Akhil Amar: Refusing to Let Congress Force People to Buy Healthcare is Like Refusing to Let Congress Ban Slavery (Update: Lincoln and the Definition of Liberty in the Dictionary of the Wolf)
[Guest post by Aaron Worthing; if you have tips, please send them here.]
Update: Look at the end of the post for some Lincoln quoty goodness on the definition of liberty.
Professor Akhil Amar, who teaches Constitutional Law, had a piece over the weekend in the LA Times attacking Judge Vinson’s opinion striking down Obamacare, and while other competent people have torn into this POS editorial (here, here and here), I thought I would go after him, too. He starts right off personally insulting the judge, explaining that as he read the opinion:
One thing was immediately clear: My students understand the Constitution better than the judge.
Well, Akhil, I know many of your former students and I can say this. Most of them understand the constitution better than you do and Supreme Court precedent, I might add. He goes on:
As every first-year law student learns, lower court judges must heed Supreme Court precedents.
Except of course the idea of Congress forcing you to enter into a contract with a private company under the Commerce clause—or the Commerce clause combined with the Necessary and Proper clause—is literally unprecedented. Congress has literally never tried to do it and thus the courts have literally never ruled on the issue before Obamacare came along.
The central issue in the Obamacare case is how much power the Constitution gives Congress, and the landmark Supreme Court opinion on this topic is the 1819 classic, McCulloch vs. Maryland.
Except of course, every first year student also knows that technically the only precedent set is bound to the specific facts of the case. In other words, McCulloch v. Maryland only stands for the proposition that a state cannot tax a Federal bank. The rest of it is obiter dictum, or dictum for short. That means extraneous stuff that isn’t binding in the future, but might still be considered persuasive.
Of course the courts would be wise to follow that dictum, and they do, but for someone asserting that the judge was making a rookie mistake, maybe you shouldn’t make one yourself, Professor.
But in fact if you read Vinson’s opinion, he did follow McCulloch, by name. But you see Judge Vinson took a different principle from McCulloch than Amar did. Vinson recognized that this meant that the Necessary and Proper Clause only justified laws that were the means by which the powers of congress were executed. By comparison Sebelius and company argued that it could also be used to mitigate the damage done by other congressional laws.
To see how dangerous this interpretation is, imagine that this was at any point in our history before 1859. Imagine Congress passed a series of regulations and liabilities upon doctors that was so onerous that they began to quit the profession entirely. So then Congress passes a law forcing those doctors to re-assume their old professions and occasionally conscripting citizens into the medical profession to replace those doctors who became too old to treat patients or died. According to Sebelius’ theory of the constitution, this involuntary servitude would be fully constitutional and would only present a constitutional problem after the Thirteenth Amendment was ratified. Vinson wisely rejected that radical approach.
But Amar takes a wholly different meaning from McCulloch:
Justice John Marshall famously countered that the Constitution gives Congress implied as well as express powers. Marshall said that unelected judges should generally defer to elected members of Congress so long as a law plausibly falls within Congress’ basic mission….
In 34 years as chief justice, Marshall never struck down an act of Congress as beyond the scope of federal power. The modern Supreme Court has followed Marshall’s lead. Since 1937, only two relevant cases — U.S. vs. Lopez in 1995 and U.S. vs. Morrison in 2000 — have held that federal laws transgressed the limited powers conferred on Congress by the framers.
Got that? Congress can do whatever it wants, so long as it sounds plausible.
Which is not only bad constitutional law, but that is bad history. Marshall never struck down a single act of Congress as beyond Federal Power? Well, apparently he never heard of a small case called Marbury v. Madison. And in modern times there have been federal anti-birth control statutes that have been struck down, federal segregation in the District of Columbia that was found to go beyond Congress’ power, a federal anti-flag-burning law that went beyond their power, as well as many examples of the federal government violating the establishment clause in the eyes of the Supreme Court. Amar seems to think that judicial review doesn’t even exist, or barely does. In fact it has existed for longer than McCulloch.
And is deference such a good thing, anyway? In Citizens United, the Federal Election Commission suppressed all advertisements of a movie entitled Hillary, the Movie–a movie about a Presidential candidate by a company that apparently did nothing but make political documentaries. I have yet to meet a single person—whether a supporter or opponent of the decision—who felt that this action by the FEC was correct. When I point out those facts to those who denounce the ruling in Citizens United they say, “well, that was wrong, but…” And I believe Mr. Korematsu and a few thousand Japanese Americans wished the Supreme Court was a little less deferential. It is stunning to see a Professor of Constitutional Law argue against judicial review.
Neither of the laws at issue in these cases [Lopez and Morrison] plausibly fell within the Constitution’s grant of congressional power to regulate “commerce among the several states” — a phrase that includes all interstate transactions, such as a national market in goods or services or a situation in which people, pollution, water or wildlife cross state lines.
By contrast, Obamacare regulates a healthcare industry that obviously spans state lines, involving billions of dollars and millions of patients flowing from state to state.
Notice the sleight of hand, though. He first talks about the healthcare industry, which assuredly does span state lines. But the mandate itself is not regulating anything that crosses state lines. Sitting on your couch is not interstate commerce. But he does his level best to claim it is:
When uninsured Connecticut residents fall sick on holiday in California and get free emergency room services, California taxpayers, California hospitals and California insurance policyholders foot the bill. This is an interstate issue, and Congress has power to regulate it.
But if the possibility of people going from one state to another and needing local services makes something interstate commerce, then Lopez and Morrison were wrongly decided. After all, Lopez concerned itself with the Gun-Free Schools Act, creating a gun free zone around every school. Now if a person travels from one state to another with a gun, goes near a school and shoots a student, and that student goes to a California hospital, then “California hospitals and California insurance policyholders foot the bill,” right? Meanwhile, U.S. v. Morrison concerned the Violence Against Women Act, and in particular, an alleged gang rape. So if a man crosses state lines to rape a woman, then my gosh, she might also have to go to a local hospital, etc. Or for that matter, if a woman is driving cross country, stops at a hotel and that night is raped in her hotel room by local jerks, and she has to ask the local hospital to treat her, and for the local police to arrest her attackers, the local courts to try them, and the local prisons to confine them if convicted, then that state foots the bill, too, right? So by Amar’s logic, the Gun-Free Schools Act and the Violence Against Women Act were actually constitutional. So much for Amar’s professed respect for the obiter dictum of the Supreme Court.
Sadly, he goes on:
Breathing is an action, and so is going to an emergency room on taxpayers’ nickel when you have trouble breathing.
Again, if true means that Lopez and Morrison were wrongly decided. He plunges forward:
Nor is there anything improper about requiring people to buy or obtain a private product. In 1792, George Washington signed into law a militia act that did just that, obliging Americans to equip themselves with muskets, bayonets, cartridges, the works.
Mmm, yes, Akhil, as part of the right to raise and arm armies. Which is a slightly different subject and a different congressional power. But he flies forward undaunted:
[Judge] Vinson says this mandate cannot be upheld under Congress’ sweeping tax powers. Wrong again. A basic purpose of the founders was to create sweeping federal tax power, power that was emphatically reinforced by the 1913 Income Tax Amendment.
Actually, he didn’t say that. What he said was that Congress was not invoking its taxation power. As such he did not even rule on the issue of whether the taxing power could be invoked to justify this, although he generally stated that Congress’s power to tax is more expansive than its power to create penalties suggesting that perhaps if it had been a tax it would have been upheld.
Bluntly, Akhil, a first year law student would have recognized that. Which suggests to me that even if Amar did read the most recent opinion from Vinson, he didn’t read the first one.
If Congress can tax me, and can use my tax dollars to buy a health insurance policy for me, why can’t it tell me to get a policy myself (or pay extra taxes)? Vinson offers no cogent answer to this basic logical point.
Well, that might have something to do with the fact we are not talking about the taxation power, Akhil. But it’s cute to see you try to bootstrap the expansion of federal taxation power into the power to control your entire life and death.
Meanwhile, Vinson asks the more basic question Amar ignores: if Congress can do this, what can’t they do?
Alas, Amar continues:
He also mangles American history and constitutional structure. In a clumsy wave to today’s “tea party” groups, he rhetorically asks whether Americans who fought a tax on imported tea in the 1770s would have authorized Congress in the 1780s to mandate tea purchases. Huh?
Surely Congress was authorized to do the very thing that Parliament could not — tax imported tea.
Ah, so once again, Amar is one of many liberals who have decided that the Boston Tea Party is the sole property of conservatives—that no one is allowed to invoke our revolutionary heritage without appearing partisan.
Further, he ignores half of the complaint—that Britain had granted to the East India Tea Company a monopoly on tea. Once again, one gets the feeling he has not actually read what he claims to have read.
Ah, but I was saving the titular lameness of Akhil’s cruddy little editorial for the end, when he goes all Godwin’s law* on this:
In 1857, another judge named Roger distorted the Constitution, disregarded precedent, disrespected Congress and proclaimed that the basic platform of one of America’s two major political parties was unconstitutional. The case was Dred Scott vs. Sanford, involving a slave who sued for his freedom because he had lived with his master in places where Congress had banned slavery. In an opinion by Chief Justice Roger Taney, the court not only ruled against Scott, saying that even free blacks were not citizens and therefore had no right to sue; it also declared the Missouri Compromise, which had outlawed slavery in Northern territories, unconstitutional.
History has not been kind to that judge. Roger Vinson, meet Roger Taney.
Oh, sure, Akhil, he is just like Roger Taney of the Dred Scott decision. Aside from the fact that Vinson was affirming individual freedom from a tyranny over our lives and deaths, while Taney was busy affirming tyranny over a particular race’s lives and deaths. Aside from that, the two men are practically twins!
I mean if anyone sounded like Taney, it would be the people currently arguing for the government to have unlimited power over us, Professor. To quote Charles Lane:
if, in the name of that noble goal, you construe Congress’s power to regulate interstate commerce so broadly as to encompass individual choices that have never previously been thought of as commercial, much less interstate, there would be nothing left of the commerce clause’s restraints on Congress’s power. And then, the argument goes, Congress would be free to impose far more intrusive mandates. Judge Vinson suggested that Congress “could require that people buy and consume broccoli at regular intervals,” and that is hardly the most absurd or mischievous imaginable consequence.
Amar wants to interpret the constitution so that it can destroy individual freedom. And he has the chutzpah to compare those who oppose this to advocates of slavery. No one does Orwell like the left.
And Akhil Amar should be ashamed of this bit of hackery.
——————
* Yes, I know that Godwin’s law technically is about invoking Nazism. But you have to admit that invoking slavery is in the same realm of lameness, and hyperbole.
————–
Update: Some commenters at Volokh correctly point out that the Southern slaveholder would have claimed that Dred Scott was a victory for individual freedom—the freedom to hold others in bondage. That is correct to a point and recalls one of my favorite lines from Lincoln:
The shepherd drives the wolf from the sheep’s throat, for which the sheep thanks the shepherd as a liberator, while the wolf denounces him for the same act as the destroyer of liberty, especially as the sheep was a black one.
And here it is in context, in case Lincoln was being too subtle, discussing Maryland’s gradual emancipation laws:
The world has never had a good definition of the word liberty, and the American people, just now, are much in want of one. We all declare for liberty; but in using the same word we do not all mean the same thing. With some the word liberty may mean for each man to do as he pleases with himself, and the product of his labor; while with others the same word may mean for some men to do as they please with other men, and the product of other men’s labor. Here are two, not only different, but incompatable things, called by the same name—liberty. And it follows that each of the things is, by the respective parties, called by two different and incompatable names—liberty and tyranny.
The shepherd drives the wolf from the sheep’s throat, for which the sheep thanks the shepherd as a liberator, while the wolf denounces him for the same act as the destroyer of liberty, especially as the sheep was a black one. Plainly the sheep and the wolf are not agreed upon a definition of the word liberty; and precisely the same difference prevails to—day among us human creatures, even in the North, and all professing to love liberty. Hence we behold the processes by which thousands are daily passing from under the yoke of bondage, hailed by some as the advance of liberty, and bewailed by others as the destruction of all liberty. Recently, as it seems, the people of Maryland have been doing something to define liberty; and thanks to them that, in what they have done, the wolf’s dictionary, has been repudiated.
So yes, the wolf and the sheep would disagree on what constitutes liberty. But Lincoln was no moral relativist. He believed that the dictionary of the wolf should rightly be repudiated. He knew what liberty was.
