Patterico's Pontifications

6/29/2011

Breaking: 6th Circuit Upholds Obamacare (Update: Even They Think Richard Stengel is Wrong)

Filed under: General — Aaron Worthing @ 10:11 am

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

The Daily Caller story tells you no more than that, but fwiw…  Expect updates.

Update: Volokh has a little more and straightens me out on which circuit is involved.  And you can read it, here.

Update: Okay I read over the majority opinion (there is a dissent, too), at least starting when we get to the commerce clause issues.  Bluntly, the opinion is surreal.  One heading reads:

The minimum coverage provision regulates economic activity with a substantial effect on interstate commerce

Mind you, they are upholding this.  So…inactivity is activity?  Well, this is how they try to fudge it:

The activity of foregoing health insurance and attempting to cover the cost of health care needs by self-insuring is no less economic than the activity of purchasing an insurance plan.

So by that logic, there is no such thing as inactivity.  I am right now engaged in the following activities: not buying a car, not buying a video game, not buying food, not buying the services of a prostitute… and so on.  The mind boggles.

They they go through the usual bit about claiming that it is necessary and proper simply because it would be a disaster if they didn’t uphold the mandate.  As I have pointed out before, I believe that is inadequate.  Instead it must be necessary to carry the other parts of Obamacare into execution.

Finally they confront the inactivity/activity distinction:

However, the text of the Commerce Clause does not acknowledge a constitutional distinction between activity and inactivity, and neither does the Supreme Court.

How can not engaging in commerce be commerce?

Furthermore, far from regulating inactivity, the provision regulates active participation in the health care market.

So “active participation in the health care market” equals “sitting on your couch and scratching yourself”?

The Supreme Court… has not defined activity or inactivity in this context.

How about you crack open a dictionary?  Most dictionaries state that in order to engage in activity you have to, you know, do something.

Then finally they punt on the other arguments, such as whether it is a tax or not:

In light of the conclusion that the minimum coverage provision is a valid exercise of Congress’s power under the Commerce Clause, it is not necessary to resolve whether the provision could also be sustained as a proper exercise of Congress’s power to tax and spend under the General Welfare Clause[.]

Which is a fairly normal thing for a court to do, but on the other hand, they did argue in the alternative earlier in the opinion.  First they claimed that this inactivity is activity and thus subject to regulation under the commerce clause, and then they argued that even if it wasn’t commerce, they could still reach it under the Necessary and Proper Clause.  But if the Commerce Clause argument was enough, then why even bother with the Necessary and Proper Clause if they were in the practice of punting on other arguments once they believe they have found a sufficient one?  Aren’t they implicitly admitting that even they don’t know if that Commerce Clause argument will fly?

But nonetheless this line brought a smile to my face given my current crusade:

In our dual system of government, the federal government is limited to its enumerated powers, while all other powers are reserved to the states or to the people. U.S. Const. amend. X.  States have authority under their general police powers to enact minimum coverage provisions similar to the one in the Affordable Care Act…  However, the federal government has no police power and may enact such a law only if it is authorized by one of its enumerated powers.

Mind you, that is still the majority opinion.  So that is right, even they think Richard Stengel was wrong to say that the Constitution didn’t limit federal power.

Update: Let me add that like the D.C. District court opinion, I think this dealt with the activity/inactivity distinction in a way that wasn’t credible.  Its not as laughably bad as the “mental activity” concept, but it is about equal in lameness.  I prefer a win, obviously, but a lame victory might do their side substantial harm.

[Posted and authored by Aaron Worthing.]

102 Responses to “Breaking: 6th Circuit Upholds Obamacare (Update: Even They Think Richard Stengel is Wrong)”

  1. 6th Circuit or 8th?

    Daryl Herbert (58288d)

  2. I think you mean 6th.

    stone (dde5b7)

  3. The next GOP President can just decide it’s unconstitutional and stop enforcing it, right?

    Like DOMA. Like paychecks to your Czars. Like the war powers act.

    MayBee (081489)

  4. So don’t they have the right to take it from a panel to the full circuit?

    crosspatch (6adcc9)

  5. upheld the individual mandate against a Commerce Clause challenge.

    Things like this make me worried. If that’s the law now, there is no concept of limited government anymore. And these people don’t have the final word, but if they can say what I consider extreme, then we’re obviously hanging on the edge as a country, from a POV of the principles that shaped it.

    Dustin (c16eca)

  6. Six out of six court have now ruled that the penalty is not a tax.

    aunursa (323789)

  7. How can not engaging in commerce be commerce?

    Same way bombing a dictator out of office for over three months is not a war.

