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Handicapping Health Care

By: Steven Willis (Diary)  |  March 26th, 2012 at 12:30 PM  | 

RESIZE: AAA

[from the diaries]

Supreme Court oral arguments on the Affordable Care Act begin Monday.  We can expect a decision either in June or October.  I predict June.  What will it be?  I’ll go out on a limb and predict Unconstitutional by 5-4.  My confidence level is under 60%.  I would not be surprised at Unconstitutional, 6-3, but the odds are less than 1%.  Constitutional at 6-3 has odds, in my opinion, at 30%.

The Court faces five main arguments:

  1. The case is premature: either no one has standing or the Anti-injunction Act (AIA) precludes it.
  2. The Mandate violates the Commerce Clause (CC).
  3. The Act violates the 10th Amendment in general or through Medicaid issues.
  4. The Penalty violates the taxing power.
  5. The Penalty enforcement facially denies due process.

The latter two are issues I briefed to the Court.  My brief is here.

Contrary to what most people believe, the government must prevail on all five issues.  See my discussion here.  Opponents must prevail on issue number 1 and at least one other.  My predictions and short analysis follow:

1. Standing/AIA: odds of this being the decision basis: less than 5%.  It would mean we have no decision, at least to the extent the AIA or lack of standing claim applied. Clearly individual plaintiffs can show current injury and thus standing; however, they have a problem with the AIA.  The Court can overcome the AIA in four ways.

  • First, per Bob Jones, the AIA does not bar persons who show irreparable harm and certainty of success.  Although I made this point to one Circuit, and while I believe it should prevail, I also believe it will not.  If it does, it means the opponents have won.
  • Second, the penalty is a penalty and not a tax and thus the AIA is irrelevant.  This is plausible, even though I disagree because I see the penalty as a tax.
  • Third, the AIA bars injunctions, but this is a declaration.  One District Court followed this reasoning and it has some merit.
  • Fourth, States have no AIA problem because States are not persons and the AIA only bars persons; however, they have serious standing issues, at least regarding the Commerce Clause attack.  States have no standing issue regarding the taxing power or 10th Amendment because those issues belong to the States.  Despite the 4th Circuit opinion, I believe the odds of this being the deciding basis to postpone a decision in toto are 1%; hence, I believe we will see a decision on the merits.

2. Commerce Clause: odds of this being the deciding basis: 85%.  Odds unconstitutional: 55%.  This is the most dangerous area.  Striking the Act on CC grounds would be groundbreaking and could foretell overruling Wickard, which would be a good thing.  Upholding the Act on CC grounds, unless it is very narrowly tailored, would be very damaging to federalism.  It would grant unlimited power to the federal government, checked only by the political system.  I have no doubt the Mandate violates the CC: it forces commerce that does not otherwise exist.  Potential commerce is not commerce.  Then again, potential commerce clearly has a substantial impact on interstate commerce; hence, the government’s position is not without merit, assuming one agrees with the Court’s precedents and agrees they should be expanded.

3. 10th Amendment: odds of this being the reason to strike the Act: 1%.  I support the argument; however, I suspect it will have no more than 4 votes.  Admittedly, it is not my area of expertise.  If the Court focuses on this in the opinion, it means the opponents win; however, I doubt we will see much of this.

4. Taxing Power: odds of this being the reason to strike the Act: 2%.  If this forms the opinion basis, odds of opponents’ success are 98% and odds of a 9-0 opinion striking the Penalty are 75% or more.  This is the argument I’ve written about extensively, (here, here, and here) and which formed the bulk of my brief (here) to the Court, as well as to three Circuits.  One small group briefed it on the other side and their argument was unpersuasive.

The Court is not going to find the penalty to be a duty or impost.  Odds of finding it a here-to-fore undiscovered type of tax are less than one in a billion.  Odds of finding it to be a uniform excise are very slim: perhaps one in ten thousand.  Excises must apply to actions or transactions or uses of property or exercises of privileges.  This is not an excise.  Viewed with the Mandate, it is not uniform because together they are a function of state and regional markets.  Thus, if the penalty and Mandate together are an excise (and they do, in fact, appear in the Excise subtitle of the Internal Revenue Code), they are not uniform, as required by the Constitution.

Odds of the Court upholding the penalty as a 16th Amendment income tax are also slim – much less than one in a hundred.  The Court would be subject to ridicule with such a decision, despite what a few academics claim.  I predict it will not happen.  An increased tax on one’s income because he lacks insurance is no more an income tax than an increased tax on one’s income because he owns land.  The latter would undeniably be a Direct Tax and the former is a Capitation/Direct Tax.  The Court is very unlikely to rule otherwise.

That leaves direct taxes.  The penalty/tax is not apportioned and no one claims it to be.  Odds of the Court finding the penalty to be a direct tax but also that the apportionment requirement is no longer binding are close to zero, again despite what many (if not most academics) argue.  They claim the 14th Amendment effectively repealed the apportionment requirement.  I answer that here. The argument is absurd and Supreme Court justices rarely want to make absurd claims on tax issues, which they tend not to like to rule on.  Also, many academics claim apportionment applies only when it is possible.  Again, the argument is absurd and rests on out-of-context quotations from an 18th Century minority opinion.  Sanctions against those who make such a frivolous argument are more likely than the Court agreeing with the argument.  Thus, that argument will not prevail.

Hence, I see a 1.5 to 2% chance of the Court agreeing with me and striking the tax/penalty as an un-apportioned direct tax.  If it does so, the Mandate becomes the suggestion and necessarily fails.  Not great odds; however, also not unthinkable.  I’m not a gambler; however, with those odds, I’d be buying lots of lottery tickets.

5. Due Process:  odds of this being the reason to strike the Act: less than 1%.  Ultimate chance of success for this argument: 75%.  However, I suspect the Court will determine the argument should be deferred to an as applied rather than facial challenge.  In layman’s terms, it is arguably premature.  I disagree, but I believe that will be the consensus and thus it is unlikely to even reach the opinion, except perhaps in a dissent or concurrence (and a slim chance at that).  Essentially, the “collection” procedures presume the taxpayer “guilty,” allow the government to take his money, and then force him to seek and ultimately to sue for a refund, with the burden of proof being on him.  The Act (together with existing statutes) provides no realistic opportunity for pre-collection judicial review on the merits.  Taxpayers also have virtually no chance for pre-collection judicial review of the sufficiency of administrative review.  That surely violates due process.