[Posted and authored by Aaron Worthing.]
Refusing to Let Congress Force People to Buy Healthcare is Like Refusing to Let Congress Ban Slavery
The juxtaposition is rather striking.
aunursa (a2a019) — 2/7/2011 @ 2:24 pmAnother definition of chutzpah is the government mandating that hospital emergency rooms provide care to whoever walks up… then using that as an excuse to foist the mandate on us.
steve (369bc6) — 2/7/2011 @ 2:29 pmFor someone frequently called one of the top 20 constitutional scholars in the country, Amar’s effort is truly embarrassing. I think even timb could have done better.
daleyrocks (479a30) — 2/7/2011 @ 2:51 pmExcellent post.
Steve, the law does not require hospitals to have emergency rooms, only that, if they have one, all comers must be accepted. For many years, the Good Samaritan Hospital in downtown LA, and one of the largest hospitals in the city, did not have an emergency room.
We once got a woman who had been shot through heart with a crossbow. She had insisted that the ambulance take her there because she had previously had elective surgery there. It was an East Asian firedrill while we tried to prep her for the OR.
She did fine. A tenant in the building she managed shot her with his crossbow.
Mike K (8f3f19) — 2/7/2011 @ 2:58 pmI daresay Lincoln and Vinson would have gotten along famously, whereas with Amar, not so much. I find it frightening that a teacher of Constitutional Law should be pushing the concept of more government intrusion in our lives due to the Constitution versus the thrust of the Constitution as a limiter of government intrusion. I feel progressive thought has taken hold and will be the downfall of America if attacks like this continue.
Nick Shaw (71b010) — 2/7/2011 @ 3:54 pmDidn’t McCollough v. Maryland also state that regulation of health was not within the powers of the federal government but was wholly within the province of state governments? I believe Chief Judge Marshall wrote pseudonymous articles about this decision in McCullough and its limitations and also brought up health care as a purely state endeavor not encompassed by the interstate commerce clause.
eaglewingz08 (74f660) — 2/7/2011 @ 4:06 pmeagle i never heard anything like that about the decision, but if you could back that up, that would be awesome.
Aaron Worthing (73a7ea) — 2/7/2011 @ 4:15 pmAaron…
You wouldn’t be willing to share what Amar did to so earn your ire, would you?
Scott Jacobs (d027b8) — 2/7/2011 @ 4:38 pmScott
No, but if he ever tries to be a federal judge or take certain other federal offices, congress will know what he has done.
Aaron Worthing (73a7ea) — 2/7/2011 @ 5:22 pmOT – More Bridge Building – “GUILTY! Moderate Muslim Beheader Convicted of Islamic Honor Killing in New York, “Hassan may have been conscious when the defendant started to behead her””
daleyrocks (479a30) — 2/7/2011 @ 5:22 pmI’ve found Mr. Amar’s contribution to constitutional philosophy, quite underwhelming, not to say, totally blinkered, so this doesn’t surprise me very much,
narciso (e888ae) — 2/7/2011 @ 6:19 pmJust one example; http://www.slate.com/id/2186750/
narciso (e888ae) — 2/7/2011 @ 6:21 pmhttp://volokh.com/posts/1227595084.shtml
narciso (e888ae) — 2/7/2011 @ 6:23 pmAn important quibble: It isn’t health care we’re being forced to buy, it is health insurance. Not the same thing.
And this is where the mandate supporters’ argument falls apart. While everybody may be a consumer of health care, they’re not necessarily a consumer of health insurance. And health insurance doesn’t influence the cost of health care, it merely is a means of allocating who pays for (most of) the health care that is consumed (whether someone has insurance or not, the cost of treating them in the ER is pretty much the same). But even if we were to accept that health insurance affects the cost of health care, if Congress has the ability to mandate we buy something that merely affects the price of health care, then why couldn’t they mandate we do lots of other things that affect the price of health care… like buy and eat broccoli?
steve (254463) — 2/7/2011 @ 6:25 pm“The central issue in the Obamacare case is how much power the Constitution gives Congress”
That’s true, and there’s at least two things that Congress has no constitutional power to do in that package of laws.
First they have no delegated power to subsidize health care for anyone, and it’s flatly unconstitutional when they do so. This is not something they have the power to levy taxes to pay for. Believe it or not I don’t want to pay for your freaking medical bills and there is no legitimate power that the federal government has that can make me do so.
Second they have no delegated power to force me to buy anything I don’t feel like paying for (unless it’s specified in the Constitution…like paying for the Army, for example, that you gotta do). Making people buy whatever a bunch of left wing halfwits think people ought to be forced to own, is not a power that Congress has. They can’t legally make me buy a health insurance policy. There’s nothing in the Constitution that allows that..least of all the so-called interstate commerce clause.
Article 1 of the United States Constitution enumerates Congress’ powers. They can coin money, but they can’t make me pay for your medical bills or require me to buy a health insurance policy.
IOW…the whole thing is totally illegal…kinda like Social Security and most other federal government programs. Business as usual for the Left, and the Democrat Party.
And, Akhil Amar is a complete moron.
Dave Surls (6c3f1a) — 2/7/2011 @ 6:31 pmOff topic– but some of you may be interested in this-
breitbartfan77 (5f34ac) — 2/7/2011 @ 6:36 pmMMFA employees jumping ship? Or just another front?
http://bullfightstrategies.com/
A question, if I may:
IIRC, there was a ruling that some poor farmer was breaking the law for simply growing more grain than he was supposed to, which sounds like an outrageous thing; as this suggests that while it may be beyond Congress to pass a law requiring we eat broccoli, they can pass a law determining how much broccoli we can grow on our own property, no matter whether we sell it, eat it, feed it to pigs, use it to
torturebuild character in children, or spray lacquer on it to use as trees with a model train set or a dinosaur dinorama.Do I recall correctly? Is there any possibility this will be overturned? If I remember this correctly, it would seem that a Congress that can tell you what you can or can’t grow in your back yard (that is not an illegal substance) has already overreached quite a deal.
MD in Philly (3d3f72) — 2/7/2011 @ 6:45 pmThere’s also the fact (as Professor Volokh points out) that Taney’s ruling applied to congress’s undoubted plenary power to legislate with respect to US territories–not the states.
But who would expect an affirmative-action hire at Yale to grasp this?
Danube of Thought (e3fabc) — 2/7/2011 @ 6:46 pmMD in Philly, the case you have in mind is Wickard v. Filburn (1942). It is not likely to be reversed, and hopefully will forever stand as the high-water mark of congressional overreaching.
Danube of Thought (e3fabc) — 2/7/2011 @ 6:48 pm#16- It looks to me that some MM folk wanted the freedom to be more explicitly left-leaning.
MD in Philly (3d3f72) — 2/7/2011 @ 6:50 pmDanube
To be fair, Akhil is not an affirmative action hire. He’s just a lightweight who does a good job making others think he is not a lightweight.
MD
Wickard is the case, Danube is right. And it was pretty much affirmed in Gonzales v. Raich. I won’t say it will never be struck down, but it won’t be struck down soon, that is for sure.
And its a very high, high water mark, that is for sure.
Aaron Worthing (73a7ea) — 2/7/2011 @ 6:53 pmThank you Danube (or should I say Danke?)
Other than the fact that the Supreme Court rarely overrules itself, to my naivete’ it seems that as long as that stands, the folk who say the fed govt. has no limits on its power have a good argument.
MD in Philly (3d3f72) — 2/7/2011 @ 6:55 pmWell, I have to say I agree with everyone here, but I have just got to know… Does this Professor think that no court should decide whether this whole Oh,Bummmer Care fiasco is right or wrong, constitutional, etc, except the US Supreme Court? Then what would be the point of having the lower Federal Courts?
Hey! The man just found a way to cut some money from the Federal Budget!
Of course, I’m quite willing to bet he doesn’t feel that way about Judge Walton’s ruling on Prop 8, does he?
flicka47 (ed77bd) — 2/7/2011 @ 6:57 pmWhy do you racists love slavery? Violent teabaggers.
JD (d4bbf1) — 2/7/2011 @ 6:59 pmTaney’s decision was correct at the time, since the 5th Amendment did protect the right to property, but did not forbid slavery.
Dred Scott is still good law with respect to the constitutional provisions it interpreted which were not subsequently superseded by constitutional amendment. Among its holdings that are still good law is that citizens have a right to keep and bear arms wherever they go.
It depends on if he heard of Baker v. Nelson.
Michael Ejercito (64388b) — 2/7/2011 @ 7:18 pmAmar actually has long been in possession of only a single skill, the ability to type ludicrous arguments with a straight face.
Its not a skill that is prized anywhere by with con men and lawyers.
SPQR (26be8b) — 2/7/2011 @ 7:24 pmMD, the precedent you’re talking about is indeed Wickard v Filburn, and any court that considers it a valid ruling (which is to say all the courts that currently exist) would indeed uphold a law prohibiting us from growing more broccoli than we’ve been given permission to grow, so long as it’s part of a national scheme to control the price of broccoli. There is an interstate market in broccoli, and its price depends on the amount grown, so if Congress wants to raise the price it can prohibit people from growing too much of it. But that does not mean Congress can also order us to grow more broccoli than we want to, or indeed any at all. If all broccoli farmers went on strike, and the price went through the roof, there is nothing Congress can legitimately do about it, even under Wickard.
Danube and Aaron, Wickard can’t “stand as the high-water mark of congressional overreaching”, because it’s already been surpassed by Raich. Wickard only concerned goods in which there is a legitimate national market, which Congress has decided to regulate. Raich went further: 1. There is no legitimate interstate market in marijuana. 2. Congress has no interest in regulating the illegal market; it wants to destroy it, not regulate it, so what difference does it make what prices are? 3. While it could legitimately be assumed that had Mr Filburn not grown enough wheat for his own use he’d have bought some, thus raising the national price, it cannot be assumed that Ms Raich would have done the same; surely Congress may not assume that a person will commit a crime, and base its calculations on that assumption!
Milhouse (ea66e3) — 2/7/2011 @ 7:28 pmAny decision that leads to the death od 600,000 people, can’t possibly be salvaged, neither can these conclusions;
* Any person descended from Africans, whether slave or free, is not a citizen of the United States, according to the Constitution. (Note: Slaves were not considered citizens at the time of the Constitution but were counted as 3/5 persons. There were free blacks in several of the thirteen states when the document was written. Their number increased dramatically in the Upper South after the Revolution as numerous slaveholders manumitted their slaves.)
narciso (e888ae) — 2/7/2011 @ 7:28 pm* The Ordinance of 1787 could not confer either freedom or citizenship within the Northwest Territory to non-white individuals.
* The provisions of the Act of 1820, known as the Missouri Compromise, were voided as a legislative act, since the act exceeded the powers of Congress, insofar as it attempted to exclude slavery and impart freedom and citizenship to non-white persons in the northern part of the Louisiana Purchase.[3]
If there is any hope for this republic, it must be reversed.
Milhouse (ea66e3) — 2/7/2011 @ 7:30 pmYou know, I’m starting to think that the term constitutional scholar does not mean what we used to think it did.
elissa (9a28b3) — 2/7/2011 @ 7:37 pm“it seems that as long as that stands, the folk who say the fed govt. has no limits on its power have a good argument.”
MD in Philly – Not sure I agree. In both Wickard and Raich, the people involved were actually doing something, growing wheat and MJ, respectively. Who cares whether it was really interstate or not. With ObamaCare we are talking about forcing people who choose to do nothing but breathe to engage in commerce they would otherwise not have engaged in. Definitely not the same fact pattern.
daleyrocks (479a30) — 2/7/2011 @ 7:42 pm“Taney’s decision was correct at the time…”
No, it wasn’t. It was complete blithering hogwash then…and it still is.
Dave Surls (6c3f1a) — 2/7/2011 @ 7:51 pmMichael
> Taney’s decision was correct at the time, since the 5th Amendment did protect the right to property, but did not forbid slavery.
No, that is not true. The founders regularly banned slavery in the territories. in fact i don’t believe any of the territories allowed slavery until the MO compromise.
the key thing you are not getting is that the 5th A doesn’t guarantee a right to property, only that you will not be deprived of it without due process. the due process here is “okay, you crossed into federal territory. We will hold a trial and if it is found that you are holding men in bondage, we will take them from you. that is your due process.”