    So what’s next, mandated jumping jacks every morning, and only allowing healthy foods? How would that be any different; surely if they’re going to make us buy health insurance to spread the risk around, they can mandate that we try to minimize our use of it through a healthy lifestyle.

    rbj (487e2c)

  8. Is it necessary to be a lawyer to write something this strange? I don’t follow the reasoning, not at all.

    Dianna (23319c)

  9. If inactivity is activity, and if judges can uphold that nonsense, then words have no meaning, and there is no law to be found in the courts.

    We don’t need judges or lawyers, a coin flip will do.

    ropelight (de9bde)

  10. So by that logic, there is no such thing as inactivity

    Jesus, Aaron, people have been telling you this for going on 24 months now. Choosing not to buy health insurance is a choice.

    Prediction of SCOTUS vote: 6-3 in favor of the law; maybe 7-2. Part of me thinks they would be wise to refuse to even grant cert, but I just can’t believe Alito and Thomas would allow that.

    timb (449046)

  11. Not choosing is choosing!

    ∅ (e7577d)

  12. timb, and people have been responding for 24 months that “activity” is not the same as “choice”.

    And you still don’t reconcile the ludicrous position that “choice” is sufficient for supporting interstate commerce clause power with the idea that the ICC power has a limit.

    But then, you’ve never attempted to do so.

    SPQR (26be8b)

  13. Choosing not to buy health insurance is a choice

    It’s a choice, but the question is whether Congress has the power to regulate that choice.

    Chuck Bartowski (4c6c0c)

  14. All Americans should be required to buy at least 1 pack of cigarettes per day, under the Commerce Clause.

    malclave (1db6c5)

  15. @malclave

    And they should be 100% tax-free for people over 55.

    crosspatch (c58f80)

  16. @16

    Absolutely not. One of the principal unspoken reasons for the mandate is to increase tax revenue while still allowing politicians to claim that they did not raise taxes.

    malclave (1db6c5)

  17. There’s a ghoulish logic to #16, malclave:

    If enough people over 55 smoke often enough, they’ll die off and the government won’t have to pay their Medicare or Social Security. Think of it as a tax incentive to avoid future expenditures.

    Chuck Bartowski (4c6c0c)

  18. timb

    i don’t deny that it is a choice. but the constitution doesn’t regulate economic choices, but instead commerce.

    seriously are you right now engaged in commerce by not buying things?

    Aaron Worthing (e7d72e)

  19. …but a lame victory might do their side substantial harm.

    Boy, is that naive. Harm? In what way? They got what they wanted (a P/R victory and a rationalization that 5 justices can use to uphold), they don’t care one bit that opponents view the decision as weak.

    By your logic, Roe-v-Wade, given the utterly ridiculousness of the decision, was a great victory for the pro-life side, right?

    steve (254463)

  20. ac·tiv·i·ty
    noun \ak-ˈti-və-tē\
    plural ac·tiv·i·ties
    Definition of ACTIVITY
    1
    : the quality or state of being active
    2
    : vigorous or energetic action : liveliness
    3
    : natural or normal function: as a : a process (as digestion) that an organism carries on or participates in by virtue of being alive b : a similar process actually or potentially involving mental function; specifically : an educational procedure designed to stimulate learning by firsthand experience
    4
    : Not buying insurance (joke)

    Dustin (c16eca)

  21. Dustin

    i do say you might be smarter than the judges in the 6th circuit and Richard Stengel.

    Aaron Worthing (e7d72e)

  22. That is quite an egregious insult to the judges of the 6th.

    :)

    Dustin (c16eca)

  23. Steve

    well i fear you might be right, but let me continue to be the optimist.

    consider the example of judge kozinski’s dissent on the second amendment. he lost the case, yes, but he wrote such a powerful dissent that you have to think that when the S.C. vindicated the right to bear arms, his writing was on their mind. it was a searing defense of the right to bear arms, eloquent while also indicting a court that made up rights that were not in the constitution and ignored ones that were.

    Aaron Worthing (e7d72e)

  24. @18

    But we don’t want people to smoke. That would be bad.

    My only suggestion is that people be required to BUY cigarettes. This seems, in my layman’s eyes, to be perfectly consistent with the left’s position on the legality of Obamacare. SMOKING those cigarettes should still be heavily discouraged, and outlawed where possible.