If the Court approves the Act, the due process problems create what I see as the most frightening aspect of a very disturbing law.  I make the argument here and in an upcoming American Journal of Law and Medicine symposium (not available for at least another week in final version and in print, not for several weeks).  However, until the due process denial happens to an individual, the Court is unlikely to entertain the argument.  Arguably, the government may never attempt to enforce the Act; or, it may seek enforcement only through a civil suit or a criminal penalty for those who fail to pay the civil penalty. [Yes, despite everything you’ve heard, criminal penalties are possible, if not likely.  See here].  If the government proceeds with civil suits and criminal penalties, it will necessarily grant due process in those matters.  While I believe the civil collection scenario being the sole collection method  is highly unrealistic, it is arguably sufficiently possible so as to defer a decision on due process.

We will know a little more after we hear the questions and arguments this week – especially the questions.  But it will likely be very little more, as judges and Justices often do not tip their hands.  That they ask a question does not indicate they agree with the most likely answer, so be careful reading much into the oral argument and questioning.  Unless, of course, the Justices ask about direct taxes, which would be very telling.

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  • Yil

    Isn’t there an option for states to opt out of the law if they somehow meet the same goals of universal coverage, no pre-existing, etc? I think that’s what Vermont is doing by going with a single payer plan. Wouldn’t that allow Vermont residents to be exempt from the individual mandate? I think it does, and for all I know they may choose the Canadian model of only payroll taxes. If that is the case then doesn’t that change the arguments because states have a way to opt out?

  • http://www.ufcle.com/willis/willis.htm Steven Willis

    Justice Breyer appears very conflicted on the tax issue. At minute 59, he admonished the SG for calling it a tax; however, three or so minutes later, the Justice did the same. Justice Breyer appears, for now, to see the penalty as a tax for constitutional purposes, but not a tax for AIA purposes, which is basically the government’s claim.

    I essentially agree with that assessment, but I think the government will lose the tax argument if that forms the basis of the opinion. Too many people seem to believe the only limitation on the taxing power is “general welfare” and they forget apportionment, uniformity, derived, and others.

    On another matter, Justice Kagan sounds as if she is reading her questions. They tend to be very good questions, but she is reading.

  • johnt

    can be removed, and by who. Makes sense.

    • Dave_A

      The ‘penalty’ of Obamacare is an unapportioned, non-uniform capitation…

      Essentially, it’s the one sort of tax the Founders said ‘Aw HELL NO!’ to (we don’t know what they’d think about income tax, since bureaucracy wasn’t advanced enough back then to collect & enforce one – an issue mooted by the fact that the income tax has it’s very own amendment & thus cannot be unconstitutional) when they wrote the Constitution, due to experience with the Brits & past history elsewhere…

      • JSobieski

        and giving a tax credit instead of a penalty?

        In other words, instead of having a penalty of $X for not having insurnce, simply raise EVERYONE’s taxes by $X and then give a tax credit of $X for everyone with insurance.

        Doesn’t that solve the tax issue?

        And isn’t that an illustration of form over substance?

        • johnjohn23

          They probably could have, but that is harder to sell politically I think.

          • Dave_A

            It’s pretty close to impossible to ‘raise taxes on everyone by the same amount, then give a credit’….

            Which leaves them with their ‘fine-that’s-not-a-tax-but-really-is-a-tax’

          • sulmak

            means that it gets progressively higher as income goes up. Relation to “progressives” is coincidental.

          • Dave_A

            However, because the rates are ‘progressive’ as in progressively higher, it’s much harder to raise taxes on everyone’s income by the same exact amount, in order to craft a ‘constitutional’ equivalent to the O-care fine.

            Simulating a direct tax with either an indirect or income tax is *hard* to the point where it’s not worth Congress trying…

        • http://www.ufcle.com/willis/willis.htm Steven Willis

          I deal with the credit alternative in my article published by the Washington Legal Foundation. <a href="http://ssrn.com/abstract=1848403".Here.

          Credits are not taxes; instead, they are part of the Spending power and thus not subject to apportionment or uniformity or 16th amendment restrictions.

          I agree with johnjohn23, the credit approach would have been a more difficult political approach. Also, I believe Congress goofed in its chosen methods.

          Some have claimed the current system is essentially the same thing as a credit system. My article explains why that is very wrong.

  • tngal

    for him calling them out during that state of the union speech he gave a couple of years ago, and take some of the wind out of his sails on this issue. Remember when he jumped on them for the citizens united ruling? O acts as if he’s allpowerful and can go around the other branches while chastising them if he doesn’t approve of the way they do their jobs.

    They need to scorch him publicly. Just like he did to them with Citizens United.

  • annas

    Do you think the SCOTUS understands the importance of this decision? I don’t mean to disrespect them, but this is a game changer!

    • http://www.ufcle.com/willis/willis.htm Steven Willis

      Based on the argument today, I think the Court understands the importance; whether some care in the way you or I care is another matter.

      I will back down on one thing. After listening three times, I am convinced we haven’t the remotest chance of getting Justice Ginsburg on the tax issue. I never thought we had any chance on commerce or Medicaid. I still see a remote chance, though, of 8-1 unconstitutional direct tax. I still puts odds at 2%.

      Justice Sotomayor appeared genuinely confused about the States’ Medicaid argument regarding standing. Mr. Kastas did an excellent job explaining it.

  • http://www.ufcle.com/willis/willis.htm Steven Willis

    If this were moot court, Mr. Kastas wins today easily for the opponents.

    Mr. Long was well-prepared and did a credible job with what he had; however, the AIA has equitable exceptions, very narrowly construed as the Court clearly stated in Bob Jones. I see no chance of more than a couple votes to enjoin.

    The Solicitor General was likewise well versed in the issues in general, although both he and Mr. Long made some errors regarding tax analysis. Nothing fatal, and probably nothing obvious to a non-tax lawyer. But, as the Chief Justice pointed out, he is arguing it is not a tax today, and a tax tomorrow. He tripped himself up using the term tax rather than penalty . . . and even Justice Breyer, who caught him on it, made the same mistake. He struck me as over-confident and too eager to interrupt the Justices.

    In my opinion, this is an unconstitutional direct tax. I see 6 plausible votes for that and 2 very remote votes, plus one impossible. Right now, I have no probable votes, but maybe tomorrow . . . .

