “pre-existing condition” as if it exists in isolation as the sole thing that the Affordable Care Act was trying to address.

    > One of the goals — in fact, probably the primary goal — of the Affordable Care Act is to increase the number of Americans with health care coverage.

    You’re right I was failing to understand what you were saying, mainly because 1) that was NOT Sebelius’ argument and 2) it is so stunningly stupid and circular.

    You are confusing the goal of the legislation, versus the power being invoked. It has to be necessary to bring into execution a power. Congress is given the power to regulate commerce but not specifically to generate commerce. Generation of commerce is the hopeful byproduct of wise regulation, but the government can’t force you to generate commerce. They can’t force you to work, for instance, and that was probably true even without the thirteenth amendment.

    So your argument fails because it is not necessary to bring one of the powers into execution, but to pursue an ancillary goal (ancillary from a constitutional perspective).

    That is why the DOJ’s lawyers, who are evidently much smarter than you, didn’t even try such a lame thing.

    Sebelius’ argument goes like this. We have instituted certain insurance regulations. Those regulations will drive those insurance companies out of business. I harp on the pre-existing condition thing because it is most obviously related to the problem they are creating. In order to prevent that horrible outcome, of people waiting until they get sick to buy insurance, we need the mandate to mitigate the damage done. That is their argument.

    And the problem is, once again, its mitigation of a law, not execution of it. it executes just fine without the mandate, so well that it will drive the health insurance industry into the dirt.

    Aaron Worthing (e7d72e)

  119. So your argument fails because it is not necessary to bring one of the powers into execution, but to pursue an ancillary goal (ancillary from a constitutional perspective).

    Ancillary goal…. from a constitutional perspective?

    Article 8 is a list of powers, not goals. Sad that you don’t know the difference.

    According to your logic, Congress can regulate commerce with foreign nations under Article 8, but it can’t embargo goods from Cuba, because that’s an ancillary goal that isn’t based in the Constitution. Laughable.

    Your argument is a complete joke (one that even Marshall recognized back in 1819) because basically it means that (in my example above) Congress can never use its commerce-with-foreign-nation power to achieve a goal.

    With interstate commerce, Congress can regulate interstate commerce for any reason it chooses. The Constitution does not limit that power by limiting what that power can (and cannot) be used for. Congress can use its interstate commerce power for economic reasons, health & safety reasons (as Congress tried to do in Lopez), or whatever.

    That’s not to say that the interstate commerce power is limitless, but there’s nothing in the Constitution that says it is a power which can only be exercised for certain goals.

    Kman (d30fc3)

  120. And the problem is, once again, its mitigation of a law, not execution of it….

    Actually, not… because the “law” it supposedly mitigates IS PART OF THE SAME LAW.

    Your logic is like declaring that the automobile doesn’t work as a means of transportation, because if you look at the gas pedal and only the gas pedal, it alone won’t get the automobile from point A to point B.

    Kman (d30fc3)

  121. ^ lol

    Dustin (b54cdc)

  122. Kman

    > Article 8 is a list of powers, not goals. Sad that you don’t know the difference.

    marshall’s discussion of goals were discussing the powers that can be exercised. sad you don’t understand that.

    > Congress can regulate commerce with foreign nations under Article 8, but it can’t embargo goods from Cuba

    Not all. the term “regulate” can include “ban.” duh.

    Fail.

    > That’s not to say that the interstate commerce power is limitless

    Actually that is exactly what you are saying. you are saying that congress can force you to work. i suppose they can force you to work for a certain company even, right?

    And if it doesn’t why not? and please cite an argument that would have applied to the original constitution, including at most the original 10 amendments.

    Aaron Worthing (e7d72e)

  123. Just wait until kmart starts advocating forcing people to purchase other items. Homes. Cars. Xbox. For the common good. Even Barcky once knew this mandate was unconstitutional.

    JD (fc6858)

  124. btw, since you don’t bother to read before shooting your mouth off, here’s the fuller context of the quote:

    We admit, as all must admit, that the powers of the Government are limited, and that its limits are not to be transcended. But we think the sound construction of the Constitution must allow to the national legislature that discretion with respect to the means by which the powers it confers are to be carried into execution which will enable that body to perform the high duties assigned to it in the manner most beneficial to the people. 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.

    clearly anyone but a moron would understand that the judge was using the terms “ends” and “powers” interchangably. and the language of the constitution states that it must be necessary and proper to carry into execution the other powers granted in the constitution.