    To be honest, I don’t completely understand my proposal myself, but I guess that’s an expected result of trying to think like a liberal. but just because nobody understands the proposal is no reason not to pass it… you have to pass the bill to see what’s in it!

    malclave (1db6c5)

  25. also indicting a court that made up rights that were not in the constitution and ignored ones that were.

    It produces actual physical pain for me to consider that point. They treat a core human right like an option, and yet will scour penumbras for rights that are actually just their personal opinions for how the world should be.

    There’s one way Richard is somewhat right. I think had the founders been able to see what’s been done, there would have been some clarity on the commerce clause, privacy, and more.

    Dustin (c16eca)

  26. But we don’t want people to smoke. That would be bad

    From a government cost-saving perspective, we can either make them all smoke, or have them step into the Carousel at 55.

    Chuck Bartowski (4c6c0c)

  27. “Just the tip baby”….so sayeth the 8th circuit court.

    Don (eef535)

  28. I just engaged in the economic activity of not buying a GM car.

    JD (0d01eb)

  29. I propose that the next Republican president dismiss these judges, and when they protest that the constitution doesn’t give him that power, just tell them that their discovery that the constitution actually means something comes too late.

    Milhouse (ea66e3)

  30. To be honest, I don’t completely understand my proposal myself, but I guess that’s an expected result of trying to think like a liberal. but just because nobody understands the proposal is no reason not to pass it… you have to pass the bill to see what’s in it!

    Comment by malclave

    I can see the executives at tobacco companies looking dazed from here.

    Dianna (23319c)

  31. It’s been said a dozen times in this thread, but:

    You can choose a ready guide in some celestial voice,

    If you choose not to decide, you still have made a choice!

    Ah, good times. Classic RUSH and the Constitution.

    luagha (5cbe06)

  32. AW: I think all nine of the Justices have not only already made up their minds how they’re going to vote, they’ve also figured out what rationalization they’re going to use to explain their vote.

    Thus, all the lower court proceedings is a waste of time and paper and energy. They mean nothing, the Justices are going to vote the way they want, period, end of sentence. If it means reversing, they’ll reverse. If it means upholding, they’ll uphold. As the fine print in stock ads go, past (decisions) is no predictor or guarantee of future performance.

    Maybe one or more of the Justices will crib some passage from a lower court ruling to incorporate into their ruling, but that’s it.

    steve (254463)

  33. I just engaged in the economic activity of not buying a GM car.

    Comment by JD — 6/29/2011 @ 2:04 pm

    If you had, it probably would have been a white car.

    You make me sick, JD. :)

    Dustin (c16eca)

  34. The BS assumptions used to turn not choosing to buy something into an economic activity that effects commerce are so mendoucheous that only someone like timmah could cheer them.

    JD (0d01eb)

  35. I made a choice to not buy another house today, adversely effcting home prices in my town, county, state, and having an effect on mortgage rates and interest rates in general, nationwide. I also made a choice to not buy Costa Rica, Idaho potatoes, any ambulance chaser legal services, or a heart stent. I should probably be penalized, or even killed.

    JD (85b089)

  36. ____________________________________________

    Bluntly, the opinion is surreal.

    How old are these idiotic judges? They’re undoubtedly of the left, and certainly beyond their high-school and college years. But with their greater age has come absolutely no wisdom. Worse of all, I bet they’re the types who talk out of both sides of their mouth (ie, they’re probably limousine liberals).

    As a tribute to such judges, and as a sign they may have even less common sense than a well-known celebrity of the past who at least publicly was never known for maturing in his way of thinking, I herein post the following…

    Torontosun.com via drudgereport:

    John Lennon was a closet Republican, who felt a little embarrassed by his former radicalism, at the time of his death – according to the tragic Beatles star’s last personal assistant.

    Fred Seaman worked alongside the music legend from 1979 to Lennon’s death at the end of 1980 and he reveals the star was a Ronald Reagan fan who enjoyed arguing with left-wing radicals who reminded him of his former self.

    “I also saw John embark in some really brutal arguments with my uncle, who’s an old-time communist… He enjoyed really provoking my uncle… Maybe he was being provocative… but it was pretty obvious to me he had moved away from his earlier radicalism.

    “He was a very different person back in 1979 and 80 than he’d been when he wrote Imagine. By 1979 he looked back on that guy and was embarrassed by that guy’s naivete.”

    It really pisses me off because the friggin’ IRS will be the enforcer of the idiocy emanating from the ultra-liberal Obama. This country’s tax-enforcement agency is one of the few (or only) things that will come off smelling like roses — because of its need to hire thousands of more employees — if the stupidity of President “Goddamn America” is allowed to stand.