    Tomorrow, we shall see how the Commerce Clause argument goes. I think we will know much more (despite what I said in the original post). I continue to believe it is the weaker argument for opponents; however, it is what the litigants chose to go with.

    Also, contrary to what I said earlier, after listening to Mr. Kastas a third time and also listening to Justice Sotomayor, I think the Medicaid argument has some life to it. I would not give it more than a 5% chance (and not likely that much), but it is stronger than I expected.

    Thanks for all the comments and questions.

    If anyone is interested, I plan to comment tomorrow. The transcript and audio should be available by about 12:30. I have class at 2:00, so I probably cannot digest it until late afternoon.

    • onemovoter

      I used to work at the UF College of Law as a IT computer tech. It was from mid 2005 to the end of 2006. My name is Mike and another guy who worked next to me was Micah.

      I remember getting to know all of the professors during that time, which was quite an experience. The most notable of all was that only one of the many professors there was conservative although not overtly. I had very high respect because it wasn’t easy being in the den of law professors who ranged from middle of the road liberal to extreme left wing.

      I was brought on mostly to help with the Dell computer swap upgrades. I had set up an appt. with a female professor to upgrade her PC while she was teaching class. I did so and left a note to contact me at IT to complete the login and restore her desktop and files.

      Somehow she didn’t comprehend this part and preceded to chew me on the phone with profanity I have never heard before. Then she said she was leaving and to fix her PC before she got back. That only took a few minutes, and then I went to my boss and told him the whole story.

      Later a meeting of the professors was held on this “issue”, although she wasn’t singled out, she knew it was about her. The conservative professor mentioned to her that she did have a tendency to get emotional and go overboard. She then started crying.

      Question is, are you the conservative law professor there at UF Law? I’m no longer in state but figured I’d say hi for one, and say it was some of the best time spent down in Florida.

      OK now on topic. Ever since health insurance became the norm during the Great Depression, the states held the power to regulate the insurance companies and cross border policies were prohibited. This kept insurance as intra-state activity so the state government could regulate them. Wouldn’t this exclude the applicability of the commerce clause of the Federal Government?

      Or is that being too simplistic since the case of the local wheat farmer could be regulated under the CC because not buying wheat from across the state border affected commerce thus the Feds could pretty much do anything? Which they have pretty much. BTW does anyone remember the name of that original case?

      If ruled uncon. on the bases of a limited CC, would that open the flood gates to other cases in pushing back on the power of the Federal CC?

      I do agree that the direct tax line is probably the stronger of arguments against ACA. I can see though proponents of ACA arguing that SS and Medicare have been ruled constitutional as direct taxes, but because the gov. gives a public benefit in return, along with it being taxed on income (17th) equally (although that’s debatable)

      I could actually foresee insurance companies grouping to sue on the basis that the exchanges (if run by the federal gov.) in conjunction with the very low “penalty” is an insurance company onto itself, collecting fees well below cost to drive them out of business. IIRC, other so-called monopolies have been sued for such actions under Rico? and other statutes. I know that is far fetched but who knows.

      Hope to hear a response. Thanks.

      • http://www.ufcle.com/willis/willis.htm Steven Willis

        I do not recall the particular incident at UF, but I do know of similar incidents and I regret any of my colleagues caused you unpleasantness. Indeed, today, I am the only registered Republican on the faculty of about 75. During the time you were here, we had at least two others; however, one passed away and one retired. I am the adviser for the Law School Republicans, the Federalists, RIFLE (a group of law students who like to shoot guns and also train people on gun safety), and the Christian Legal Society. Sometimes, being the only “out” conservative is very difficult and lonely; however, standing up for what I believe has gained me some respect, if only through fear.

        Back to your points, Wickard is the wheat case you mention. Clearly, states have power to regulate insurance companies; however, such insurance is interstate, as well. My Blue Cross covers me when I travel home to Lousiana, for example. I have no doubt Congress can regulate health insurance, at least in the eyes of all nine Justices. Going back to viewing the CC as purely for matters which were solely interstate is not plausible.

        I’ve read much confusion lately about SS and Medicare. Neither involves insurance, which is what most people miss. Both are constitutional. The SS and Medicare tax you pay on your wages is an income tax, constitutional under the 16th Amendment. Arguing otherwise is akin to arguing section 61 of the IRC (the general operative tax section) is unconstitutional: that argument is for tax protesters and always loses and will always lose. I might join others in seeking a repeal of the 16th Amendment; however, for now, SS and Medicare are constitutional taxes on employee wages.

        The portion of SS and Medicare paid by your employer is an excise and is uniform; hence, it is constitutional under Article I, section 8. I realize that economically, the employee suffers both parts; however, constitutionally, the two are very different. This is an important distinction in my brief.

        The benefits paid for SS and Medicare – retirement, health care, survivor’s, disability, burial – are all constitutional under the Spending Power. Congress may spend “for the general welfare.”

        The idea that SS and Medicare are insurance is a myth. Congress could repeal both today and the “promises” would evaporate. No one would have any cause of action to sue, even if one could enforce a judgment against the U.S. (which one cannot without a special bill from Congress). It is thus not insurance and not part of the national debt (at least not in a legal sense).

        While your RICO argument will not fly, I understand and appreciate your feelings on the matter. Indeed, I question the power of the federal government to sell insurance, including flood insurance. I believe, however, all nine Justices would disagree.

        Please email me sometime. I will tell Micah hello for you.

        Steve

  • celador2

    Pr Willis, if you have time would you share an analysis of today’s Sup court on can ACA survice without insurance policy mandate and if so ,what provisions can stand? Also the status of states and new ACA Medicaid obligations is a pressing issue.

  • bobmark

    If these questions have been answered previously please point me in the right direction.
    Will the court look at the law as a whole?, or can they strike down certain portions and kick it back to the politicians and let them tinker with it and try again? I believe the term is “severability” but I don’t know how it applies in this instance.
    What is the likelihood of legislating from the bench that although they can’t pin down a particular section of the constition to back them they know what they want and will torture the language to make that happen? I’m actually thinking this more in regards to the more conservative justices. Something along the line of “I can’t tell you exactly why it’s unconstitional, but it will cause so much harm to the country that I can’t let it happen.”
    From a more practical perspective, if the law is decided to be unconstitutional, what happens to all the pieces which have already been implemented? Do they just end too, or must they then all be argued (individually)??