By your logic, i can buy a MJ cigarette in California and expect to hold on to it as i drive to Maine and no other state can take my joint from me. That has never been the law of the land.
Aaron Worthing (73a7ea) — 2/7/2011 @ 8:01 pmI left out the most offensive statement, which belonged better in 1960s Johanesburg, than anything in this country
narciso (e888ae) — 2/7/2011 @ 8:04 pmWait, wait, wait. Congress can force somebody to purchase something as long as it is “part of” some broader power?
But, according to you, there is no Congressional power for something like that. Congress has the power to “arm” militias, sure. But nowhere does it have the power to force people to buy guns for the militia.
You see what I am getting at?
Why is forcing people to buy guns, etc. constitutional if it is part of a larger power of Congress, but when it comes to people being forced to buy insurance as part of a larger health care framework, that same logic doesn’t work?
Bit hypocritical there.
Yes, the individual freedom to be a free rider while everyone else pays higher premiums, effectively subsidizing the free rider’s health care costs.
Apparently, we only care about the freedom of the free rider, and not 99% of the rest of us.
daley:
Hard to find anyone who doesn’t engage in the health care system. I think characterizing people as being “inactive” or “passive” or “doing nothing” or “just breathing” is the “death panels” of this particular debate.
Kman (26c32e) — 2/7/2011 @ 8:43 pmSo in Wickard it was argued that the Congress had authority to do things to regulate the price of wheat (interstate commerce), and if someone grew their own wheat and therefore not be in the need to buy wheat, that would depress demand and cost (if ever so slightly). So Congress can make laws determining what kind of insurance a person can but if they buy it, but not tell them to buy it. Is that right?
Thank you for your taking time to explain this.
MD in Philly (3d3f72) — 2/7/2011 @ 8:46 pmSo now kmart is back to the tire free rider BS. Shocka.
JD (d4bbf1) — 2/7/2011 @ 8:53 pm“Hard to find anyone who doesn’t engage in the health care system.”
Kman – They can decide to do so at the time of their own choosing and perhaps pay for it themselves, not necessarily now through unneeded government mandated insurance, hmmm.
There have been many years when I carried health insurance when I submitted exactly zero claims. Such examples are not hard to find at all. QED.
daleyrocks (479a30) — 2/7/2011 @ 8:54 pmI’ll try to use small words…
Congress has the authority to raise militias spelled out plainly in the Constitution.
The Constitution makes no mention, in any way shape or form, of healthcare insurance.
Scott Jacobs (d027b8) — 2/7/2011 @ 8:54 pmScott:
I’m not even going to debate that, because it’s not even a serious legal question. Even Judge Vinson — as well as Obamacare opponents — recognize that Congress can regulate healthcare insurance, since that does fall within the umbrellla of “interstate commerce”.
The debateable question — the one on the table — is the individual mandate.
Kman (26c32e) — 2/7/2011 @ 8:58 pmKman
> Congress can force…
Reread my post on the necessary and proper clause and health care over and over again until you get it. I have been completely consistent, contrary to your deceptive claims.
https://patterico.com/2010/12/14/is-the-mandate-necessary-and-proper-to-carry-obamacare-into-execution/
> But, according to you, there is no Congressional power for something like that.
Ah, as usual mischaracterizing what I said.
> Apparently, we only care about the freedom of the free rider, and not 99% of the rest of us.
How is your freedom limited by the free rider?
Your taxes might be increased but your freedom is not decreased.
Aaron Worthing (73a7ea) — 2/7/2011 @ 9:00 pmYou know simple mathematical odds, would dictate
narciso (e888ae) — 2/7/2011 @ 9:01 pmKfed, would get something right, but he’s a virtual
improbability drive, he bends the curve into a singularity.
The real debate is – what would Palin do?
EricPWJohnson (662d02) — 2/7/2011 @ 9:01 pmMD, right now there is no interstate market in health insurance, so I don’t think Congress could regulate it like that; but it could easily create one and regulate it, and nullify any state laws that interfered with it.
Milhouse (ea66e3) — 2/7/2011 @ 9:03 pmAnd many people who are in emergency rooms right now who DON’T have health insurance.
It’s a fallacy to think of health insurance as a product akin to a fungible good, like a car or a candy bar, which you buy whenever you need it. Nobody PLANS for most of the health care services (especially the expensive stuff), much in the same way that nobody PLANS to have a car accident and need auto insurance.
Kman (26c32e) — 2/7/2011 @ 9:04 pmkman
the product is the risk management. the trade off is your money.
oh, and insurance companies getting to invade your privacy. funny i thought liberals liked privacy. Oh, and taking your money and deciding what to do with it, which is violating privacy as the right to self-autonomy. you know the right vindicated in Roe and Lawrence v. Texas? My body my choice, unless obama wants my body, is that it?
Aaron Worthing (73a7ea) — 2/7/2011 @ 9:09 pmMy health care costs are increased by the free rider. That limits my spending ability, i.e., the freedom to spend my money the way I want to.
It’s basically the same argument that conservatives use regarding welfare. Except instead of the government forcing me to subsidize somebody else, it’s the insurance companies.
The same thing happened with automobiles, and now, in most states, you have to have auto insurance if you’re going to drive. Let’s not pretend this is THAT different.
Kman (26c32e) — 2/7/2011 @ 9:09 pmSo, you kman would be OK with the government forcing you to buy a gun today?
It seems to me that we are arguing about what some may do or not do by free will. Do you want to force the Amish to buy insurance against their will? Or any other group despite their beliefs?
How about the Adventists? Or the SEUI and GE exemptions?
Do only those who agree with you deserve to decide how health care should be given? Or you just here to administer leftist claptrap that we already know?
Ag80 (7a9f97) — 2/7/2011 @ 9:09 pmYou can thank McCarran/Ferguson for that bit, one was the template for Sen.Geary in the Godfather,
narciso (e888ae) — 2/7/2011 @ 9:09 pmthe other the villain in Tucker,
Kman
> My health care costs are increased by the free rider.
then ask for them to be cut off. But that doesn’t justify taking their freedom.
Besides if you considered high taxes to be a loss of freedom, then how the f— can you support obama?
> The same thing happened with automobiles, and now, in most states, you have to have auto insurance if you’re going to drive. Let’s not pretend this is THAT different.
Yes, it is, because THEY ARE STATES. Because under the federal constitution, all powers not granted are denied. the federal government is not granted the general police power (except in territories). really kman, how can you be this ignorant and claim to be a competent lawyer? this is constitutional law 101.
Aaron Worthing (73a7ea) — 2/7/2011 @ 9:12 pmHealth care is not fungible. And please stop with the stupid comparison to auto insurance.
Ag80 (7a9f97) — 2/7/2011 @ 9:13 pmThe product is a hedge against risk (with the tradeoff being your money).
But some people want to game the system, with the tradeoff being other people’s money.
And to the extent that insurance companies will “invade my privacy”, that’s been going on pre-Obamacare, and nothing in Obamacare makes it worse. Nice strawman though. Could use a hat.
Kman (26c32e) — 2/7/2011 @ 9:13 pmOf course it is states. I never said otherwise.
I point it out in response to your pearl-clutching about how this is so preposterous and unheard of, and such an affrontery to mankind, etc.
States have addressed the freeloader problem with respect to insurance, by forcing people to buy auto insurance. And the world didn’t stop spinning, and no state that has done so has gone socialist.
Kman (26c32e) — 2/7/2011 @ 9:17 pmSorry, no strawman, you’re the one who wants to force a market product on the unwilling.
Ag80 (7a9f97) — 2/7/2011 @ 9:17 pmTo kmart, regulate means force to buy. The idea that checkbox cannot be planned is laughable. You dnt have to pretend auto insurance is different, it demonstrably is different.
JD (d4bbf1) — 2/7/2011 @ 9:28 pmkman
Btw, it is now your theory that every time someone does something that increases my taxes, especially health care costs, that i can control that behavior?
Okay, so then no more abortions, right? because abortions are taxpayer funded (through planned parenthood), and thus each abortion increases my taxes.
Also so does your smoking. And your gay lifestyle.
my gosh, we can control so much of your life, under your theory.
Aaron Worthing (73a7ea) — 2/7/2011 @ 9:37 pmKman
> I point it out in response to your pearl-clutching about how this is so preposterous and unheard of,
By pointing out something i mentioned in that radio show. Well, good show, there.
Aaron Worthing (73a7ea) — 2/7/2011 @ 9:38 pmThe states’ requirement for auto insurance is to cover the other motorist. If you choose to have no coverage on yourself, no problem. And, as has been covered before, if you choose not to drive, you have no obligation to purchase auto insurance of any kind.
navyvet (db5856) — 2/7/2011 @ 9:39 pmnavyvet – it does not care. The only thing auto and health insurance have in common is the word insurance. They are as alike as wombats and Icelandic kimchi.
JD (d4bbf1) — 2/7/2011 @ 9:46 pmI will give the lefties this much, though, when someone threatens their profits, they are always the first to sue:
http://latimesblogs.latimes.com/entertainmentnewsbuzz/2011/02/michael-moore-harvey-weinstein-fahrenheit-911.html
So predictable and so, what’s the word? Capitalist?
Ag80 (7a9f97) — 2/7/2011 @ 9:48 pmKman – I find it interesting that conventional progressive wisdom says that Congress has the same absolute power over individuals that dictators or Monarchs would in other countries. Somehow I think this country’s founders would be aghast at that conclusion and reasonable interpretations of the Constitution would have difficulty arriving at such an absurd place. Nevertheless, that is what you are concluding, unless of course it is some conservative idea Congress is ramming through, then all bets are off.
daleyrocks (479a30) — 2/7/2011 @ 9:53 pmCongress has the authority to raise militias spelled out plainly in the Constitution.
Mandating that every adult male have a musket is not a necessity for raising a militia. One could lay up a communal arsenal, muskets, balls, and powder issued as needed to those who have no musket of their own; one could leave the matter unaddressed and be content with only those who choose to own a musket, or are able to borrow one from a neighbor or relative, appear when the militia is called out.
So it is relevant to the individual mandate for health care.
kishnevi (fb9343) — 2/7/2011 @ 9:57 pm“Mandating that every adult male have a musket is not a necessity for raising a militia.”
kishnevi – Absolutely. They can fight with pitchforks if necessary.
daleyrocks (479a30) — 2/7/2011 @ 10:03 pmNote to Amar: Dude. Your chance to get nominated to SCOTUS has passed. Give it a rest and stop sucking that thing, already.
Mitch (e40959) — 2/7/2011 @ 10:41 pmEven Judge Vinson — as well as Obamacare opponents — recognize that Congress can regulate healthcare insurance, since that does fall within the umbrellla of “interstate commerce”.
Actually, that’s not so. Congress has barred health care insurance from being sold across state lines.
Next trope, please.
Mitch (e40959) — 2/7/2011 @ 10:42 pm“Mandating that every adult male have a musket is not a necessity for raising a militia.”
Mandating that every American purchase health insurance is not necessary to reform the delivery of health care in the U.S.
daleyrocks (479a30) — 2/7/2011 @ 11:08 pmHow in the world did the general public form the impression that some “legal scholars” are contemptible, immoral whores who start with the conclusion they want and then work backward, picking and choosing and misleading and distorting, until they have arrived at a starting premise, all to hoodwink the citizenry?
‘Tis a puzzlement.
Murgatroyd (fd5fcd) — 2/7/2011 @ 11:16 pmNew from kman records: another disc containing all of the goal-post moving apples to oranges comparisons that you love to dance to!
Icy Texan (ec4b79) — 2/7/2011 @ 11:39 pmi’d like to point out that Congress lack the power to make me buy health care insurance.
they can mandate that i do so (constitutional arguments notwithstanding) and even attempt to compel me to through fines and other punishments, but they can’t MAKE me do it if i decide to tell them to go pound sand.
i just have to be willing to pay the price for doing so, which is still less than the cost of being a slave. besides: if they put me in jail THEY have to give me free health care or i can sue them and win.
redc1c4 (fb8750) — 2/8/2011 @ 12:49 amThere once was a law-review article titled “Akhil Amar: Elitist Populist and Antitextual Textualist.” I never read it, but the title, especially its last two words, seem quite appropriate to describe him.
Alan (3a776a) — 2/8/2011 @ 5:02 amAmar’s citation to the militia law is specious largely for the reasons you have spelled out. I wonder if some of the posters have even read the pertinent sections of the Constitution, which grants Congress the power:
At the time of the Constitution, the “milita” was a term understood to refer to the adult male population who were expected to be armed and ready to be called into service when needed.