    A Banana Republic like Greece or Mexico is notorious for the amount of tax cheating that exists among its populace, which is predominantly and therefore hypocritically leftwing. Since the US is going down the same road, we’ll understandably acquire (or should acquire) that particular trait.

    Mark (411533)

  37. “If the law supposes that”, said Mr. Bumble, “the law is a ass – a idiot …”

    Charles Dickens, Oliver Twist

    Old Bob (cc080e)

  38. “the text of the Commerce Clause does not acknowledge a constitutional distinction between activity and inactivity, and neither does the Supreme Court.”

    And there you go. The fact that the Commerce Clause has been inactive in making this distinction proves that it actively opposes the distinction between activity and inactivity. They couldn’t not say it if it weren’t true, right?

    Gesundheit (aab7c6)

  39. Medicine in this nation should have been socialized years ago. When will America get it!

    phagocyte (4de175)

  40. So, what limits exactly do they envision to the commerce clause?

    Can they just as well make me SMOKE crack as make it illegal? Not that the illegality bothers the panel any.

    Kevin M (298030)

  41. Can they just as well make me SMOKE crack as make it illegal?
    Comment by Kevin M — 6/29/2011 @ 6:07 pm

    Tweaking is the highest form of patriotism? 😉

    Stashiu3 (44da70)

  42. BTW,what do we call this new theory, as it is applied to an area that has the fed regulating non-commerce that remains subject to state law?

    The Anti-dormant Not-Commerce Clause? I get so confused.

    Kevin M (298030)

  43. Can they just as well make me SMOKE crack as make it illegal? Not that the illegality bothers the panel any.

    Comment by Kevin M — 6/29/2011 @ 6:07 pm

    This sounds so sarcastic, but it also is a very clear way to express the frustration I feel. I’ll surely be using that. How dare these congressmen and judges think they can tell me what to do, if all I want to do is mind my own business?

    Dustin (c16eca)

  44. Dustin

    really if this is what the commerce clause meant, then prior to 1860, you could enslave people.

    After all, suppose congress passes a bad regulation of the medical profession. so doctors start quitting. so the only way to clean up their problem, they argue, is force the quitting doctors to resume their profession–to force them to work.

    without the 13th amendment, what clause in the constitution would prevent that, according to their analysis.

    Aaron Worthing (73a7ea)

  45. It does seem to be coming from a place the rest of our constitution is not. I know this is not a very clear argument, but most of the constitution presents this concept of government checking itself, people having sweeping freedoms, states having such sweeping freedoms they can scarcely be described, and government being limited to a few abilities.

    And yeah, I know, the necessary and proper clause fills in some vast blanks, so it’s not like the government is limited strictly to the things I can point out, but this idea of a commerce clause specifying something as central as how I deal with health care is of a flavor that doesn’t mix well with the rest of our nation’s principles.

    Dustin (c16eca)

  46. This was specially dissapointing Dustin, in the context of this info, from his wiki.

    Sutton was first nominated by President George W. Bush on May 9, 2001 to a seat on the Sixth Circuit vacated by David A. Nelson. That nomination, made during the 107th Congress, never received a floor vote in the U.S. Senate. Sutton was not confirmed until almost two years later, on April 29, 2003, when the U.S. Senate of the 108th Congress voted 52 to 41 in favor of his confirmation to the Sixth Circuit. He received his commission on May 5, 2003. Sutton was the third judge nominated to the Sixth Circuit by Bush and confirmed by the United States Senate.

    [edit] TenureJudge Sutton has been recognized as the intellectual engine behind a conservative movement of the jurisprudence of the Sixth Circuit as the author of many majority en banc opinions representing the Republican-appointed judges. [1] In June 2011, Sutton became the first Republican nominated judge to rule in favor of the health care mandate in President Obama’s Health Care law.[2]

    ian cormac (72470d)

  47. nominated by President George W. Bush

    /Facepalms

    And the sad thing is that W was much better about nominations than any other modern Republican, and I would bet money better than the next Republican will be.

    Dustin (c16eca)

  48. He was one of those, kept off the court, initially,
    by Jefford’s tantrum, that Leahy exploited to shape
    his choices, Now Boyce Martin, the author of this
    ‘travesty of two mockeries of a sham’ is a horror show

    ian cormac (72470d)

  49. Comment by Dustin — 6/29/2011 @ 6:31 pm

    This seems to be the biggest point on which the MSM is hitting regarding this decision–that, up to know, every decision on Obamacare by a GOP appointed judge has ruled against it, and every decision on Obamacare by Democrat appointed judge has ruled for it; and that Sutton ruling for it is therefore apparently SOMETHING REALLY SIGNIFICANT. At least until the Supremes rule on it, at which time it all becomes irrelevant.