  • westcoastpatriette

    and I am not an attorney, however, I just heard the Florida State Attorney General — Pam Bondi — discussing the matter of severability. As you may know, Ms Bondi will be representing Florida as one of the twenty-six states who are suing in this case. She stated that the court has scheduled for six hours of arguments to be heard over a three day period and the third day the issue of severability will be argued.

    My understanding of the term is that legislators must include a severability clause within legislation specifying that should the courts find any section of a given law unconstitutional, the remaining sections will stand. However, the stupid Dems failed to include this clause in this monstrous piece of legislation leaving the entire law vulnerable to crumbling before our eyes should the courts find any section unable to pass constitutional muster.

    Lower courts have disagreed over this issue, however, with some striking down the law in its entirety and others allowing only parts to be struck down. Ms. Bondi adamantly believes that without the clause within the law severability should not be applied. She also thinks should the courts rule the individual mandate unconstitutional, the rest of the law cannot stand on its own. Next week will be interesting.

    I predict the courts will strike it all down. What a wonderful day it will be.

  • http://www.ufcle.com/willis/willis.htm Steven Willis

    One of the issues before the Court is severability, i.e., whether the entire law falls if any portion (or significant portion) falls. Strictly, the Court is only looking at particular issues before it and not all the myriad details; however, it can choose to look at whatever it wants.

    I do not believe conservative justices need any manufactured reason to rule the law unconstitutional. To rule it constitution under commerce, they have to agree to apply and to expand prior decisions such as Raich and Wickard. I’m betting against that, but not much. More liberal Justices will likely use the traditional commerce clause cases and will expand them. I believe such an expansion is large; however, they will view it as logical and slight. If they were to use the Taxing Power to uphold the law, that would be a huge expansion; however, I believe that result is very unlikely.

    I address part of your last question in my due process article. If the Court strikes the Mandate, the penalty necessarily fails. The pre-existing condition requirement for insurance policies becomes unsustainable and would have to be repealed. That does not mean it would be repealed; however, health insurance would skyrocket in price (much more than it has) if it must cover pre-existing conditions and no general mandate to purchase exists.

    Repeal, if the entire law stands, will be difficult because of the filibuster rules in the Senate; however, reconciliation is a possibility to overcome that. Repeal would likely require a Republican House, Senate, and President – something I, personally, would handicap as less likely than the Court overturning the ACA.

  • davenj1

    you do not necessarily have to have an explicit severability clause inserted in the legislation for severability to attach. It is true that the stupid Dems, especially their moron-in-chief, Harry Reid, failed to include a severability clause. In the 11th Circuit (the Florida cases), the district judge used the fact that since the original House version contained the clause but the final version did not, it was indication that non-severability should apply. However, a three-judge panel of that Circuit Court determined, based on severability litigation from the past, the mandate was unconstitutional, but that the remainder of the law could proceed intact.
    As I explained in another post, the issue is less of the legal effects- whether or not the law contains the clause- and more of the practical effects. So much of the law depends upon the individual mandate and its enforcement regimen that to strike it down under the Commerce Clause would cause the remainder of the law to have no structure, not to mention funding for other aspects of the law.
    In that previous posting, people seemed to be under the mistaken impression that I was somehow for the mandate and Obamacare. I am of the opinion that the government can clearly regulate interstate commerce, but they cannot force you into interstate commerce, no matter how defined, and then regulate you. However, I conversely argued that based upon previous cases, the Court- certainly since the 1930s- has taken an expansive view of Congressional powers under the Commerce Clause. I cited the Wickard decision as the starting point and drew a line to the recent Raich decision (by Scalia of all people). And in actuality, it is in only one or two cases where the entire law has been struck down with only one of those victories standing on appeal.
    Personally, I hope they strike it down, or at least the mandate, thus removing the teeth from the monster. It would also be a victory for personal liberty. However, I am a realist and I understand their respect for stare decisis and these previous decisions. I do not have such high hopes as Mr. Willis, but this is one area where I sure hope I have misread something and that I am wrong.

  • westcoastpatriette

    I love studying law and will be paying close attention to developments next week. The stakes are truly high for every American including the Supreme Court justices. :)

  • http://www.ufcle.com/willis/willis.htm Steven Willis

    Having been so involved the past two years, I may lack some objectivity in my predictions. Some days, I fear all is lost; then, I tell myself that is just a defensive posture, preparing for the worst. Other days, I am very confident; then, I tell myself I live in a bit of an echo chamber.

    I thought about this a long time since Leon asked me to write a Diary on the issue. I stand by my predictions; however, I have placed and will place no bets. Thus my money is not where my mouth is. Most people I know – on both sides – openly predict the Court will uphold the law 5-4 or 6-3; however, that is what they say publicly and I cannot quote private conversations.

  • renl57

    I had assumed that omitting severability was due to a pledge to the insurance companies that they would never be stuck with an unfunded mandate for community rating and guaranteed issue. IOW, they would write policies to those with pre-existing conditions regardless of age IF AND ONLY IF the mandate for all citizens to purchase insurance remained in effect. If the mandate goes away, the insurance companies don’t have to write policies to those with pre-existing conditions regardless of age.

  • Scope

    may be a little more confident than you appear to be. I’ve seen him commenting on Fox a few times, and yesterday the Fox host told him that he is hearing that the decision could be 7-2, to which Atty. Rivkin replied that he can promise it will not be a 7-2 decision. He appears to believe that the SC will find the individual mandate to be unconstitutional. He talked about the wheat and the weed cases, as he put it this morning, and said that the SC was ruling on objects with those cases, and people didn’t have to partake of the wheat or the weed. Obamacare requires people to participate simply because they exist, and that makes a big difference, it is people vs. objects.

    Atty. David Rivkin was one of the attorney’s who argued the 26 state Obamacare lawsuit in both the lower court, and at the Atlanta appelate court. The lower court judge Vinson had the most sweeping ruling for overturning the law, while the appealate court also ruled the individual mandate unconstitutional. At the David Rivkin link, he has a good write up concerning the SC hearings.