    But go on, explain to me again how congress had the right to force people to work.

    Aaron Worthing (e7d72e)

  125. JD

    actually, per my analysis in the post, i don’t think he was talking about constitutional law when he said he opposed the mandate.

    Aaron Worthing (e7d72e)

  126. Being the constitutional scholar and professor of Con Law that Teh One is, I would suspect that even he recognizes that the government cannot force people to purchase a product from a private company.

    William Yelverton (fc6858)

  127. Kman, a question: If you were not so personally ideologically in favor of Obamacare, and were just neutral, or like many of us here are, very opposed to the law which we feel was enacted in haste and without due rigor–would you still feel comfortable making the same “arguments” and applying the same “logic” on Constitutionality you are now?

    elissa (bd6524)

  128. Elissa – that constitution thingie is old and hard to understand so people like kmart and Ezra boy blunder just like to rewrite it in ways that give them tingles.

    JD (fc6858)

  129. Actually that is exactly what you are saying. you are saying that congress can force you to work. i suppose they can force you to work for a certain company even, right?

    And if it doesn’t why not? and please cite an argument that would have applied to the original constitution, including at most the original 10 amendments.

    First of all, why am I constrained to respond with an argument that would have applied to the “original constitution including at most the original 10 amendments”? Do we live in a country governed by a constitution with “at most” the original 10 amendments?

    Secondly, I can’t answer the question without the context. Can Congress force a person to work for a certain company? Give me a situation where such a law would be rationally adapted to achieve a legitimate (constitutionally permissible) end, and the answer would be “yes”. If you can’t, the answer would be “no”.

    Although the soldier providing security for private contractors building schools in Afghanistan might have some thoughts about this.

    clearly anyone but a moron would understand that the judge was using the terms “ends” and “powers” interchangably.

    Really?!? So you think “ends” and “powers” mean the same thing? The Constitution “confers” ends? Really?!?!? Bwaaaaahahahahahahaha!!!

    Have you stopped to really consider what you’re saying? Listen up:

    The Constitution confers powers to Congress, through which it achieves certain ends (or goals).

    For example, you don’t regulate foreign commerce (the power) merely for the sake of regulating foreign commerce (the end). You do it for some economic, political or moral end (e.g., raise revenue from import fees, punish a hostile nation by embargoing its goods, etc). Powers and ends are not the same thing, and the Constitution does not limit what the enumerate powers can be used for.

    Kman (d30fc3)

  130. And if you respond, AW, do it by citing an argument in Plato’s Republic.

    Kman (d30fc3)

  131. Kman

    > First of all, why am I constrained to respond with an argument that would have applied to the “original constitution including at most the original 10 amendments”?

    Because we are talking about the original understanding of that clause.

    > Can Congress force a person to work for a certain company? Give me a situation where such a law would be rationally adapted to achieve a legitimate (constitutionally permissible) end, and the answer would be “yes”. If you can’t, the answer would be “no”.

    Well, talk about lack of imagination. Okay, its 1804, and Congress decides that it wishes to pursue the goal of full employment, just as now according to you Congress wants to pursue the goal of everyone having insurance. So like requiring everyone to purchase insurance, congress requires everyone to get a job. Easy.

    Constitutional or not?

    > So you think “ends” and “powers” mean the same thing?

    If not, then Marshall misspoke. Feel free to go back and time and scold him. but the N&P clause is about powers, not “ends” as you have defined the term. read it again. er, wait, i mean read it for the first time. i doubt you have ever read it once enabling you to read it “again.”

    Aaron Worthing (e7d72e)

  132. Okay, its 1804, and Congress decides that it wishes to pursue the goal of full employment, just as now according to you Congress wants to pursue the goal of everyone having insurance. So like requiring everyone to purchase insurance, congress requires everyone to get a job. Easy.

    Constitutional or not?

    In 1804? During a time when involuntary servitude the law of (at least half) the land? A court could conceivably find that constitutional.

    But I still don’t understand why we’re placing this in 1804.

    This is about “Obamacare” which was passed under the law of today, and the Constitution as it exists today. It’s not even a good legal argument, unless you take the position that courts should ignore any and all precedent.