    On another point: reading an Ezra Klein post today in which he included an extensive quote in which this panel points out that no one has challenged state power to mandate insurance coverage, on liberty related or Due Process grounds, and concludes from that there’s no liberty/Due Process clause ground on which to challenge the mandate–that if the states can do it, so can Congress (at least as far as the Due Process clause is concerned). You’d think they were looking at Mitt Romney when they wrote that.

    JBS (510a0a)

  50. Can they just as well make me SMOKE crack as make it illegal?

    Well, the more people smoke crack, the more will need to seek medical treatment. So sure, that’s covered under the Commerce Clause.

    malclave (1db6c5)

  51. Sutton ruling for it is therefore apparently SOMETHING REALLY SIGNIFICANT.

    They do find fake-news like that sometimes. Significant things that are actually just kinda nonsensical. Like a shred of bipartisanship in judicial rulings, which is as nonsensical as it gets.

    Still, judges who accept this commerce clause interpretation are an outrage.

    Dustin (c16eca)

  52. Can this case, be moved to a full en banc, would it make a difference.

    ian cormac (72470d)

  53. this is not really about the fact that sutton is conservative, its that he’s one of the most intelligent conservative judges there is.

    i vaguely remember some “wikard v. fulbright”? thing discussed once, where the Supremes said someone could be punished for saving his crop for his own use and NOT selling it.

    milowent (0f8248)

  54. Wickard V Filburn.

    I used to think the farmer was named Wickard, but it was Filburn.

    He was ordered to either destroy his crop or be penalized with a fine. And yes, this was the beginning of the end as far as limited government is concerned, but I think a mandate is inherently a radical departure from even that.

    Dustin (c16eca)

  55. But anyway, the government was regulating the activity of Wheat production.

    It wasn’t regulating the activity of not selling wheat.

    They didn’t penalize Filburn’s neighbors who weren’t selling wheat. They didn’t order Filburn to produce wheat and sell it.

    Dustin (c16eca)

  56. Might I add that people were starving and the government was penalizing people for making too much food for their families.

    They wanted to increase the scarcity of wheat so that the price would be higher and farming more profitable. What a world we’ve created for ourselves. A lot of short term decisions by people who want to run things they have no business running.

    Dustin (c16eca)

  57. It appears that judge Sutton in paying due deference to stare decicis concluded that the mandate is the logical conclusion of Wickard. Ironically by applying conservative judging he realized that by voting against the mandate he would be curbing if not overriding Wickard v Fillburn and therefore in by applying stare decisis he had to vote for the mandate in order to be consistent with Wickard. The question is will the conservative on the SCOTUS become conservative activists and overturn Wickard by using the mandate as a vehicle for a decision that should have never been rendered in the court in the 1930’s had been true to the constitution.

    cubanbob (409ac2)

  58. yes, wickard v. fillburn, thanks for the details!

    due to the natural development of modern commerce, i guess pretty much everything affects interstate commerce. that wasn’t the case in 1790, of course.

    anybody with any experience in medical billings knows that someone not having insurance definitely has an affect on “commerce”, e.g., profit margins. they will at undiscounted rates, but can’t collect!

    milowent (0f8248)

  59. anybody with any experience in medical billings knows that someone not having insurance definitely has an affect on “commerce”

    Sure.

    So does someone not smoking crack.

    So does me not having an abortion. Well, never mind.

    i guess pretty much everything affects interstate commerce. that wasn’t the case in 1790, of course.

    It’s not a license to force people to do things they don’t want to do. In my opinion, which is not shared by some congressmen, governors, and judges, I have to admit. Filburn making his own bread is not exactly much of an impact anyway.

    It seems like a violation of the social contract to me. I was always more of a Nozick fan than a Rawls one, as I bet you can imagine, but what world is it where I’m forced to get insurance because of the impact on medical billing? My rights stop where they impact yours. I can live with that and I think that’s at the root of what you’re believing in. But defining impact all the way down to this seems like I just don’t really have rights anymore. I don’t even have the right to take care of my health however I damn well please.