    One of the things that he talked about yesterday was the swing vote judge Kennedy who he said has most often ruled in favor of federalism, which sounds hopeful to me. I never thought I would worry about Roberts and Alito, but they have ruled for sweeping Congressional powers in some cases. I read another article about all of the justices, and it disturbs me that Roberts and Alito have been referred to as favoring “new federalism” which sounds eerily like the liberals term “a living breathing constitution.” I hope I’m just being paranoid, and worrying for nothing.

    I am assuming that the prediction of a 7-2 decision in favor of Obamacare comes from an article at the American Prospect where they did some graphs showing ideology of the judges, and then case decisions, and somehow came up with Obamacare winning big time. They are guessing as much as anyone else.

  • tnguy

    Were one or both of them to side with obamacare, the failure of the Bush administration would be complete.

  • Melody Warbington (rwm52)

    to thank you and the entire legal team who are fighting this monstrosity on our behalf.

  • gawken

    Whenever the Supremes hand down their decision, either in June or October, totally tossing out Obamacare completely…48 hours after the decision is announced….the US will commence bombing Iran’s nuclear sites..

  • johnjohn23

    As another lawyer I can’t agree with you on the CC rationale.

    First of all, the standard isn’t commerce. The court has basically said that noneconomic activity can be regulated if part of a broader economic package.

    Second, even if commerce were the standard, fostering it seems to be a valued end. For example, that is why abortion can be regulated at all – the fetus is potential life that the state can value. Well if the state has an interest in fostering potential life it has an interest in fostering potential economics and can remove choice w.r.t. both.

    Third, there’s no discussion of the necessary and proper clause at all, nor Scalia’s Raich concurrence. If Scalia follows his Raich ruling and the 4 liberal members (2 Obama appointees) hold you’ve already lost the main issue.

    The constitutionality side will pick up the four liberals, likely Kennedy, Scalia if he follows Raich, and then Roberts will move so that he can assign the opinion. I see the most likely outcome as 7-2 Constitutional, with a less likely 9-0 and a slightly more unlikely 8-1. I can’t see my way to betting in favor of unconstitutionality, and if I was given a 7 or better majority I would give 90% confidence to it, and 6 or better I would give 100%.

    Cases of hugely public concern are almost never decided 5-4 if for no other reason than half of the time the chief justice swaps to control the opinion writing.

    There’s a lot of overhandicapping the nonactivity side of it. The test is largely whether the mandate is necessary to assert proper regulation over the 17% of GDP part of the economy. The court isn’t going to say that it isn’t, and that loses the case. The rest of these issues are piddily. I am cheating by knowing something of the arguments today, and it seems it won’t be considered a tax and the AIA doesn’t apply. Medicaid is voluntary and the act won’t be struck down on that. I don’t reach severalbility.

  • lineholder

    Lawyer you may be. A current member of SCOTUS you are not. There’s plenty of chatter both ways at the moment.

  • dvdmsr

    “proper” to assert proper regulation over the 17% of GDP part of the economy.

  • barleycorn

    I don’t have a law degree so I won’t bother trying to match legal jargon with you.

    However human nature is an interesting animal and when it plays out in a major case at the Supreme Court funny things can happen.

    Our law is never as simple, as cut and dried, as lawyers on each side claim it is. Learned legal scholars disagree most vociferously every day. Therefore I find your rather sanguine air of certitude to be of questionable merit.

    I would posit that the Supreme Court can and does conduct itself somewhat differently depending on how large the case is.

    As an example I believe the SC handled Bush V. Gore (a 5-4 decision on the main point by the way) differently then it might have had it been a less momentous issue.

    The fact that the Court assigned three days of arguments to this case and the fact that this is easily the most publicly watched decision since Bush V. Gore, suggests to me that the Court won’t dismiss the case in quite the nonchalant way you imply it will.

    Even for a Supreme Court Justice, the chance to make a ruling that will profoundly alter the course of history doesn’t come along very often.

  • lineholder

    What is the possibility that the provisions pertaining to Medicaid included in ACA could be over-ruled?

    It’s fairly obvious, even to a casual observer, that the federal government would indeed be inclined to use coercive measures to enforce the expansion of Medicaid. (The current example of the federal government’s response to the situation in TX pertaining to Planned Parenthood provides direct evidence of such. States either comply or the federal government threatens them withholding all funds for provision of Medicaid insurance and services).

    It may seem like an insignificant issue to many people, but for those of us who know how the payment reimbursement system works and have taken the time to read the ACA outline and to consider reduction of DSH payments included in the law….Medicaid is an issue we’re watching closely.

  • uneasyrider

    Have you listened to Al Gore recently? We dodged a serious bullet with that one. He’s a true believer in rapid man made climate change. He seems to truly believe that the world is going to end soon because of global warming. He would have done everything in his power to stop what he perceived was the cause. If he had won, we would be longing for $5 a gallon gasoline.

  • annas

    are posting opinions that seem to be overwhelming that Obamacare will be upheld. This will be disaster for our country in my opinion. Will someone please tell me WHY the conservative judges would sell us down the river?

  • jaykali

    I think this will go down 5-4 one way or the other, so what really only matters is what Anthony Kennedy thinks.

    For me I just have a gut check kind of feeling the mandate will get struck down and maybe the medicaid stuff as well. I doubt they strike the whole bill.

    I just don’t see how Kennedy would open the floodgates for the commerce clause to be used by the govt to force individuals to do literally anything. I think he and the others understand the implications of the mandate being upheld. So count me in on the mandate getting struck down 5-4.

  • http://www.ufcle.com/willis/willis.htm Steven Willis

    At the Circuit level, one conservative judge relied more on precedent and another on a different more narrow ground. Do not read too much into that. The SC tends to look at it de novo.

  • Dave_A

    The liberals are arguing that Obamacare is just another Commerce Clause case in line with the long history of letting the feds do almost anything they want so long as ‘commerce’ is taking place somewhere…

    They are also framing this as a choice between ‘Keep Obamacare’ or ‘Toss Wickard’ – and tossing Wickard would essentially repeal almost all federal law passed since 1942, which would be very, very bad from a ‘order & chaos’ perspective….

    Following this line of reasoning, Wickard is untouchable for pragmatic reasons (not wanting to throw everything into chaos by wiping out almost 80 years of law), so Obamacare must be safe…

    However, as DeVine posts above, there is a ’3rd way’, which is to declare that Obamacare is too far outside the realm of Wickard, and thus a federal overreach because it seeks to compel people to engage in commerce who otherwise would not, rather than regulating existing commerce…

    If Obama-care goes down, that’s how it will happen – either that, or by ruling that the penalty-tax is an unapportioned direct non-income non-excise tax – and thus unconstitutional.