The Militia Act of 1792 provided in part:
This is a direct exercise of powers expressly granted to Congress, “To provide for organizing, arming, and disciplining, the Militia.”
The comparison to the individual mandate is utterly specious. The connection of the individual mandate to the power to “regulate Commerce . . . among the several States” is far more tenuous.
Bored Lawyer (5f203c) — 2/8/2011 @ 5:08 amAlan
here’s one of many ways to read that article. but it costs money. looking for a free copy somewhere…
http://heinonline.org/HOL/LandingPage?collection=journals&handle=hein.journals/siulj16&div=28&id=&page=
Aaron Worthing (e7d72e) — 2/8/2011 @ 5:40 amAlso, there is the fact that the word “regulate” had a slightly different meaning in the late 1700s. When the founders used the term “well regulated” with respect to militias, they meant “orderly” or “trained”. When they spoke of the “regulation” of interstate commerce, they wanted to promote and make orderly the trade between the states. They most certainly did not mean to interfere in any and all things that might by some rhetorical gymnastics have something to do with interstate commerce. So the interstate commerce clause is entirely innappropriate as a basis for supporting Obamacare.
Joe P. (810241) — 2/8/2011 @ 5:45 amjoe p.
well, if we really wanted to get technical, commerce, as understood at the time, was about the trading of goods. insurance didn’t count. but going back to the original publicly-understood meaning of the constitution? why that is crazy talk!
Aaron Worthing (e7d72e) — 2/8/2011 @ 6:09 amre #52:
Yeah, I put the people who passed a law banning ‘preexisting condition’ disbarment from purchasing a new insurance plan into that category. Your problem isn’t that the mandate is a good idea. It’s that violating actuarial reality is a hugely bad one, and the mandate was the only B.S. they could make up that would pretend to make it revenue neutral.
The new law categorically assists those who want to ‘game the system’ and changes health insurance into some sort of group-pool prepaid utility averaging…but only when you decide to opt in. After all, they’re not going to ‘enforce’ the mandate anyway.
rtrski (192cf0) — 2/8/2011 @ 6:09 amHere’s another example from one of Obama’s mentors from Harvard, who happens to be working in the Justice Department;
http://www.nytimes.com/2011/02/08/opinion/08tribe.html?_r=2&ref=opinion
narciso (e888ae) — 2/8/2011 @ 6:12 amAaron, Thanks for the comment. I don’t really object much to the extension of the meaning of terms to account for changes in knowledge and technology (e.g. freedom of the press and the internet). But the founding generation was certainly familiar with the concept of insurance (particulary with reference to shipping), and if there is no evidence that they considered purchasing of the policies as interstate commerce, then I agree it is another good reason to object to obamacare.
Joe P. (810241) — 2/8/2011 @ 6:29 amnarc
thanks. i had seen it and i am working on a fisking of him.
Aaron Worthing (e7d72e) — 2/8/2011 @ 6:35 amCongress has the power to arm the militia under Article I. How it does so is up to Congress. That’s implicitly understood, even without the Necessary & Proper Clause (as Marshall argued). And that’s why Congress could force people to purchase arms.
Similarly, Congress has the power to regulate interstate commerce, and the health care system qualifies as interstate commerce (and every judge ruling on this has agreed so).
Why then does Congress suddenly lack the powers it has already had, to wit, to “enact laws in effectuation of its enumerated powers that are not within its authority to enact in isolation” (Raich, Scalia concurrence)?
The answer? It doesn’t. Congress CAN enact the individual mandate… UNLESS it is something not “plainly adapted” to the legitimate goal of Congress.
So sayeth Scalia, not just Amar.
Kman (d30fc3) — 2/8/2011 @ 6:38 amIf you were to ask George Washington whether Haym Salomon did or did not engage in commerce, what do you think he would say? If what he did wasn’t commerce, then what was it? On the contrary, the public in 1788 surely did regard insurance and banking as commerce, and if it was carried out across state or national borders then it was subject to federal regulation.
Milhouse (ea66e3) — 2/8/2011 @ 6:40 amSigh. Congress can regulate health insurance, or at least it could if there were a national market for it; what they can’t do is regulate those who are not involved in that market, because they don’t want any. In the Militia Act Congress was properly regulating the members of the militia; anyone not in the militia (e.g. women, children, old men, Quakers and Mennonites, etc.) had no duty to do anything.
Milhouse (ea66e3) — 2/8/2011 @ 6:43 amEvery. Single. Time. That I see a sentence like that, my head goes to a bad place.
Without fail.
Scott Jacobs (131cb6) — 2/8/2011 @ 6:47 amWell, that argument was shot down years ago in Wickard v. Filburn (1942)
Kman (d30fc3) — 2/8/2011 @ 6:47 amTechnically, it isn’t interstate commerce, since you can’t get it from another state. But I quibble.
Because NOT BUYING SOMETHING is not a form of commerce. Period. Full stop.
Kman, let me ask you a simple question I would like you to answer before we continue – I don’t currently own a car – have I engaged in any form of commerce in not buying a car?
Scott Jacobs (131cb6) — 2/8/2011 @ 6:50 am“Well, that argument was shot down years ago in Wickard v. Filburn (1942)”
I shot down that argument in 31 and 38. You ignored it. Sorry Kman.
Show a precedent for the federal government a precedent for making consumers purchase a product they do not want to buy which is not specifically enumerated in the constitution.
daleyrocks (479a30) — 2/8/2011 @ 6:57 amAuto insurance is not a federal government precedent, sorry.
daleyrocks (479a30) — 2/8/2011 @ 6:58 amYes, but nobody is invoking the Commerce Clause as the justification for the individual mandate. It falls under the Necessary & Proper Clause.
In a nutshell, it’s like this:
(1) Under Article I, Congress can regulate interstate commerce (or things that affect interstate commerce)
(2) Health care/health care insurance is interstate commerce. Therefore, Congress can regulate it.
(3) In exercising any of its Article I powers, Congress also has the power to pass laws to make those other powers effective. This is possible under the Necessary & Proper Clause. (Example: If Congress has the power to regulate the price of wheat under the Commerce Clause, it has the “necessary and proper” power to impose sanctions and fines on those who violate the price controls on wheat)
(4) The individual mandate is constitutional under the Necessary & Proper Clause
Kman (d30fc3) — 2/8/2011 @ 7:00 amCongress may be able to regulate the insurance providers, but it can’t force people to buy the product.
Some chump (e84e27) — 2/8/2011 @ 7:06 amLet’s take Tribe’s Social Security argument – If you are not working or run your own business and don’t pay yourself wages, you do not have to pay social security taxes. You also do not collect for benefits for what you do not pay in.
He presumes all who do not elect to purchase health insurance will be free riders when this is clearly not the case. It is one of the layers of assumptions Vinson talks about in his decision which opponents conveniently like to ignore.
daleyrocks (479a30) — 2/8/2011 @ 7:12 amThe elephant in the room, is how they seem to miss the purpose of the Commerce Clause, arising from the conflicts from the Articles of Confederation,
narciso (e888ae) — 2/8/2011 @ 7:17 amI see kmart is spitballing, running around with the goalposts, and making a very pubic arse of himself, yet again. In kmart’s world, there would be virtually no limit to what the Federal govt could force you to do/buy/etc …
JD (6e25b4) — 2/8/2011 @ 7:17 amIn kmart’s dictionary regulate means force to purchase.
JD (2da347) — 2/8/2011 @ 7:20 amKman
You have been asked multiple times whether you would support the Federal goverment forcing you to buy a gun today. Yet each time, you have refused to answer the question.
Bit weasely there.
Blue Ox (ff919a) — 2/8/2011 @ 7:35 amKman
> In exercising any of its Article I powers, Congress also has the power to pass laws to make those other powers effective.
Once again, you try to win your arguments not by quoting people but by ignoring what the constitution says. Congress was NOT granted a broad power to mitigate the damage of its stupid ideas. and the last time we tangled over that point, i showed how your argument could lead to involuntary servitude for all americans.
Aaron Worthing (e7d72e) — 2/8/2011 @ 7:43 amProf Althouse took some good whacks at Mr Tribe, and his sophistry.
JD (0d2ffc) — 2/8/2011 @ 7:46 amAaron,
When was the last time 3/5ths of the states sued to get a law overturned?
EricPWJohnson (6287c0) — 2/8/2011 @ 7:49 amBlue Ox:
You (and others) can try to make this about ME and my politics all you want, but I’m not terribly interested. Neither is the Constitution. This is a legal matter, not a political one.
“By quoting people“? I’m not quoting Kathy Lee Gifford here. I’m quoting Scalia, who many of you would say is pretty knowledgeable about the subject (and, in any event, will be instrumental in the outcome of the issue).
Kman (d30fc3) — 2/8/2011 @ 7:50 amKman
> Yes, but nobody is invoking the Commerce Clause as the justification for the individual mandate
that is a lie. The government is. Lawrence Tribe is. Liberals have been doing that since this controversy began. Hell, you have.
just because you have chosen to retreat from your ridiculous claim that sitting on your hind end is commerce, doesn’t mean you didn’t say it, mindlessly repeating the talking points that have been going around since the beginning.
Aaron Worthing (e7d72e) — 2/8/2011 @ 7:50 amEric
we are up to 30 states? i thought it was 26 or 27.
And honestly i don’t know the answer to your question.
Aaron Worthing (e7d72e) — 2/8/2011 @ 7:51 am“the key thing you are not getting is that the 5th A doesn’t guarantee a right to property, only that you will not be deprived of it without due process.”
– AW
Bingo… and I’ll add that “deprived” implies that someone takes your property away from you. That’s all well and good in the case of the government, but much of Dred Scott dealt with slaves who ran away of their own volition; what do you do when your property heads for the hills of its own free will (insofar as there’s no “depriving” going on? Answer: rethink your definition of property. Either that, or treat it as a constitutional violation every time some guy accidentally drops his car keys into a storm drain.
As far as the more pertinent thing goes: it does seem to me that Kman’s analogy is relevant (though I disagree with the direction he’s taking it).
Simply put: how can it be proper for Congress to mandate one purchase (muskets) in pursuit of one of its recognized powers (the raising and regulating of a militia), but improper for it to mandate another purchase (health insurance) in pursuit of another of its recognized powers (the regulation of interstate commerce)?
The path of argument I would take would be to argue that both purchase mandates are unconstitutional. In the case of the musket mandate, it seems to me that Congress must first raise a militia before it can regulate it; otherwise, (insofar as the notion of the militia extended to every able-bodied male in the minds of the Framers), Congress would be able to regulate every aspect of the lives of able-bodied males at all times, in pursuit of their power to regulate (without first raising) the militia. Which would mean that Congress could basically do whatever they wanted whenever they wanted, right, because we’re their militia and have to do what they say? (As an aside, this interpretation would also seem to imply that the militia must first be called forth before it may be considered “the militia”).
If this seems wrong to anyone (particularly any of you guys with extensive knowledge of precedent/constitutional history), please say so. I’m interested in knowing whether this line of argument holds water, because if it does it seems like a logical (if not precedentially supported) rebuttal to Kman’s argument (which I think is more valid than y’all are giving him credit for).
Leviticus (f0f166) — 2/8/2011 @ 7:56 amThere’s a difference between forcing someone to buy a gun and forcing someone to pay for health insurance (or pay a fine). You are virtually assured of having to obtain medical services or prescriptions at some time in your life. You are not virtually assured of having to shoot someone or something at some point during your life.
Jim (ad29d8) — 2/8/2011 @ 8:00 amYou must have reading problems. Tribe talks about the overall health care regulation as being within the commerce clause….
… and THEN he turns to certain provisions, including the individual mandate. It is here that Tribe starts invoking the Necessary & Proper Clause and , in particular, how Scalia:
Emphasis mine.
Kman (d30fc3) — 2/8/2011 @ 8:02 amAaron
eh whats a state or two….
EricPWJohnson (6287c0) — 2/8/2011 @ 8:02 amScott Jacobs, have you rented a car or taken a plane or train because you don’t have a car? Then to my way of thinking you have engaged in interstate commerce.