    Dustin (c16eca)

  60. i’m no expert on this inactivity theory. if the commerce clause doesn’t authorize the feds to force people to buy health insurance, can states choose to do it?

    one weird thing about medical treatment is that people don’t seem to be able to opt out of receiving it. if people without insurance could be left dying at the scene of a car accident, then choosing not to buy health insurance wouldn’t affect everyone else.

    but the way it works now, everyone who chooses not to buy health insurance is forcing me to pay more for my health insurance due to all the bad debts for uncovered services, and i fucking hate that. maybe the way around all this would be making the failure to pay a health care bill punishable with prison time. there’s no question that failing to pay a health care bill affects interstate commerce. if the people who choose not to buy insurance could actually suffer the consequences for their bad decisions, we could eliminate the current huge free-rider problem encouraging people not to purchase insurance.

    milowent (0f8248)

  61. So, the government has the power to regulate interstate commerce…after forcing people to engage in it??? Neat trick.

    This is a total joke, The law is completely unconstitutional, like most of what the federal government does.

    IMO, we should have altered or abolished the federal government generations ago, and we ought to do so now.

    It’s too big, too powerful, too tyrannical and too lawless (see recent events in Libya or Mexico for recent examples).

    We’re headed towards a full-blown socialist police state, and we better start doing something about it soon…or we’re all going to wind up as serfs.

    Dave Surls (661f58)

  62. As Dustin pointed out, Filburn was penalised for the act of growing wheat without permission from the federal government. The criminals on the Supreme Court declared that growing wheat is inherently a form of interstate commerce, because it increases the total wheat supply, and thus depresses the price everybody pays for it; thus Congress could regulate that activity, and punish those who engage in it contrary to those regulations.

    That was a fraudulent decision, that courts should ignore and the Supreme Court should overturn at the first opportunity; that would not be “activism” but merely doing a court’s job, which is enforcing what the constitution says, not what some frauds in the 1930s pretended it says.

    But that entire topic has nothing to do with the current case. Even if growing wheat is “interstate commerce”, not growing wheat is not. Even if Congress can regulate the growing of wheat, how do you get from there to regulating the failure to grow wheat? Nobody at any time alleged that Congress could require Filburn to grow wheat, or to buy wheat from the market. He was perfectly entitled to do without wheat if he liked, and it never crossed anyone’s mind that Congress could do anything about it. Nor has any court until this year contemplated such a power. It’s entirely new, and thus must be rejected by every honest judge.

    Milhouse (ea66e3)

  63. “without the 13th amendment, what clause in the constitution would prevent that, according to their analysis”

    Your shocking result is that before 1860 the constitution permitted slavery?

    “seriously are you right now engaged in commerce by not buying things?”

    They get to regulate commerce, not people who are ‘engaged in commerce.’ At least if you look at the text.

    stone (39ffdf)

  64. “Nobody at any time alleged that Congress could require Filburn to grow wheat, or to buy wheat from the market.”

    The opinion recognized that the Act forced farmers into the market to buy wheat.

    “It’s entirely new, and thus must be rejected by every honest judge”

    I would have thought the proper question was not whether the power was “new” but whether it fit under a grant of power of the Constitution.

    stone (e546cc)

  65. I made the choice to not purchase a hotel this morning.

    JD (0d01eb)

  66. Not all of us can play monopoly instead of working, JD.

    Joonipre (d01a46)

  67. Your shocking result is that before 1860 the constitution permitted slavery?

    Er, yes, of course it did. What kind of idiot claims otherwise?

    Milhouse (ea66e3)

  68. Oops, hit submit too early. Yes, the constitution before the 13th amendment permitted slavery, of people who were already slaves. It didn’t permit the enslavement of free people.

    Milhouse (ea66e3)

  69. The opinion recognized that the Act forced farmers into the market to buy wheat.

    No, it didn’t. Farmers, like everybody else, remained free not to buy any wheat if they didn’t want to.

    I would have thought the proper question was not whether the power was “new” but whether it fit under a grant of power of the Constitution.

    Of course it doesn’t. Where in the constitution is Congress authorised to regulate commerce that is not interstate, or activity that is not commerce? But Wickard is an old fraud; this is a new one.

    Milhouse (ea66e3)

  70. They get to regulate commerce, not people who are ‘engaged in commerce.’ At least if you look at the text.

    Commerce is an activity; people engage in it, or not. Commerce can no more exist without people engaging in it, than can running.

    Milhouse (ea66e3)

  71. I engaged in the activity of building a mall by deciding to not build a mall this morning.

    JD (0d01eb)

  72. “No, it didn’t.”

    This is the line I’m thinking of: “It is said, however, that this Act, forcing some farmers into the market to buy what they could provide for themselves, is an unfair promotion of the markets and prices of specializing wheat growers.”