  • barleycorn

    I can’t see the conservatives including Kennedy deciding on some uber-technical point that American’s can now be compelled to enter into a contract against their will.

    I think the the Court will tell Congress and the President, if you want universal health care then make it an entitlement like SS, Medicaid, and all the rest.

  • barleycorn

    no apostrophe needed.

  • johnt

    The optimism here is making me giddy.
    Perhaps when we get around to the Privacy argument there will be something left standing.

  • johnjohn23

    In fact the OP finds 60% the other way. I think he and I are in agreement that the odds that the other issues will come into play is essentially nil.

    But I think he would agree that history is on my side that regardless of how close the issue is, the court won’t come down close. We’ve had a lot more explosive issues – striking down separate but equal, Roe, etc, that did not get 5-4. Even the Bush v. Gore case that you site – 7 justices agreed there was an Equal Protection Clause violation, it’s just that the question of whether ballot counting should stop (the specific remedy) was a 5-4 decision, and it was more exciting to call it a 5-4 than a 7-2 in the papers.

    The court knows its not beneficial to either the law or the court to have a 5-4 decision. And on top of it when you have the chief justice in the minority they tend to swap purely for the purpose of being allowed to assign who writes the opinion, and then another minority justice might swap to be the person who writes it. So you have factors pulling away from a 5-4. So it’s going to swing heavily in one way or another, and both Kennedy and Scalia even seem partial to the liberal argument.

    I really like the OPs post though, because it gets away from a lot of comments you see on random sites that discuss, for example, the freedom of the people, which isn’t even before the court. Nobody questions that Congress has the power to regulate interstate commerce, the only question is whether the included individual mandate in a law that is largely about interstate commerce is permissible. That’s an important question and a good one, and if we lose then we fight to take a majority and repeal it.

    Congress could work the mandate by taxing us, and then giving us vouchers to spend on healthcare. It would achieve the same goal and it would be obviously constitutional. There really is no question that Congress can force the purchase of a good, and I like when the discussion turns to the actual Constitutional issues, and how a free society should deal with them.

  • Dave_A

    Which kills the coercion argument, but also holds up the possibility of defeated states abandoning Medicaid unilaterally, if the ACA is upheld.

  • http://www.ufcle.com/willis/willis.htm Steven Willis

    I doubt the Court will adopt the opponents’ attack based on medicaid. Essentially, this goes to the power of states versus the federal government and is, in my opinion, integrally related to the 10th amendment. I just do not think the Court will go along, even though I would.

    The symposium i linked to in the AJLM will have a very good article arguing the Medicaid issue and unconstitutionality. Good author and good argument, but I don’t think it will win. But, I don’t think my argument will win, either (direct tax).

  • johnjohn23

    I’m not 100% sure of how Medicaid is changed, but basically the states got paid X per person on Medicaid. And now they are going to be paid more but forced to take on more people. So the amount per person (X) is getting smaller. Ryan’s plan does the same thing (lowers X) it just does it to balance the budget rather than put more people on the government role.

    If X gets too small the states are free to leave, right?

    I fail to see how it’s unconstitutionally coercive in either instance, but I don’t know all the facts, maybe someone could enlighten me?

  • barleycorn

    Your last sentence is one heavy with danger.

    “There really is no question that Congress can force the purchase of a good, and I like when the discussion turns to the actual Constitutional issues, and how a free society should deal with them.”

    I am unsure how you mean that precisely, but if “”there really is no question that Congress can force the purchase of a good” then for practical purposes there is no “free society” to deal with anything.

    If the Constitution is to mean anything it must be agreed that the Federal Government has certain powers, the states have certain powers, and the people have certain powers. If the people’s power can be cancelled by the whim of the federal or state authorities, then the people effectively have no power. None.

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

    The entire justification for Obamacare hinges on what this line means:

    “The Congress shall have Power To: regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;”

    If that simple line can be stretched to mean that “Congress can force the purchase of a good”, then we the people have no power. None.

  • davenj1

    and have said so in the past. Given the history of their Commerce Clause cases, they would have to unravel or undo a lot of precedent and I don’t see Roberts doing that. From everything I have seen of his performance, he is very keen on the image of the Court and tries to move away from 5-4 decisions. I’ve written before that Scalia boxed in his logical argument with Raich. Some analysis have Roberts doing the same with Comstock. If you look at it strictly from the political side, it should be 4-4 with Kennedy the tie-breaker. But I can seriously see both Roberts and Scalia upholding the mandate. If that happens, then Kennedy might move over leaving it either 6-3 (Alito, Thomas, Kennedy in dissent) OR 7-2 (just Alito and Thomas in dissent).
    I would love to see Roberts stick it to Obama (on the personal level) after being admonished over Citizens United during that State of the Union Address. That is just the visceral response. Hey…maybe he is waiting to do that in Arizona v. United States….

  • lineholder

    (trying to figure out a quick way of expressing this…..)

    Even without overt coercion being displayed, coercion still exists, because of the way payment rates are structured.

    The current payment formula for both Medicare and Medicaid include a conversion factor for disproportionate share hospitals. In other words, if the hospital treats a high number of people with no insurance, this is factored into the payment system. Payment could equal X, then there are conversion factors incorporated into the payment amount so that payment ultimately equal (>1)(X). DSH is one of those factors. Where this has been advantageous for hospitals is that the DSH conversion factor is included for any and all Medicare and Medicaid payments to the provider.

    An elimination of DSH is included in ACA. Regardless of the decision states make about expanding enrollment for Medicaid. Elimination of DSH will drop payment rates for both Medicare and Medicaid. But it’s likely to leave a lot of hospitals, particularly inner city hospitals or hospitals where unemployment rates are significantly high, at risk.

    Within the context of risk analysis, there’s only so much that hospitals can afford to take right now. So, even though the coercion isn’t necessarily placed on the states, per se, it is being placed on hospitals as providers to engage in Medicaid enrollment expansion.

    States don’t necessarily get the option to “just abandon”. Not with the way O-care is constructed. It isn’t as “voluntary” as it seems.

  • http://www.ufcle.com/willis/willis.htm Steven Willis

    The oral argument and a transcript are .