    Dustin and others:

    If the individual mandate is unconstitutional because it forces me to buy a product from a private company, wouldn’t the privatization of social security (a big GOP idea) be similarly unconstitutional?

    Kman (d30fc3)

  133. kman

    > A court could conceivably find that constitutional.

    i am not asking if a court could conceivably find that constitutional. i am asking you whether under the constitution as written at that time, that was constitutional.

    > the Constitution as it exists today

    The N&P clause existed in 1804, had the same words back then and the same meaning.

    I mean why would your “goal” of getting everyone to have health insurance be any less a valid goal in 1804?

    Aaron Worthing (e7d72e)

  134. You know I took a long look through all the Constitutional amendments, and I have never found one that stated that the Federal government was no longer one of enumerated powers. Nor one that stated that the commerce clause had no limit.

    SPQR (26be8b)

  135. In 1804? During a time when involuntary servitude the law of (at least half) the land?

    Translation: Squirrel!

    SPQR (26be8b)

  136. I can’t remember where I saw it but someone commented on today’s health care ruling out of Mississippi. Here’s an article on the ruling. It was dismissed without prejudice based on standing.

    DRJ (fdd243)

  137. i am asking you whether under the constitution as written at that time, that was constitutional.

    If I were there, I would argue no, but I could see how a court would rule against me. That’s my answer.

    Again, relevance?

    The N&P clause existed in 1804, had the same words back then and the same meaning.

    If the Constitution as it exists today has the same words and meaning as it did back in 1804, then why do you need to go back to 1804 to find out what it means? Why can’t you use the meaning as it exists today? It’s the SAME MEANING, according to you. So let’s talk about Raich and Comstock.

    No, you don’t want to do that, because you don’t like the meaning of N&P as it exists today. That’s why you WANT to drag the debate back to 1804.

    C’mon, A.W. You can’t have it both ways. Does the N&P Clause have the same meaning now as it did in 1804?

    Here’s the further problem of trying to discern the meaning of the N&P Clause as it existed 200 years ago. If you went back to the framers themselves, pointed to the N&P Clause, and asked each one of them individually, “What does this mean exactly?”, you’re NOT going to get the same answer. In fact, you would probably get sharp disagreements.

    That’s the problem with you originalists. You believe in the myth that everybody agrees on the meaning of words and concepts and would apply them in the same way.

    Those words mean what they have come to mean, as courts have explained them (and applied them) for the past 200 years. We don’t revisit what the words of the N&P Clause mean every time a case comes up that has the N&P Clause as its point of contention.

    But you don’t believe in precedent. You want justices to be unconstrained by precedent — a recipe for judicial activism if ever there was one.

    Kman (d30fc3)

  138. Kmart is arguing with itself. Again.

    JD (d4bbf1)

  139. The idea that following the constitution is judicial activism is laughable, and shows how patently unserious kmartand it’s ilk are.

    JD (d4bbf1)

  140. “…you are saying that congress can force you to work…”
    Is kmart so arrogant as to say that Congress can override the 13th-A and command slavery and/or involuntary servitude?

    Stupidity such as that must be painful.

    Joe Biden (b8ab92)

  141. It was dismissed without prejudice based on standing.

    Comment by DRJ — 2/4/2011 @ 12:47 pm

    Thanks for the link.

    It was Tim (Yelverton sockpuppet) who claimed a ‘Bush appointee’ upheld the constitutionality of Obamacare, but as DRJ notes, it was dismissed rather than judged either way.

    Standing is one of the aspects of our legal system that I have a difficult time with. I guess it’s just a practical way to avoid the entire system being flooded, but it’s hard to see how any citizen, state, or company lacks standing over Obamacare.

    Milhouse (b54cdc)

  142. In 1804? During a time when involuntary servitude the law of (at least half) the land?

    Democrats said blacks weren’t people, but chattel, so your counterexample is not legally sound, unless democrats are again saying someone isn’t a person for the purposes of forcing them to give up their freedom.

    And Kman said he supports Obamacare because he supports freedom, the day before he excuses it because we used to have slaves. What a kook.

    Milhouse (b54cdc)

  143. The last two were me.

    DAMMIT. My sincere apologies.