    So they did recognize that the act forced farmers into the market.

    “Commerce is an activity; people engage in it, or not.”

    It seems like you’re adding to the text. Congress gets to regulate commerce. That’s that.

    Under what power did the US government carry out the Trail of Tears?

    stone (614555)

  73. Hush, imdw. Nobody really cares about your sophistry.

    JD (0d01eb)

  74. “Under what power did the US government carry out the Trail of Tears?”

    Look, a squirrel!

    daleyrocks (bf33e9)

  75. I see penumbras. They are among us.

    daleyrocks (bf33e9)

  76. stone

    > It seems like you’re adding to the text

    no, we are pointing out what commerce means.

    > Under what power did the US government carry out the Trail of Tears?

    Actually the S.C. had declared that act unconstitutional a few years before it happened.

    But are you going to say, “hey, let’s use that as a precedent?”

    Aaron Worthing (e7d72e)

  77. Let’s try to follow their logic. Activity and inactivity are equal and both are subject to regulation.

    Expressed in terms of criminal activity, not robbing a bank is equivalent to robbing a bank so should be a chargeable offense.

    Maybe we should put it in terms bho and durbin would understand. Being an illegal alien is equivalent to being a legal citizen so someday an illegal alien could be president…. right?

    /sarc

    MaaddMaaxx (25e27f)

  78. This judge’s decision rationale is bogus. Absolutely. He says that a farmer back years ago was precluded from using his own seed to plant on his farm. The Commerce Department ultimately was favored with a ruling by the Supreme Court that said the farmer had to use purchased seed to be in conformance with what all farmers were doing. But realize that the farmer was farming. It would have been a much, much different case if the farmer had a farm and chose NOT to plant anything. The question is: Does the Commerce department have the right, given the farmer is NOT engaged in commerce, to force the farmer to farm? The answer is no. And so, a citizen in the U.S. that chooses NOT to participate in the Obama care mandate can not be FORCED into commerce so that he/she can be controlled by the commerce department. The cases and situations are quite different. The judge issued a BOGUS decision based on BOGUS logic. Such is the like of those who seek to deeply kiss Obama’s ass.

    AdrianS (accc54)

  79. This is the line I’m thinking of: “It is said, however, that this Act, forcing some farmers into the market to buy what they could provide for themselves, is an unfair promotion of the markets and prices of specializing wheat growers.” So they did recognize that the act forced farmers into the market.

    It forced those farmers who wanted wheat (or more wheat than the government allowed them to grow) to buy it instead of growing it themselves. But how did it affect those farmers (and others) who decided to do without wheat, or to live within their quota? Did it command hem to buy wheat anyway? Could it have done so? Come on, this is obvious. You can’t possibly have missed it.

    “Commerce is an activity; people engage in it, or not.”

    It seems like you’re adding to the text. Congress gets to regulate commerce. That’s that.

    Now yo’re babbling. What have I added to the text? Commerce is an activity. That’s what it is, just as running and sex and mocking you are all activities. Commerce happens whenever one person buys a good or service from another person. When nobody is buying or selling anything, there is no commerce. That’s not a matter of opinion, it’s the definition of the word. Suppose the constitution had authorised Congress to regulate sexual intercourse; do you claim it would then have the right to compel people to have sex whether they wanted to or not?!

    Under what power did the US government carry out the Trail of Tears?

    None, as far as I know. What’s that got to do with it?

    Milhouse (ea66e3)

  80. Milhouse – I appreciate your efforts, but logic has no impact on steno.

    daleyrocks (bf33e9)

  81. “What have I added to the text?”

    That the only regulation is when people are engaged in commerce. For example, congress can decide that it will regulate the health care market by requiring that financing of health expenditures will be via insurance and require that everyone pre-pay for health care services via the purchase of insurance. That’s perfectly easy to understand as a regulation of the commerce of health care, but hard to understand if you’re waiting until people actually engage in an exchange in order to trigger a regulation.

    “None, as far as I know. What’s that got to do with it?

    I was wondering if it was done under the power to regulate commerce with Indian tribes. Because that would pretty much be a slam dunk — if Congress can cause genocide…

    stone (58a4f2)

  82. Somin at Volokh has another good piece, debunking the ‘slam dunk’ characterization of this poorly considered case:

    ian cormac (d380ce)

  83. I participated in interstate commerce by engaging in the economic inactivity of not buying another evil corporate jet.