  • http://www.ufcle.com/willis/willis.htm Steven Willis
  • http://www.ufcle.com/willis/willis.htm Steven Willis

    The argument is 89 minutes.

    First 10 minutes give the impression the amici does not fully understand tax. Same is true of some questioners.

    The Q & A is much better afterward. Breyer asks some very good questions about the anti-injunction act and about whether this is a tax.

    At minute 59, the solicitor general mistakenly refers to the penalty as a tax. Justice Breyer points it out and hilarity ensues. Actually, very funny and potentially very damaging. This is indeed a tax and that is the best issue for opponents.

  • http://www.ufcle.com/willis/willis.htm Steven Willis

    Others on other blogs are suggesting the Court does not appear to entertain the tax argument.

    I disagree almost to the point of being diametrical.

    Justice Breyer asked about tax a few times and is difficult to predict; however, he clearly entertains the idea.

    The opponent attorney is arguing at minute 75 that the penalty and mandate are separate. That is an argument I make, as well. Justice Breyer appears to disagree in his questioning. Viewing them together is related to the AIA issue and would tend to predict injunction. If the Court decides on CC, viewing them together is favorable to the government. If the Court decides on tax, the view goes the other way. Very interesting.

    No one has argued that the AIA does not apply to the States, which is facially true. That is amazing.

  • romeg

    and I view legislators as viruses attacking a potential host (in this analogy, the U.S. Constitution) and the Court as the anti-viral agent (I’ll admit it’s not a perfect analogy but humor me for a moment.

    The Founders create this nearly perfect organism (The Constitution) but its flaws had to be addressed. Meanwhile, certain pathogens (liberal legislators, activist presidents and activist judges, you get my drift) unceasingly looking for ways to break down certain barriers that would permit them to have their way with the aforementioned host. When ever that AV agent kicks in, it begins to reveal the genetic code that the pathogens then use to begin to plot their destruction/subversion of the host. Very often the pathogen gets completely annihilated but, often enough the pathogens survive in enough numbers to get a fix on how to mutate and continue their nefarious task.

    We are 223 years in now and just look at how much of that original masterful organism has been attacked, infected and has atrophied, some for the betterment of all but too much of those parts that protect individual liberty have withered and died, yet the malefactors continue their unrelenting attack.

    How long can this continue before the fabled ‘tipping point’ is reached and we collapse into a tyranny even worse than the one that preceded the Declaration of Independence?

  • Xasteius

    no text

  • aesthete

    It’s somewhat analogous to speed limit and drinking age — sure, each state is at liberty to set its own in theory, but in practice the federal government sets both by taxing, and then withholding monies based on adherence to their regimen.

  • lineholder

    I read through the transcript, and just about fell on my face when Justice Ginsberg wanted to know why people aren’t receptive to the idea of enrolling in Medicaid.

    I can tell her the reasons as to why. The system is constructed in a way that limits assets. You can only have so much in savings, so much in net worth pertaining to property, etc. And a lot of times, in order to qualify for Medicaid, you have to reduce your net worth to get into Medicaid. Once you do that…well, you can only earn so much money, and you can only save so much money, before you get booted out of the system. It usually requires more savings to break away from the system than the person is “allowed” to have in savings. And depending on the circumstances…you get stuck in the system.

    For example, I know of someone enrolled in Medicaid who won’t even accept extra hours of work because she has a child, she needs medical insurance for herself and her child (she’s a single parent), and she’ll lose access to Medicaid if she accepts the extra hours. It would put her over the income limit.

    Another reason is because it has become more difficult to find a provider who accepts Medicaid insurance.

    So you get stuck in the system, you may have turn down opportunities that would let you get out of the system, and you have problems finding a doctor as it is.

    I think Mr, Katsas made a good argument on that point. It IS a pocket book injury for states.

  • lineholder

    that insurance is being mandated, with Medicaid being provided as a means of complying with that mandate…a lot of people wouldn’t choose to do that voluntarily but may feel obligated to do so in order to comply with the law.

  • lineholder

    Understand, I don’t want to sound like some sort of “know it all” where reimbursement policy and payment rates are concerned. But those things play in intricate part in this particular situation. And if people aren’t aware of the part that it plays, then they don’t necessarily recognize that “voluntary” isn’t really voluntary at all in the context of the reality.

  • aesthete

    Hence the “technically”. The analogy I used was a bit flawed; comes from rush posting.

    I disagree with much of what Dave A writes, but I can see where he’s coming from in that Medicaid isn’t explicitly run as a federal program, even though it basically is a federal program whatwith the things that you mentioned. That was the analogy I was trying to go for.

  • johnjohn23

    Look at all the ways states force the purchase of goods and services.

    They can directly order it, like Illinois does with Automobile Insurance. If you drive, you must buy this good or pay a penalty.

    They can tax and then provide the good. This is usually done with education. You can’t opt out of paying for education, even if you have no children. You can be more democratic and instead provide vouchers for the tax, that gives you choice in where you spend your money but ensures you spend it on education. But it’s also done with roads, rails, and to some extent airlines.

    You can essentially regulate the business themselves but provide them a monopoly, making them a quasi-governmental arm. This is usually done with utilities like electricity, water, and garbage collection.

    All of these are compelled purchases. They are compelled whether you want them or not. You’re going to pay for education or an army or a police force regardless of if you want them, you’ll pay for unemployment despite you having a job and you’ll pay for food stamps even if you have enough to eat.

    There is very little unique about mandating insurance purchasing. The only difference from the examples I give is that most of those examples are state examples, not federal ones.

    It is true that the federal government is of limited powers. We conservatives always note that. But traditionally the commerce clause has been read broadly and with good reason, the commerce clause is largely the reason we are operating under the Constitution rather than the Articles of Confederation. Prior to the commerce clause the states all looked out for themselves and prioritized their goods over other states’. The federal government was given wide latitude to prevent that and to create national economies. National economies and common defense are what make us the United States.

    Congress has now chosen to take an economy they largely allowed to be a state-by-state economy and create a national framework for it. Regardless of how wise or unwise that is, it is exactly the kind of thing the framers intended, imo. If the path is wrong, the solution to it is political, not judicial.