    Dustin (b54cdc)

  144. I think the rules on standing have been twisted into the convoluted pretzel that they are to allow the courts to avoid any controversy that they really don’t want to address, particularly if they see it as a “political issue”.

    AD-RtR/OS! (b8ab92)

  145. #140 was me, and I don’t apologize, because Joe Biden knows how painful stupidity is.

    AD-RtR/OS! (b8ab92)

  146. I think the rules on standing have been twisted into the convoluted pretzel that they are to allow the courts to avoid any controversy that they really don’t want to address, particularly if they see it as a “political issue”.

    It wasn’t that long ago when conservatives were against the idea of having political issues resolved by the courts. You know — it’s undemocratic and against the “will of the people” and all that.

    Ah, good times.

    Kman (d30fc3)

  147. It is the courts who decide what is, or isn’t, a “political issue” that they will not touch with a ten-foot pole, even if it is a matter of law.

    Conservatives, unlike the fools on the Left, are concerned about matters of law, since it is that Rule of Law that sets a Republic in a distinct place away from the anarchy of the mob, or the authoritarianism of the tyrant.

    AD-RtR/OS! (b8ab92)

  148. Actually, it is a good thing for courts to avoid strictly political issues. It is not a good thing for courts to refuse to hear cases on BS grounds such as contrived versions of standing or ripeness doctrine, because they don’t want to touch a political issue.

    If it’s really a political issue, just say ‘we can’t ban this because it is a political issue’. That’s how Scalia handles it.

    However, there’s a big difference from that and actually having a legal issue with political implications. Kman’s not trolling in this case. It’s getting very clear he’s actually as dumb as he initially comes across.

    I guarantee he has never passed a bar exam.

    Dustin (b54cdc)

  149. Yes, he takes that exam every year on St. Patrick’s Day!
    As long as he keeps passing it, he gets to keep his DL.

    AD-RtR/OS! (b8ab92)

  150. Kman

    > If I were there, I would argue no, but I could see how a court would rule against me

    I half agree. A federal law imposing involuntary servitude would have been unconstitutional, except under the limited exceptions for wartime conscription and forming a posse. And I find the latter to be dubious. I also believe that NEVER in our entire history would any court say that the general populace can be conscripted into work just to get people working, with or without the 13th amendment.

    > Again, relevance?

    Then you lose the argument, that’s the relevance. Obviously you don’t believe that the congress can do just anything rationally related to a valid “goal” (as you define the term)–there are limits. Because obviously increasing employment generally is a valid goal (as you define the term), and forcing people to take jobs would otherwise fit into your analysis. So you even know instinctively that you really can’t stretch the N&P clause as far as you claim.

    You lose.

    > If the Constitution as it exists today has the same words and meaning as it did back in 1804, then why do you need to go back to 1804 to find out what it means?

    I didn’t say the constitution has the same words. I said the necessary and proper clause did. Since then the constitution was amended, and on the 13th amendment, it gave you an easy out.

    But if in 1804 the constitution forbids forced work… you lose.

    > Does the N&P Clause have the same meaning now as it did in 1804?

    Yes, it does. The constitution didn’t magically change. But at the same time the supreme court deliberately, in the face of FDR’s bullying, stopped enforcing it as written. Oh, and when FDR wanted to lock up every person of Japanese descent, they allowed for that, too. Do you think maybe the two were related? Do you think maybe, just maybe, if FDR hadn’t bullied the court they would have had the backbone to declare internment unconstitutional? Hard to say, honestly, but one thing is for sure. Once they were sufficiently bullied, there sure as sh-t was no way they would contradict him on internment.

    > In fact, you would probably get sharp disagreements

    There is not a single one of them that would classify me sitting on my couch and sleeping as commerce. But Sebelius and Kman does!

    Yeah, they didn’t all agree on everything. But none of them agreed with YOU.

    > a recipe for judicial activism

    Lol, following the constitution as written is “activism”!!! No one does Orwell like the left.

    Aaron Worthing (e7d72e)

  151. Because a dissent in one case says that the majority in that case granted the Federal Government unlimited power, the Federal Government has been granted unlimited power.

    What Orin neglects to mention is that a dissenting opinion represents reasoning rejected by the Court.