Jim (ad29d8) — 2/8/2011 @ 8:02 amKman: I think an argument about whether or not a individual purchase mandate is “necessary and proper” is more of a losing argument than a straight-up Commerce Clause argument, honestly. Congress manages to regulate the hell out of every other industry without individual purchase mandates; the notion that a mandate is necessary in this particular case – that is, that no effective health care system could function without such a mandate – seems doomed to die, in my opinion.
Leviticus (f0f166) — 2/8/2011 @ 8:06 amFor the very simple reason that there are plenty of potentially effective alternatives, that is (if that wasn’t clear from the preceding comment). But I’m going to stop on this thread, because I’m more interested in my other line of argument re: the potential unconstitutionality of a purchase mandate for muskets.
Leviticus (f0f166) — 2/8/2011 @ 8:07 amThis thread of argumentation, that is, not this “thread”/post.
Leviticus (f0f166) — 2/8/2011 @ 8:08 am“Does anyone doubt that the multitrillion-dollar health insurance industry is an interstate market that Congress has the power to regulate?”
Kman – Regulating the industry is one thing, exercising dictatorial powers over its customers is a completely separate issue. See the difference?
daleyrocks (479a30) — 2/8/2011 @ 8:08 amNo. No one is saying that the Federal Govt can’t regulate the industry…
But I am not part of the industry, and thus forcing me to participate in that industry is unconstitutional.
And before you ignorantly say “But you may go to see a doctor, therefore you are participating in that industry”, let me explain something to you.
Health care is not, has never been and never will be the same thing as health care insurance.
Scott Jacobs (218307) — 2/8/2011 @ 8:08 amMitch–Congress has not exactly barred insurance from being sold across state lines. They said that insurance was subject to regulation by the states and not Congress, unless Congress passed laws relating to insurance. See (b) below:
(a) State regulation
The business of insurance, and every person engaged therein, shall be subject to the laws of the several States which relate to the regulation or taxation of such business.
(b) Federal regulation
Jim (ad29d8) — 2/8/2011 @ 8:08 amNo Act of Congress shall be construed to invalidate, impair, or supersede any law enacted by any State for the purpose of regulating the business of insurance, or which imposes a fee or tax upon such business, unless such Act specifically relates to the business of insurance: Provided, That after June 30, 1948, the Act of July 2, 1890, as amended, known as the Sherman Act, and the Act of October 15, 1914, as amended, known as the Clayton Act, and the Act of September 26, 1914, known as the Federal Trade Commission Act, as amended [15 U.S.C. 41 et seq.], shall be applicable to the business of insurance to the extent that such business is not regulated by State Law.
I cant think of a time over 1/2 the states sued – also more states are suing but they have to compel a dem elected Attorney general to bring suit through legislation
EricPWJohnson (96b1d5) — 2/8/2011 @ 8:09 amKman – I am not involved in the business of health insurance. Show me where the commerce clause says the government can regulate my personal decisions please.
daleyrocks (479a30) — 2/8/2011 @ 8:11 amScott, health care is inexorably connected with health care insurance. There’s no way to effectively disconnect the two.
Your argument is sort of like arguing that you’ve only purchased a vegetable at your local store and are therefore not connected with interstate commerce even though the vegetable was purchased in Mexico and transported through several states to get to your store.
Jim (ad29d8) — 2/8/2011 @ 8:13 am“it seems to me that Congress must first raise a militia before it can regulate it”
Leviticus – Which came first, the chicken or the egg?
daleyrocks (479a30) — 2/8/2011 @ 8:13 amWhat about an effective health care insurance system?
Kman (d30fc3) — 2/8/2011 @ 8:13 amKman
> You must have reading problems. Tribe talks about the overall health care regulation as being within the commerce clause
Notice you skip over the government because in fact they are on record in the courts as having done what you claimed no one did.
And tribe did, too:
> The justices aren’t likely to be misled by the reasoning that prompted two of the four federal courts that have ruled on this legislation to invalidate it on the theory that Congress is entitled to regulate only economic “activity,” not “inactivity,” like the decisionnot to purchase insurance. This distinction is illusory. Individuals who don’t purchase insurance they can afford have made a choice to take a free ride on the health care system. They know that if they need emergency-room care that they can’t pay for, the public will pick up the tab. This conscious choice carries serious economic consequences for the national health care market, which makes it a proper subject for federal regulation.
> Even if the interstate commerce clause did not suffice to uphold mandatory insurance, the even broader power of Congress to impose taxes would surely do so.
That’s not necessary and proper. That is straight commerce.
Liar.
Eric
Agreed, if it is not actually unprecedented, it is really rare.
Of course to be fair alot of this has to do with states objecting to unrelated provisions and hoping to use the mandate as the hammer with which they tear down the whole thing. ideally they want vinson’s approach of knocking down the whole law. failing that, they seem interested in playing chicken by stiking the individual mandate and forcing congress to act before the lack of a mandate destroys the health insurance industry.
Aaron Worthing (e7d72e) — 2/8/2011 @ 8:15 am“Leviticus – Which came first, the chicken or the egg?”
– daleyrocks
Is that pertinent here? You can’t regulate what doesn’t exist, unless it exists all the time – and if it exists all the time, you can regulate it all the time. And their aren’t any limits to the regulation of the militia that I know of…
For what it’s worth (and it’s not worth much, I know) the power to raise a militia is listed before the power to regulate a militia in the document itself.
Leviticus (f0f166) — 2/8/2011 @ 8:17 am“What about an effective health care insurance system?”
– Kman
I’d make the same argument, yes.
Leviticus (f0f166) — 2/8/2011 @ 8:18 amThat’s like saying, “Show me where in the commerce clause says that government can regulate wheat prices”. It doesn’t. You are looking for magic words.
Congress here is not regulating your personal decisions any more (or less) than it does when it raises the price of a stamp. Sadly, you can no longer “decide” to pay 36 cents for a First Class stamp anymore. You have to pay whatever the going rate is…. or not pay at all and suffer the “consequences”.
You don’t have to purchase health care either. You can still decide to opt out and pay the fine. And while I understand the objection, there is nothing new about the government penalizing you for inactivity. And if you don’t believe me, try being inactive about paying your federal taxes.
Kman (d30fc3) — 2/8/2011 @ 8:22 amLevit:
What say you to what Tribe has written:
Point being, the insurance industry is different than other industries which Congress can (and does) regulate, if only because the “product” actually requires massive amounts of purchasers in order to “work”.
Kman (d30fc3) — 2/8/2011 @ 8:28 amBut have you ever simply not gone somewhere because you didn’t have a car? Many years ago, I wanted to drive on a long road trip, but did not because my car was unreliable.
Did I engage in interstate commerce by not having a nice car? Nope.
Dustin (b54cdc) — 2/8/2011 @ 8:29 amThat’s just ‘face palm, with an octopus’
narciso (e888ae) — 2/8/2011 @ 8:29 am“Jim” appears to be unwilling to allow kmart to win Douchenozzle of the Day without a fight.
JD (d48c3b) — 2/8/2011 @ 8:33 amKman, the basic flaw in much of your argumentation is that you are not grappling with the concept of a government of limited powers. That is how the Constitution itself was promoted when it was ratified.
Limited powers by definition means the government can do some things, and it CANNOT do other things.
The fact that the government can raise the price of stamps is clearly within an enumerated power –“To establish Post Offices and post Roads.”
Ditto for requiring members of the militia to acquire arms.
The fact that charging for stamps or requiring arms acquisition by the militia and requiring me to purchase health care are similar economically avoids the question entirely: what in the Constitution empowers Congress to enact this law?
This is the basic question to anyone arguing that the individual mandate is Constitutional. In what way is the federal government one of limited powers? Name something that is beyond Congress’s ability to legislate under your interpretation of the Commerce Clause and the Necessary and Proper Clause.
If you cannot come up with anything, then there is a flaw in your reasoning, or the American people were sold a bill of goods.
Bored Lawyer (c8f13b) — 2/8/2011 @ 8:34 amJesus God you’re stupid.
The price of something is indeed a commerce issue.
But making me buy something, at any price, is not the same thing as setting a price for a thing.
I swear to God, are you really this f**king stupid?
Holy Ass of Moses. I think you actually ARE that stupid.
Taxes are not the same as a penalty. Taxes are legal, and the income tax is expressly allowed in the 16th Amendment, and thus you can and should be penalized for failure to pay (unless, apparently, you’re a Democrat, but I digress).
Also, since a tax goes to the government, the government can exact a penalty.
But purchasing insurance is not paying money to the Govt. Therefore, for the Govt. to penalize me for not giving my money to a third party is tantamount to extortion.
How would you feel about the Govt demanding that YOU give ME three thousand dollars a year, and if you don’t you have to pay them $2,500 a year?
I mean, you could opt to not pay me, and just pay the penalty and save yourself $500, but you’re still paying $2,500 you shouldn’t have to pay.
I’ll ask again, Kman: Could the government force me to buy a car since I don’t own one? Could they specify which kind of car I could buy, and what options it must have?
Scott Jacobs (218307) — 2/8/2011 @ 8:36 amNow kmart is lipping back to Commerce Clause freerider BS. Kmart, like Tribe, piles assu$ption on top of assumption on top of assumption prior to arriving at the conclusion that npot buying insurance is an economic activity that impacts all. They assume you will go to the ER, instaed of a MedCheck or your family doctor. They assume that you cannot pay. They assume that the ability to regulate an indsutry is the same as the ability to force consumers to purchase that industry’s product. They assume the rest of the world is an idiot.
JD (d48c3b) — 2/8/2011 @ 8:38 amWhat about people who pay for their health care without insurance? It really isn’t as bad as some make it out to be.
I wish I could get a super high deductible policy for catastrophes, but our regulations ban this insurance, and the reason is that you can’t perform a wealth transfer with it.
I want minimal insurance and to simply pay the couple hundred a year for health care that I need. I don’t want to be thrown into a pool that bans preconditions and insists all insurance cover x,y,z, because that just means I’m paying for someone else’s care. I just want the free market. It works.
anyhow, it’s not like everyone lacking the democrat’s version of good insurance, or any insurance, never get health care, or that they are all moochers in the emergency room (and that problem is unaffected by Obamacare).
It’s almost as though the democrats want to make to where it’s not possible to disconnect my health care from insurance, because then they can control my insurance and my life. Some people value this disconnection.
At the end of the day, we’re talking about freedom. No one calling themself “democrat” should support something most Americans don’t want. No one calling themself liberal should want to rob us of choices about our health decisions.
Dustin (b54cdc) — 2/8/2011 @ 8:40 amRenting a car or taking a train/plane is more akin to paying for a doctor visit in cash – I own none of those forms of transportation, and can not make demands upon them (I can’t decide when it leaves, where else they go, how fast they travel, whether or not I can smoke during the trip, etc).
Is my decision to not buy a care a form of interstate commerce?
Scott Jacobs (218307) — 2/8/2011 @ 8:42 amKman
You made the comparison in your #35. You got all snarky and accused others of being hypocritical. Yet when asked – repeatedly – if you agree with the standard you are holding others to, now you’re not interested anymore?
Blue Ox (ff919a) — 2/8/2011 @ 8:42 amNo it isn’t.
I’ve had several rounds of dental surgery since I turned 21, and have paid cash for every single one.
I have paid cash for every eye exam and paid of glasses I have ever owned save for my first pair.
How is it that I have managed to do this without insurance, if they are so closely tied?
Note: I paid less for my last tooth extraction by paying cash than insurance would have paid, something like 75 bucks less.
Scott Jacobs (218307) — 2/8/2011 @ 8:45 am“if only because the “product” actually requires massive amounts of purchasers in order to “work”.”
Kman – The insurance industry is not “unique” in requiring massive numbers of customers to work. Try again.
daleyrocks (479a30) — 2/8/2011 @ 8:45 amPardon me, but nowhere do I see the words “must purchase” in Congress’ mandate. A member of the militia might provide himself with a weapon by:
There might be other reasons — this list is not exhaustive. The point is that Congress did not specify that militia members must purchase a weapon.
navyvet (db5856) — 2/8/2011 @ 8:45 amWell said, Scott. Taxes aren’t penalties, and this is a major facet of the legal issues surrounding Obamacare (the dems tried to get away with being on both sides of this, to skirt the law). It is really hard to believe that someone with a legal education can simply dismiss a legal argument against a kind of penalties because of a tax system’s mere existence. It really is completely ignorant.