    JD (d48c3b)

  84. steno could engage in commerce and stimulating the economy through doubling your money by selling your used car. It know things about that market, except Cash For Clunkers may have messed it up a little.

    daleyrocks (bf33e9)

  85. I engaged in commerce today by taking a dump at home rather than in a restroom at a public restaurant, potentially scaring other people away from engaging in commerce.

    Ima giver that way.

    daleyrocks (bf33e9)

  86. Stoned/imdw – how is Bret Kimberlin doing?

    JD (85b089)

  87. “What have I added to the text?”

    That the only regulation is when people are engaged in commerce.

    Huh?

    For example, congress can decide that it will regulate the health care market by requiring that financing of health expenditures will be via insurance and require that everyone pre-pay for health care services via the purchase of insurance. That’s perfectly easy to understand as a regulation of the commerce of health care, but hard to understand if you’re waiting until people actually engage in an exchange in order to trigger a regulation.

    Lots of words there, but no meaning. Look, it couldn’t possibly be simpler: the constitution gives Congress the power to regulate commerce. Buying insurance is commerce, and Congress can regulate how it’s done, the terms, the rates, it can dictate who may sell it, who may buy it, all that good stuff. But if a person is not buying it, then where’s the commerce? You cannot talk your way around this. Confront it and answer it directly, or admit that you’re an idiot and/or a liar.

    Milhouse (ea66e3)

  88. Ian, that link to Volokh doesn’t work. Here’s the correct link

    Milhouse (ea66e3)

  89. ___________________________________________

    TenureJudge Sutton has been recognized as the intellectual engine behind a conservative movement of the jurisprudence of the Sixth Circuit

    I guess he’d be the flip side of the proverbial broken clock, or that which in spite of itself tells the correct time twice a day.

    Or, more definitively, Sutton appears to suffer from a bout of Reagan-Iran illness. That is where an otherwise rational, sensible person of the right, by listening to his or her idiotic liberal biases, does the wrong thing. So in the case of Ronald Reagan, he pulled a Jimmy-Carter number on everyone — and went against his own publicly stated position — and secretly negotiated with a hostage-taking nation (ie, Iran).

    Again, left-leaning sentiment invariably makes any person — be he left (naturally) or right — susceptible to foolish and deluded thinking and decisionmaking.

    Mark (411533)

  90. “But if a person is not buying it, then where’s the commerce?”

    If a person is not buying insurance, there’s still commerce in the health care market. It’s a regulation of the health care market to require that people buy insurance before they enter the health care market. You don’t have to wait for some predicate act by an individual to regulate that particular individual, because the constitution doesn’t give the power to regulate individuals when they are in commerce, it’s plain old the power to regulate “commerce” itself.

    Of course, if you want some predicate act, one could just be invented — can congress say “as a condition of participating or using anything in interstate commerce, you have to carry insurance” ? And set a mandate as a rational way of achieving that?

    “Again, left-leaning sentiment invariably makes any person — be he left (naturally) or right — susceptible to foolish and deluded thinking and decisionmaking.”

    I’m fascinated by the possibility that Reagan’s left-leaningness would lead to him arming the contras.

    stone (bd5910)

  91. How is Kimberlin, stoned/imdw?

    JD (318f81)

  92. milhouse, wherever it was you corrected me on standing issues recently, I read that an appreciated the insight.

    Dustin (b7410e)

  93. steno is stoned if that comment is supposed to be coherent.

    daleyrocks (bf33e9)

  94. Strange, my comment seems to have not been posted under recent comments.

    The Tamandua (4de175)

  95. Ability to regulate is the same as the ability to mandate. We should mandate purchase of homes to eliminate homelessness.

    JD (318f81)

  96. tam, the filters here are a little strange. if one of your comments isn’t here, it’s 99.99999% likely to be something with that.

    Dustin (b7410e)

  97. Dustin, I see my comment appear as no.94. It is on my computer, but didn’t appear under “recent comments”.

    The Tamandua (4de175)

  98. milhouse, wherever it was you corrected me on standing issues recently, I read that an appreciated the insight.

    You’re welome. It was in the thread immediately above this one.

    Milhouse (ea66e3)

  99. Barnett in this piece on VC shows how the dissenting opinion in this case really polishes the arguments against the constitutionality of the individual mandate and ties those arguments seemlessly into existing SCt precents like Raich and Lopez. Really interesting piece.

    SPQR (26be8b)

  100. That’s a very good opinion, SPQR, the others would send Professor Kingsfield, after any student, with a copy of Blackstone, to bludgeon
    them into awareness,

    ian cormac (d380ce)


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