    A Circuit Court dissent is not binding, and is in fact anti-binding, unless it is vindicated by a subsequent en banc or Supreme Court decision, e.g., Kozinski’s dissent in Silveira v. Lockyer.

    A Supreme Court dissent is anti-binding unless vindicated by a subsequent Supreme Court ruling.
    Why just marital rape? The same argument would justify legalising all rape, and even making it mandatory, in order to maximise the birth rate.

    Or mandate that girls become sexually active by the age of fourteen.

    Michael Ejercito (64388b)

  152. michael

    well, too be fair, he did indicate it was a dissent.

    Aaron Worthing (73a7ea)

  153. ** sigh **, and here I’m hoping people recognize my nick from reading Gibbon.

    The Boogie Knights have song with that title.

    There’s a car in my neighbourhood (Park Slope, Brooklyn NY) with a custom number plate “SPQR”. I used to see it parked quite often, but I haven’t seen it lately. Maybe the owner moved. I don’t know cars, but it looks like an older style to me, like something from the ’60s when cars were bigger; sorry I can’t be more specific than that.

    Milhouse (ea66e3)

  154. Bush-appointed judge dismisses legal challenge to health reform

    WASHINGTON – A federal judge on Thursday sided with the Obama administration on the sweeping health care reform law, throwing out a challenge to its constitutionality.

    Keith Starrett, a George W. Bush- appointed US District Court judge in southern Mississippi, said opponents of the individual mandate had offered “insufficient” basis to challenge the government’s ability to regulate health insurance coverage.

    Also…

    In a Senate Judiciary Committee hearing today on “The Constitutionality of the Affordable Care Act,” President Ronald Reagan’s former Solicitor General — Harvard Law Professor Charles Fried — tore into the reasoning of Judge Roger Vinson’s decision striking down the Affordable Care Act, saying the issue should be a “no brainer”:

    I am quite sure that the health care mandate is constitutional. …

    As an example of the kind of downright sloppy errors that are pervasive in Vinson’s opinion, the judge at one point in the opinion makes the implausible claim that “[t]t was not until 1887, one hundred years after ratification, that Congress first exercised its power to affirmatively and positively regulate commerce among the states.” This is a truly remarkable claim — and one that Vinson cites no authority to support — but it also took me exactly 10 minutes with LexisNexis to prove Vinson wrong:

    Vinson is wrong: George Washington signed a law regulating interstate commerce.

    Republicans took control of Congress promising to repeal the Affordable Care Act. However, at the same time they rip the bill as some sort of “monstrosity” of “socialism,” nearly every Republican lawmaker eagerly accepts government health benefits afforded to them as members of Congress. As ThinkProgress has noted, the congressional health benefits mirror the health plan passed by Democrats for the country: individuals choose private plans regulated under an exchange, and are given a subsidy to help them pay for their plan. As federal employees, lawmakers are given an average of $700-a-month in taxpayer money for their health insurance.

    sam (88f226)

  155. #143, Apology accepted, but why were you impersonating me in the first place? And Patterico or Aaron, could you please fix the two comments in question (#141 and #142)? Not that I disagree with them in the least, but I’d rather not have my name on someone else’s work.

    Milhouse (ea66e3)

  156. Vinson is wrong: George Washington signed a law regulating interstate commerce.

    How is NOT buying something a form of commerce?

    Scott Jacobs (d027b8)

  157. When Barack says it is…

    EricPWJohnson (283e8f)

  158. “sam” has done no research and is cutting and pasting this in threads without attribution. Another troll.

    SPQR (26be8b)

  159. “Sam” is Yelverton, cowardly lying douchenozzle. He has been spamming that for days, since he got his Soros funded marching orders.

    JD (822109)

  160. “However, at the same time they rip the bill as some sort of “monstrosity” of “socialism,” nearly every Republican lawmaker eagerly accepts government health benefits afforded to them as members of Congress.”

    sam – Another of my favorite stupid lefty talking points. Since so much of the left vehemently (at least publicly) objects to the Bush tax cuts, how many of them are voluntarily paying income taxes at the higher Clinton tax rates out of sacred honor?

    daleyrocks (479a30)

  161. Daley – they do not seem to understand the concept of employer provided healthcare, as opposed to government provided healthcare.

    JD (85b089)

  162. daleyrocks, they are the Obama tax “cuts” now.

    SPQR (26be8b)


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