In fact, your tax for inactivity in this country is nothing. If you don’t buy property, or goods, or earn income, you don’t pay taxes. That someone would be taxed for not having health insurance is simply crazy. Thank God the floor is falling out from under this entitlement concept so quickly. If the masses became dependent on democrats for such things as medical care, they would exploit them for the rest of their lives.
Dustin (b54cdc) — 2/8/2011 @ 8:47 amJim is incapable of understanding the difference between State Farm and Ford, or Wellpoint and Dr Oz.
Bored Lawyer – silly question. These are the same people that think it is appropriate for the EPA to regulate what you exhale.
JD (306f5d) — 2/8/2011 @ 8:47 amThey could be gifted one by someone who is over 45, and thus out of the militia…
Scott Jacobs (218307) — 2/8/2011 @ 8:47 am“Scott, health care is inexorably connected with health care insurance. There’s no way to effectively disconnect the two.”
You obviously don’t know what you are talking about when you make a statement like this. I gave examples above earlier. You merely see Obama’s plan or single-payer as the only path to reforming the delivery of health care in this country. Having tunnel vision is not a legal argument.
daleyrocks (479a30) — 2/8/2011 @ 8:51 amWhy is so much attention being paid to Amar when Charles Fried already explained this is constitutional?
“In other words, McCulloch v. Maryland only stands for the proposition that a state cannot tax a Federal bank. ”
Haha. Good one.
savoirfaire (43cb95) — 2/8/2011 @ 9:09 amnotice Kman doesn’t even acknowledge that i proved him a liar, twice.
why debate a liar? seriously, why? doesn’t all of this depend on a basic honesty on the other side?
he’s already been refuted on every point. and soon i will fisk lawrence tribe and show how much his new hero is wrong, too. whatever.
Aaron Worthing (e7d72e) — 2/8/2011 @ 9:13 amA.W. – Kman finds lying sexually stimulating would be my guess.
daleyrocks (479a30) — 2/8/2011 @ 9:16 amLooking forward to the fisking. Better make it snappy, though.
I expect Chief News Officer Olbermann to be stiff competition now that he is free to pursue real journalism for Al Gore.
Dustin (b54cdc) — 2/8/2011 @ 9:18 amAW, why don’t you just dump the idiot into Moderation, and only approve comments that are not inherently dishonest…
Which would mean that you’d never approve anything. 🙂
Scott Jacobs (218307) — 2/8/2011 @ 9:22 amIn 1973 the Supreme Court struck down state laws as unconstitutional because they violated the (non-existent) right of privacy of someone seeking a singular form of medical care.
Now we’re supposed to believe that government regulation of every aspect of my health care decisions are not intrusive of my privacy.
Am I wrong here?
NED
NewEnglandDevil (820235) — 2/8/2011 @ 9:24 amWhile Kman is incredibly dishonest, he isn’t posting people’s addresses or otherwise really reaching out and screwing with people IRL. While he is pretty annoying, it’s not so bad that any ridiculous idea can be expressed here, so long as it’s not actually harming other participants.
That’s the rub. Kman, bug that he is, is a moral titan compared to imdw or Yelverton.
Dustin (b54cdc) — 2/8/2011 @ 9:33 amScott:
I can’t answer that hypothetical without a context. Why would the government force you to do such a thing? To what end?
If (1) that “end” is constitutionally permissible; and (2) the car-buying requirement is necessary and appropriate to that “end”, then the answer is “yes”.
But I can’t envision a piece of legislation that fits those requirements.
Kman (d30fc3) — 2/8/2011 @ 9:33 amBecause
(1) You didn’t; and
Kman (d30fc3) — 2/8/2011 @ 9:35 am(2) Your ad hominem attacks (in lieu of substantive arguments) bore me
Basically, Kman’s stating that the “ends” justify the “means”.
QED.
SPQR (26be8b) — 2/8/2011 @ 9:36 amI love how Kman simply ignores when something he said was proven dishonest (or simply wrong, though it’s often clear he was being dishonest).
He just says you didn’t and keeps spamming nonsense. He’s been doing it for almost a decade, and he has absolutely no sense of how absurd this is.
Dustin (b54cdc) — 2/8/2011 @ 9:41 am“(2) Your ad hominem attacks (in lieu of substantive arguments) bore me”
Kman – You can always leave!
daleyrocks (479a30) — 2/8/2011 @ 9:42 amThey have bailed out GM. They wish to increase sales for GM to speed up recovery of money given.
They used taxpayer money for the bailout.
Can they force me to buy a car?
Scott Jacobs (218307) — 2/8/2011 @ 9:44 amAnd to add to Scott’s hypo just a little, GM is still failing to make money because too many Americans are buying good cars instead of GM cars. It’s costing everyone tax money, democrats say, when we buy a Honda instead of a GM, because GM needs to pay back her loans.
It’s a company that needs lots of people to chip in to pay back the bailout loans and union pensions.
So they propose a ‘tax’ on people who don’t buy a GM car, even if they didn’t want a car at all.
Dustin (b54cdc) — 2/8/2011 @ 9:48 amkman
of course you don’t admit it. But we all know the score.
scott
if i had my way i would ban him for being stalky. but its not my call.
Aaron Worthing (e7d72e) — 2/8/2011 @ 9:48 amUnder that scenario, the answer is “no”. The “solution” doesn’t seem reasonably adapted to the goal. As you point out, the taxpayers already bailed out GM. Now, in order to recover that money, the government is forcing those same taxpayers to buy cars?
Doesn’t make sense.
Kman (d30fc3) — 2/8/2011 @ 9:50 amThe amount you paid is affected by the fact that most people are covered by health insurance. You were piggybacking on the health insurance scheme.
Do they not teach macroeconomics anymore in colleges?
Kman (d30fc3) — 2/8/2011 @ 9:55 amNow Kman has gone beyond stupidity, dissembling, disingenuousness, into an outright deliberate knowing lie. Nothing in Wickard would permit Congress to require anyone to buy wheat, or to grow it. Were either the growers or the consumers to go on strike, thus sending the price respectively up to the sky or down a hole, there is nothing Congress could have done about it. The only thing Wickard held Congress could do was prohibit people from growing wheat, or more than a certain amount of it.
Even that decision was dishonest, since the judges who made it didn’t themselves believe the constitution really meant what they said it did; therefore they were ultra vires and their decision is legally void. Nevertheless, it is what it is, and not more than that. It left Mr Filburn absolutely free to do without wheat, or to live within his quota, and did not require him to do anything.
Milhouse (ea66e3) — 2/8/2011 @ 9:56 am“Individuals who don’t purchase insurance they can afford have made a choice to take a free ride on the health care system. They know that if they need emergency-room care that they can’t pay for, the public will pick up the tab. This conscious choice carries serious economic consequences for the national health care market, which makes it a proper subject for federal regulation..”
– Tribe (via Kman)
I would respond to Mr. Tribe that the wording of that bolded sentence implies at least one other alternative to this health insurance bill – namely, ceasing to pay the emergency room tab for the uninsured. Scott has given you another alternative – paying for health insurance out of pocket. I don’t support either of those solutions (I’m a single-payer type of guy at this point in my life), but if they’re viable then that kinda sinks the notion of a purchase mandate, doesn’t it? It’s neither the “necessary or proper clause” nor the “sufficient and proper” clause. The sufficiency of a purchase mandate to fulfill the goal of an effective national health insurance system does not make it constitutional, absent clear enumeration. And, as I’ve already argued, the precedential propriety of the law ought to be questioned as well.
Leviticus (b987b0) — 2/8/2011 @ 9:57 am“Under that scenario, the answer is “no”. The “solution” doesn’t seem reasonably adapted to the goal. As you point out, the taxpayers already bailed out GM. Now, in order to recover that money, the government is forcing those same taxpayers to buy cars?”
– Kman
Why not? The government is out a chunk of change, right? And they are empowered/obligated to regulate interstate commerce, right? And money is necessary to regulate interstate commerce, right? And purchase mandates are a way of raising money, right?
But that still sounds like an intolerable expansion of government power, right?
Leviticus (b987b0) — 2/8/2011 @ 10:02 amLeviticus, you hit on the fatal flaw of the argument indeed. How can the government’s choice to compel treatment by ER’s thereby create a “crisis” that creates a constitutional power to compel people to buy health insurance?
The argument, and Kman’s more primitive version of the ends justify the means, simply reduce the Constitution to an nonentity.
SPQR (26be8b) — 2/8/2011 @ 10:04 amHow does the government do that? How do it get health care facilities NOT to pass on the costs of freeloaders to the greater public who can (and do) pay? I don’t think that is possible.
The alternative to the individual mandate is to have everyone pay for health insurance out of pocket?
Maybe I’m missing what you’re saying…. I don’t really see that as being an “alternative”.
Kman (d30fc3) — 2/8/2011 @ 10:11 am“The alternative to the individual mandate is to have everyone pay for health insurance out of pocket?
Maybe I’m missing what you’re saying…. I don’t really see that as being an “alternative”.”
– Kman
No, the alternative to an insurance system is to have everyone pay for health care out of pocket.
Leviticus (b987b0) — 2/8/2011 @ 10:12 amThe point is, dude, that you don’t want to recognize that there are alternatives to this purchase mandate, even though there absolutely are, because that would sink the whole “necessary and proper” line of argument. That’s an annoying way to debate.
Leviticus (b987b0) — 2/8/2011 @ 10:14 amHoly f**k you’re stupid.
Do you know why I’m charged less than someone with insurance?
Because I require less work for them to get paid. They don’t have to send forms and letters to an insurance company. They don’t have to do it again, and maybe even again. They don’t have to wait days for payment. They get paid right then, make more money overall, and I pay less.
That isn’t “piggybacking”, you idiot. That is actually a complete avoidance of the system. I don’t pay less because someone else has insurance. I pay less because I don’t make them deal with an insurance company.
Do they not teach f**king logic in college anymore?
Scott Jacobs (218307) — 2/8/2011 @ 10:16 am“How does the government do that? How do it get health care facilities NOT to pass on the costs of freeloaders to the greater public who can (and do) pay? I don’t think that is possible.”
– Kman
They do that by ceasing to treat freeloaders. If there are no freeloaders then there are no freeloader costs to pass onto the greater (read: only) public.
Leviticus (b987b0) — 2/8/2011 @ 10:16 amHas it never occurred to you that the cost of health care might actually be lower if no one had insurance? That if most people could not afford insurance, doctors and hospitals would have to lower their fees in order to stay in business?
Some chump (4c6c0c) — 2/8/2011 @ 10:16 amThey do not care about the means. The end is what their goal is.
JD (b98cae) — 2/8/2011 @ 10:17 amNo, it doesn’t.
So how does it make sense that they can force me to buy insurance in order to prevent insurance companies from going bankrupt due to those companies being forced to do something?
The penalty – as admitted by the government – is a way to raise revenue to offset the cost of their reforms.
Please explain how one is ok, but the other is not.
Scott Jacobs (218307) — 2/8/2011 @ 10:18 am“Do they not teach f**king logic in college anymore?”
– Scott Jacobs
You can avoid Reasoning and Critical Thinking by taking Public Speaking – which is actually really funny, now that I think about it. As someone who is taking the only (potentially) required logic class at my university, I can assure you that when they teach it they don’t teach it particularly well. Luckily (at UNM) they have a badass teaching the upper-level Symbolic Logic.
Leviticus (b987b0) — 2/8/2011 @ 10:18 amThanks for the clarification.
The problem is that most people can’t do that, particularly as they age and health care costs skyrocket. A simple hip replacement, for example, costs $35,000. Even well-off people just don’t have that kind of disposable income.
Unless you want to talk about government run socialized medicine as an alternative to health insurance (but I don’t think you do…..)
Kman (d30fc3) — 2/8/2011 @ 10:19 amLeviticus – it appears to suffer from a lack of imagination, as it ceases seeking alternatives once it arrives at the concept of government doing it.
JD (3ad5b9) — 2/8/2011 @ 10:23 amThose companies are being “forced” to provide health care coverage, i.e., to do what they were originally designed to do. Over time, the insurance industry has gotten itself into the cozy position wherein they don’t actually have to provide the services that were paid for. It has been happening with increasing frequency. I’m not sure any other industry gets away with that.
Kman (d30fc3) — 2/8/2011 @ 10:25 amNow kmart is admitting that it is punishment for percieved and/or anecdotal wrongs.
JD (b98cae) — 2/8/2011 @ 10:28 amIt simply flits from point to point, eventually looping back and repeating them. Kmart is performance art.
JD (d48c3b) — 2/8/2011 @ 10:30 amKman: if there are alternatives to a purchase mandate, how can a purchase mandate fulfill the “necessary” provision of the “necessary and proper clause”?
Leviticus (b987b0) — 2/8/2011 @ 10:32 amIt appears that kmart thinks necessary includes anything necessary to fix problem created by other necessary steps. Actually, it does not likely even think that, beyond this issue. Despite his claims otherwise, this is a political issue for him/her/it.
JD (29e1cd) — 2/8/2011 @ 10:35 amI still think it’s unconstitutional for the government to force you to buy a gun, by the way. Just putting that out there again, because that seemed like the most relevant argument made for the propriety of a purchase mandate.
Leviticus (b987b0) — 2/8/2011 @ 10:39 amI don’t think you’ve hit on any viable alternatives. One is impossible to implement, and the other doesn’t regulate the health insurance industry so much as simply obliterate it.
That said, the legal answer to your question is simple: McCollugh v. Maryland specifically rejected the argument that the “necessary and proper” clause means that a legal provision be “absolutely necessary”. Put another way, the word “necessary” in the Necessary and Proper Clause does not refer to the only way of doing something.
Kman (d30fc3) — 2/8/2011 @ 10:41 amkman
> Doesn’t make sense.
it makes as much sense as forcing us to buy health insurance.
and yes, you can end the passing on of costs. you take out the federal law requiring emergency rooms to take everyone whether they pay or not.
if a hospital chooses not to let people die, then insurance companies will start reducing reimbursements to them appropriately. then the hospital can either stop paying for that care, or find another source, such as a charity, to pay. the end.
you really have to collossally ignorant to think it is impossible to stop a federal benefit.
Aaron Worthing (e7d72e) — 2/8/2011 @ 10:42 amKman
> Put another way, the word “necessary” in the Necessary and Proper Clause does not refer to the only way of doing something.
Yes, of course. according to your reading, the FG can lock up everyone of a certain ethnicity if it is merely useful to carrying out the war powers.
and no one has forgotten that you were proven a liar.
Aaron Worthing (e7d72e) — 2/8/2011 @ 10:44 amThen you are arguing that there is absolutely no limit to what Congress can do. Congress can always argue that some part of a law is “necessary” to achieve some goal, even if it isn’t the only way of achieving it.
Under your logic, Scott Jacobs’s hypo about the government forcing citizens to buy GM cars would be completely Constitutional, because such a thing would be necessary to GM paying back the bailout money.
Some chump (4c6c0c) — 2/8/2011 @ 10:47 amAhhh. I see. So near-monopolies (more like cartels, really) that are created due to Federal stupidity (and retained by same), get forced to extend coverage to people they were never – not once – required to cover, and thus the government cane make me spend money. I seeeeee…
Actually, that sounds exactly like GM and Chrysler. They made worse and worse cars and trucks that no one wanted to buy at prices no one wished to meet. This resulted in them losing massive piles of money and then, instead of being forced to exit the market as any other company would have to do, the government bailed them out. They continue to make crap vehicles, and they continue to get federal (read: my) money.
So companies that have been all but become majority-owned by the government continue to fail.
How is forcing me to buy insurance different from making me buy a car? It could be argued that making me but a Chevy would be even better than making me buy insurance, because it is govt run – the govt directly benefits from my purchase, as opposed to indirectly when I buy health insurance.
Scott Jacobs (218307) — 2/8/2011 @ 10:50 amWell, yes, they can ARGUE it. Courts don’t have to “buy” it.
Congress can preserve our natural wildlife, but if it were to try to pass a law requiring euthanasia of the elderly so that the dead could serve as food for endangered animals, I for one would argue that such a legal provision is not “reasonably adapted” to the attainment of legitimate goals.
Kman (d30fc3) — 2/8/2011 @ 10:52 amWhy not? Would it not be a “necessary” means of assisting endangered species?
Scott Jacobs (218307) — 2/8/2011 @ 10:54 amIt’s like arguing with Vizzini, from the Princess
narciso (e888ae) — 2/8/2011 @ 10:58 amBride, there’s no point in the dfeal.
The alternatives to a purchase mandate are viable, Kman, even if you don’t want to admit it. For instance, plenty of countries have functioning single-payer systems which ensure coverage to all members of society without any insurance whatsoever. So, if there are viable alternatives, how can one say that a purchase mandate is a necessary means of pursuing the ultimate goal in all of this: the provision of affordable healthcare to all members of society? Or is the “necessary and proper” clause really reduced to the “proper clause”, such that Congress is justified in doing anything within their power, even if it’s completely unnecessary?
Leviticus (b987b0) — 2/8/2011 @ 11:00 amWell, yes, they can ARGUE it. Courts don’t have to “buy” it.
Nonsense, Kman, it is your claim that they have to buy it.
SPQR (26be8b) — 2/8/2011 @ 11:04 amRight. Our claim is that Congress can claim a power to impose a purchase mandate, and that the Courts can strike it down as unconstitutional (i.e not buy it). I thought you were arguing re: McCulloch v. Maryland that issues of pursuit of properly grounded (i.e. constitutional) goals were firmly within the Congressional purview, and beyond “judicial cognizance.”
Leviticus (b987b0) — 2/8/2011 @ 11:07 am“Right” re: SPQR’s comment, “you” re: Kman.
Leviticus (b987b0) — 2/8/2011 @ 11:08 amWell, okay. I’ll concede that. I mean, if we gotta, then we gotta.
Well, pretty much, but not QUITE as bad as all that. A legal provision invoked by the N&P clause has to be “reasonably adapted” to the aims of the overall legislation.
It’s that fuzzy word “reasonably” where all the contention lies.
Kman (d30fc3) — 2/8/2011 @ 11:09 amMan… this is frustrating.
Leviticus (b987b0) — 2/8/2011 @ 11:09 am113.Scott, health care is inexorably connected with health care insurance. There’s no way to effectively disconnect the two.
Comment by Jim
There were doctors, patients, and nurses prior to health insurance. There is no inherent reason why health care involves health insurance.
To the degree that the current system includes massive cost-shifting, it doesn’t have to. A hospital can be told to charge one fee for an uncomplicated appendectomy no matter what kind of insurance or not a person has. The person without insurance is obligated to pay, if cannot and no other specific mechanism is available, the person needs to declare bankruptcy. No one is tagging along the coat-tails of anybody.
From what I understand, health care “businesses” (doctors, hospitals, pharmacies, pharmaceutical companies, etc.) are not allowed to agree on prices due to anti-trust violations; so that and other implications of a free market encourages cost-shifting, making some payors essentially subsidize others, including private insurance subsidizing Medicaid and Medicare, as many, if not most, doctors can afford to see a substantial number of Medicaid (especially) and Medicare patients because they can charge more to other insurance companies and out of pocket payors, and to some degree the programs (especially Medicaid, as much as I know) was intended to be that way.
I do not have the legal, business, or financial knowledge to suggest solutions. All I know is, if a doctor wants to charge a patient less or nothing because he/she knows they are hard pressed to pay it, they should be able to. If a patient is willing to pay a given fee for a given service, they should be able to (as long as the service is not fraudulant). And everybody should understand who is subsidizing who, if it involves government payment.
People find it easy to take advantage of some organization, or “them”, they find it harder to do so to the person talking to them (but unfortunately not hard enough).
MD in Philly (3d3f72) — 2/8/2011 @ 11:11 amSo, “reasonably adapted” qualifies “proper”, and “necessary” is dispensed with completely? I have a hard time believing that, or believing that the clause is interpreted in that manner, regardless of a potential precedent for such an interpretation… what section/text in McCulloch v. Maryland produced such a broadening of Congressional power? Eat your heart out, Checks and Balances. I guess the notion that each branch would resist the encroachments of the others was unfounded, if the courts were willing to give away such a vast chunk of their power at the drop of a hat…
Leviticus (b987b0) — 2/8/2011 @ 11:12 amYes, but my point is that to do that, they would have to ignore their own precedent, i.e., the N&P jurisprudence that they have set from McColloch right up through last year’s Raich case.
Can the Court do that? Sure. They can do anything they want. Can they do that in good conscience? I say no.
But your mileage may vary.
Kman (d30fc3) — 2/8/2011 @ 11:14 amThis is the section of McCulloch v Maryland that gets quoted most often on the interpretation of N&P Clause:
In the current situation, the “end” is health care (insurance) reform, and the “means” at issue is the individual mandate.
Kman (d30fc3) — 2/8/2011 @ 11:19 amkman
except once again, it is not the means of health care reform. it is the mitigation of other reforms.
and you know it. i beat your @$$ last time we talked about this.
Aaron Worthing (e7d72e) — 2/8/2011 @ 11:21 amDo they not teach f**king logic in college anymore
Wasn’t “logic” something a pointy-eared guy talked about on some old TV show, “The Man from Get Smart Gets Trekkin’ to Catch a Fugitive”, or something like that???**
Can anyone under 35 identify all of the references in that title? At least 5 TV shows and 1 band.
MD in Philly (3d3f72) — 2/8/2011 @ 11:24 amNow Kman is reading a “conscience” requirement into the Necessary and Proper clause? How droll.
SPQR (26be8b) — 2/8/2011 @ 11:25 amWhich was the band?
narciso (e888ae) — 2/8/2011 @ 11:28 am1) Man From U.N.C.L.E.
2) Get Smart
3) Star Trek
4) ?? Logan’s Run??
5) The Fugitive
Dunno the band, but I’m usually pretty bad with band names anyways.
I’m 32, for the record.
Scott Jacobs (218307) — 2/8/2011 @ 11:31 amnarciso- Hint: a tangential reference is found in “Trekkin'”.
MD in Philly (3d3f72) — 2/8/2011 @ 11:32 amTruckin’? The Dead?
Kman (d30fc3) — 2/8/2011 @ 11:34 ami will note, btw, i have a new thread on tribe’s crappy little op-ed.
Aaron Worthing (e7d72e) — 2/8/2011 @ 11:34 amLeviticus – in kmart’s world, on this issue, necessary revolves around it being necessary, because the government admits that without the mandate, the entire contraption of BarckyCare would collapse. It glosses over all sorts of things, like the quote from M v MD where the Court notes that the means have to conform to the letter AND the spirit of the Constitution. Given the nature of that document’ to argue that forcing an individual to purchase a product from a private company would conform to either is laughable.
JD (973de1) — 2/8/2011 @ 11:35 amVery good, Mr. Jacobs, but #4 is wrong.
MD in Philly (3d3f72) — 2/8/2011 @ 11:35 amThe Firm?
Dustin (b54cdc) — 2/8/2011 @ 11:35 amTo Catch a Thief (Robert Wagner as Alexander Mundy)
Some chump (4c6c0c) — 2/8/2011 @ 11:38 amYeah. I liked it the first time…. when Althouse wrote it.
Kman (d30fc3) — 2/8/2011 @ 11:40 amKman gets Trekkin Truckin by the Grateful Dead, but Kman, you’re on your own for whatever abuse you get for knowing that, as I can’t say that I’ve equated Dead Heads with intelligence.
TV #4 will be pretty hard, as I realized I made a mistake in the title of the show I was thinking about, so, if you get it, yuou will be known for having thought processes parallel to mine. Ya’ll have to decide if that is better or worse than being a Dead Head.
MD in Philly (3d3f72) — 2/8/2011 @ 11:40 amKman
> Yeah. I liked it the first time…. when Althouse wrote it.
like as if you read either post.
Aaron Worthing (e7d72e) — 2/8/2011 @ 11:42 amkman
hell, you didn’t even read larry tribe’s piece, incorrectly stating he was not making an argument that he did. or just lying, you POC.
Aaron Worthing (e7d72e) — 2/8/2011 @ 11:43 amOn this, we can agree.
Kman (d30fc3) — 2/8/2011 @ 11:44 amOops, the Robert Wagner show was It Takes a Thief. To Catch a Thief was a Cary Grant movie. My memory is fuzzy in my old age.
Some chump (4c6c0c) — 2/8/2011 @ 11:47 amWell, Some chump posted before he had a chance to see my disclaimer. Actually “To Catch a Thief” was a movie, but I was thinking about the TV show with Robert Wagner which was actually called “It Takes a Thief”. I saw a new series on one of those Cable channels with the same idea, a virtually unstoppable thief/burglar/swindler is let out of prison on the condition he teams up with the FBI. etc. can’t remember the name of the new one.
MD in Philly (3d3f72) — 2/8/2011 @ 11:47 amMD, you’re thinking of “White Collar”.
A pretty entertaining show, actually.
“Breakout Kings” is sort of in the same vein, but I think it will be more like TNT’s “Leverage”.
Scott Jacobs (218307) — 2/8/2011 @ 12:00 pmNothing in the U.S. Constitution forbids states from doing the same thing.
How many states offer single-payer?
Michael Ejercito (64388b) — 2/8/2011 @ 12:02 pmYes, I believe that is it, Scott.
It probably would not make a very good TV series, but maybe a movie, and in real life it probably works quite well- the idea of the super-hacker who is gainfully and legally employed trying to hack into computer systems so the weaknesses can be identified and fixed.
MD in Philly (3d3f72) — 2/8/2011 @ 12:50 pmI almost wanna say they did that show… Can’t recall the name. I’ll have to think on it for a while…
Scott Jacobs (218307) — 2/8/2011 @ 12:53 pm“NetForce“
Scott Jacobs (218307) — 2/8/2011 @ 1:00 pm“NetForce“
Comment by Scott Jacobs — 2/8/2011 @ 1:00 pm
Tom Clancy’s? Hmm – will have to check that out. Sneakers with Robt Redford did IMO a pretty entertaining job of the concept too.
*Redford picks up check after fake-withdrawing tens of millions from a bank after hack-testing their system*
Pay clerk: “so people hire you[r team] to break into their systems…so no one can break into their systems?”
Robt Redford: “It’s a living.”
Pay clerk, apologetically handing over his fee: “Not a very good one.”
no one you know (325a59) — 2/8/2011 @ 1:28 pmI know I’m from Kansas and all, but excuse me I just don’t trust experts on the constitution named Akhil Amar.
kansas (7b4374) — 2/8/2011 @ 1:54 pmkansas
what does his name have to do with anything?
i judge him as a complete t-rd based on the content of his character.
Aaron Worthing (e7d72e) — 2/8/2011 @ 1:57 pmWe can now understand what happened to Aaron Worthing.
Cayman (2d5569) — 2/8/2011 @ 2:31 pmhttp://news.yahoo.com/s/afp/20110208/lf_afp/healthfoodlifestylechildren
Hopefully everybody noticed that way back in comment #119 kman made the “it’s a tax, not a fine” argument. Pathetic, as usual.
Icy Texan (1aa130) — 2/8/2011 @ 2:47 pmIcy Texan, its also where he deliberately misrepresents what is meant by “inactivity” as well, showing the lack of integrity his comments have.
SPQR (26be8b) — 2/8/2011 @ 2:55 pmYep. All he’s doing is acting out his ingrained “defend the Dems at any cost” response mechanism.
Icy Texan (1aa130) — 2/8/2011 @ 7:54 pmI understand that next week Congress will vote to make everybody buy a copy of “Battlefield Earth.”
Neo (03e5c2) — 2/8/2011 @ 8:10 pmJohn Travolta and an undead L. Ron Hubbard need the cash.
Oh good, I’ll be exempted. I bought that book back in high school…
Scott Jacobs (d027b8) — 2/8/2011 @ 10:31 pmAm I the only person in the world who actually liked that book?
Milhouse (ea66e3) — 2/8/2011 @ 11:10 pmI liked it at first.
The second time I knew more about dianetics, and saw all the parallels, so I really, really disliked it.
Scott Jacobs (d027b8) — 2/8/2011 @ 11:24 pmthe scary thought is… the movie allegedly only represented half of the book. so… a sequel is inevitable.
Aaron Worthing (e7d72e) — 2/9/2011 @ 5:43 amI knew about dianetics when I read it, but then I knew about Christianity when I read Lewis’s fiction, and about Mormonism when I read Card’s Alvin series, and about Milton when I read Philip Pullman. That didn’t stop me enjoying them.
Milhouse (ea66e3) — 2/9/2011 @ 6:07 amWell, I think there’s a difference between CS Lewis’s sincere Christianity and Hubbard’s ‘I’ll make some money with this exploitation of the mentally handicapped’ Dianetics BS. Sure, all religions have their miseries, but Scientology is not really a religion.
But Milhouse is right. If we leave Scientology out of it, some of Hubbard’s fiction is worth reading because he’s a good writer. He’s not the first person who writes a good book but lives a bad life.
I think the religion is only a small part of the problem. Battlefield Earth is a good book that was turned into one of the worst movies of all time. Starship Troopers is an even worse offense, being a brilliant book turned into an average, boring, generic movie.
Dustin (b54cdc) — 2/9/2011 @ 6:18 amDustin
Man, they have those scientologists at the mall, and I am always messing with them. I go: “Lord Xemu is coming to get you!”
If you know what they believe that is mean and hilarious.
I will quibble with your claim that it is not a religion, though. First, it is certainly a religion in the sense that the people who believe in it are believing in divine power. If you don’t know the story central to their faith, let me give you the bottom line. They believe that all our diseases, learning disabilities and neurosis are the result of tortured alien souls that have attached to our bodies. So its religion.
Now, I think you are really saying that because L. Ron Hubbard was full of it, that this doesn’t qualify. And I agree that Hubbard was full of crud. But, well, I think the same thing about the founders of a lot of religions. Like in my mind Buddha had to have been either crazy or full of it. Same with Mohammed. And the Greek mythology was created mainly by people telling tall tales around the campfire much as Americans did when talking about Paul Bunion. And surely those who are Buddhists would say Jesus was crazy or full of it. And indeed, Scientologists believe that all religions but theirs were the product of the brainwashing of these alien souls. But each faith has had followers who sincerely followed.
So if Hubbard was full of it, and let’s even say that most of the leadership of his church is full of it, too, that doesn’t change the reality that for his flock this is what they sincerely believe. So it can be said that Hubbard didn’t belong to the religion of scientology because he was full of it, but his sincere followers do.
Of course you do realize that by saying what we have, we are almost certainly going to be sued.
Aaron Worthing (e7d72e) — 2/9/2011 @ 7:13 amGranted, some of the OT-8s (or whatever they call it) actually believe this. They are engaged in some kind of religion.
But the organization as a whole is not about that. It’s not even about telling the vast majority of their customers that information, ever. It’s about finding paranoid people with mental problems or addictions or whatnot, and programing them to get money for the organization.
It’s organized crime with an element of supernatural fiction in some of the brainwashing stages. In fact, one of the brainwashing stages is to inform the mark that if he is told too much of this information and he’s not ‘clear’ enough, it will kill him. This is meant to make it harder for family and friends to expose the con.
I cannot walk into a ‘church’ of Scientology today and walk out having been told these central religious claims you mentioned. You won’t find a specific mention of them on their ‘church’ websites.
Sure, we can be very strict about the definition of a religion and say that completely insincere business that convince some marks of alien souls causing them to only think they need their prescribed medications is, technically, religion. But I don’t think it is. In fact, I think the most interesting thing about Scientology is how they managed to con tax exemption.
Dustin (b54cdc) — 2/9/2011 @ 7:27 amEh… this is a very thoughtful way to parse it out. So the Church of Scientology doesn’t belong to the religion they are selling. Interestingly enough, Aaron, their most harsh lawsuit strategy is against these very people (people who left the organization to preach the thetan issue for free, Stan Marsh style).
On copyright claims, of course.
Dustin (b54cdc) — 2/9/2011 @ 7:34 amI went to a Scientology open house once. It was freakin hysterical. I told them I was a free-range thetan, allergic to engrams, and would like to meet Xenu. They were not amused.
JD (8c753a) — 2/9/2011 @ 7:36 amdustin
well, certainly if you quote a holy book of theirs, in whole, there might be a copyright issue.
But if you just repeat the major points, its not. i mean i could tell you the entire plot of any fictional (or non-fiction) book and that is not a copyright violation. its schmucky, but not a violation.
and even if you quote extensively from it, the content of their faith is a matter of public concern so fair use applies. someone needs to stand up to them and get the needed precedents to defeat this silliness.
did south park ever get sued, btw?
Aaron Worthing (e7d72e) — 2/9/2011 @ 7:44 amI’m pretty sure they never sued over the South Park episode, but then, that’s the point.
They can’t sue millionaires away unless they are actually right on the legal merits. And you’re right, it’s basically a matter of people standing up to Scientology, which I think largely is happening lately, thanks to the internet.
Dustin (b54cdc) — 2/9/2011 @ 7:50 amDustin
By the way, here’s a link to alleged court documents in the copyright case you were talking about.
http://www.lermanet.com/cos/4oct96.html
My favorite line:
> Church doctrine teaches that improper disclosure of the OT Documents [which describe their faith], both to non-Scientologists and even to church members if done prematurely prevents achievement of the desired effect.
Mmm, yeah, translation: no one who hasn’t been indoctrinated by us for years is going to believe this sh-t.
Aaron Worthing (e7d72e) — 2/9/2011 @ 7:56 amI totally would be willing to try and BS my way in.
Might take years, but I think it would be worth it.
Scott Jacobs (d027b8) — 2/9/2011 @ 8:17 amScott, that would be a great reality show, aside from the fact it costs quite a bit of money.
Dustin (b54cdc) — 2/9/2011 @ 8:41 amI don’t know how Aaron gets all these interesting links.
I guess he’s better at the rhymes with schmoogle than I am.
Dustin (b54cdc) — 2/9/2011 @ 8:42 amMy point was merely that to enjoy fiction you have to temporarily suspend your disbelief in its premises, and look at things from its worldview. “Suppose this were true, what would happen?”. A story must be plausible given its premises, not given the world as it really is.
With science fiction this is explicit; the world it’s set in usually doesn’t even pretend to be our own. With much mainstream lit it’s easy to forget this rule, because so much of it purports to be set in our own world, or in a world identical with our own, so we think we already know it, and test the story’s plausibility by that standard. But this can be a pitfall, either because the author’s view of our world may be radically different from ours, or because he’s really writing to some literary convention which is essentially a different world. Thus the Victorian three-volume novel makes sense; to read it one must place oneself in an alternative universe, and the reason this isn’t blindingly apparent is because we’re tempted to suppose that that universe is what the world really was like 150 years ago. Ditto for the novel of chivalry, set in a world that many erroneously suppose to have existed, but which was only ever a literary convention.
So the fact that dianetics is bull doesn’t itself make Battlefield Earth bad fiction. I happened to enjoy it, though I seem to be in a very small minority in that way. (And that doesn’t mean I enjoy all of Hubbard’s work; on the strength of BE I tried reading the posthumous “dekalogy”, and gave up half way through the first book.) As for the movie, I never saw it and have no intention of seeing it.
Milhouse (ea66e3) — 2/9/2011 @ 12:40 pmmilhouse
i think association with bad ideology can ruin a work, though. i mean if hitler wrote a novel it would have to be amazingly beautiful to overcome the fact it was written by hitler, right?
not that hubbard is hitler. he’s really more like your average sleazy televangelist. but i could imagine how creepy associations keep coming in, distracting you from just enjoying the dang thing.
Which i say never having read his books and having no desire to, either.
Aaron Worthing (e7d72e) — 2/9/2011 @ 12:55 pmI disagree. More than that, I think that in order to read it one would have to suspend ones view of the real world and suppose that the world were as the author believed it to be. That is, one would have to adopt, for as long as it takes to read the novel, the worldview of Mein Kampf. I mean, suppose Hitler were right; suppose the Jew really were a separate species of pod people, engaged in a war of extermination against real humans. Our world isn’t like that, but could there not be such a world? There’s lots of science fiction with similar premises. The reader would have to put himself in such a world, and read the novel from that perspective, and only on that basis could he judge whether it worked or not. If it was implausible even within its own universe, then it would be a bad book; if, given its premises, it worked, was enjoyable, and seemed plausible, then it would be a frighteningly good book.
Milhouse (ea66e3) — 2/9/2011 @ 1:25 pmPS: The best dystopian novels are those you don’t realise are dystopian until you’ve finished them and can look back on them from the viewpoint of the real world. The very best are those you’re still not sure were meant to be dystopian.
Milhouse (ea66e3) — 2/9/2011 @ 1:27 pmWhy did the german conservatives support the nazis?
Why are these people still wringing their hands over slavery?
DohBiden (15aa57) — 5/27/2011 @ 9:56 pm