    There is no question before the court as to whether the constitution reserved the power to the people, the 10th amendment w.r.t the people has not even been appealed to the court and it would not work anyway. In any case, I’ve just given a dozen examples where governments have mandated purchases. One issue I have with my fellow conservatives is that whenever governmental power is used against them they bring up a 10th amendment argument, but not liking how the government sometimes chooses to use it’s power is not the same as not having delegated that power to the government to begin with. There’s a difference between being stupid and being unconstitutional.

    It is to me a foregone conclusion that a thousand page bill that deals with 17% of GDP is sufficiently interstate to warrant regulation. The only question is whether the individual mandate is a necessary part of that. For me it is a simple question of: Healthcare is a large part of the economy, people will (whether it is right or wrong to say this I don’t know, but this is what congress thought) benefit by having more choice and a freer insurance market by forcing insurance companies to accept pre-existing conditions to prevent a captive market, the only way a pre-existing condition ban can be financially viable is for everyone to have insurance all the time (and not wait until they get sick to purchase it), thus for a free, national market we must mandate insurance purchasing. That seems completely necessary and proper to me, and I think the court would find the same. We have delegated to the federal government the power to control interstate commerce, and further given them the power to do whatever is necessary and proper to carry it out. We may not like the way Congress has chosen to regulate, but that doesn’t make it run afoul of the 10th amendment.

    This is precisely the argument I don’t like having. I would much rather discuss whether the mandate is, in fact, necessary and proper, and that necessitates a discussion as to other avenues. The house republicans keep saying repeal and replace, but I have seen no repeal and no hint even of what a replacement would be. Why don’t we come up with an actual framework about what to do rather than just platitudes about capping malpractice fees and allowing sales across state lines? That’s a constructive argument and issue.

    Congress can force the purchase of a good. The people still have power.

  • johnjohn23

    There is a point where Kagan (I think?) asks for an example of how the court would be overrun if this is held non-jurisdictional, and Scalia jokes along with her that they wouldn’t be unless the courts/attorneys were incompetant. Roberts says something along similar lines. I don’t know about whether it’s a tax, but there seems to be a clear majority that it is not jurisdictional, which would render the issue waived on this case.

  • falconrap

    I find that too many of you have complicated these issues to a degree that makes it impossible for an easy decision to be made on an unquestionably unconstitutional law. No government can require you to purchase anything. Automobile insurance is not required for you to live your life. It is only a requirement of being permitted to drive a car on public roads. It is merely a regulation of the act of driving using publicly owned property. Completely different issue.

    The reason why I believe an unconstitutional ruling is a slam dunk is simple: the law is greatly unpopular, unwanted by over 60% of the populace, violates several constitutional concepts (as noted in the article above), and, most importantly, is being brought for dismissal by a majority of the states. The SCOTUS justices know all too well the upheaval that will occur if they rule this law constitutional. This also gives the conservative judges, Kennedy’s view being the lynch pin, the opportunity to reign in Congress and President on the Commerce clause. And don’t think that several members of this court would love nothing more than to pull the plug on this.

    If this law is ruled constitutional, you better start buying guns and ammo because all heck will break lose, especially if we don’t see enough Republicans elected to over turn it through legislation. Quite frankly, it’s disgusting how the courts have dismantled many of the barriers that the Constitution had in place to prevent this stuff. A plain reading of the Constitution makes it obvious that this law is unconstitutional. The fact that all of these lawyers believe either way is possible, is a problem for our Republic.

  • http://www.ufcle.com/willis/willis.htm Steven Willis

    Good points on states compelling various activities. As you note, states have plenary police powers to do so; the federal government does not.

    I disagree regarding the primary purpose of the Constitution. It was and is primarily a taxing document. Under the articles, the federal government could request “requisitions” from states, but could force nothing and generally collected very little. Indeed, states were not cooperative or coordinated regarding commerce among them or with other countries.

    Regulating commerce was, in my view, the secondary reason for the Constitution, but not the primary. Some of the founders listed commerce first and some second as their reasons, so we each have history on our side.

    That said, I have no doubt a person’s not having health insurance has a substantial effect on interstate commerce. No one doubts that. But, the commerce clause has not internal regulatory power; instead, that derives from the necessary and proper clause. The Court has often spoken on what constitutes “necessary”; however, it has not explained “proper.” In my brief, I argue that proper means otherwise proper under the enumerated powers. What else could it mean? The supporters of the ACA claim it is the “elastic clause” and means whatever the Court wants it to mean in the sense that it grants additional powers to Congress. Most, if not all, references in the Federalist papers are to the contrary, in my opinion.

    Hence, I see no way either the Mandate or the Penalty is justifiable other than through the Taxing Power. That is where it fails. It is a direct tax and is unapportioned.

  • barleycorn

    I understand where you are coming from and yes in practice voting (and running for office our self) is really the only recourse the people have. And in a perfect world that would work.

    But voting is a most unwieldy tool while the courts, Congress, and the President have very fine tools at their disposal. So the logical conclusion if we follow your preferred path is the ever dwindling power of the people until at some point we lose even the power of the ballot.

    The elephant in the room is the fact that the entire Constitution is a house of cards. Its humanly impossible to actually delineate where the separation of powers is and therefore we have had tension in that regard from the very beginning of our republic. Between Congress and the President, between the Courts and Congress, and between the President and the Courts, and now in recent decades between the People and the Powers. The Forgotten Man here is “the people”. ‘The people” end up being treated as some kind of rump that essentially gets to vote and then watch as the Powers bargain away the peoples freedoms.

    I therefore say again that unless the inherent power of the people is recognized then we are all serfs dependent on the good offices of the Powers. Running throughout the Constitution is the clear intent that certain things are off limits for both the federal and state governments.

    It is a historical fact that what gave so many founders heartburn was their knowledge that:

    A: Government is essential to a civilized society.
    B: Government is antithetical to a free people.

    Elsewhere in this thread you and another lawyer debate whether the primary reason for the Constitution was taxation or commerce. I would say it emphatically was neither. The Constitution’s raison d’?tre was to limit ALL forms of government and reserve to the people freedom and independence. When even conservative lawyers forget, or worse repudiate, that intent, we have problems insurmountable.

  • iluvit

    Your use of the State practices of requiring is fallacious. Driving is a is something that people choose to do and is a privilege. By exercising that privilege then you assume the terms by which you may drive without a penalty if you violate those terms. This act gives you no choice to enter into the contract and penalizes you if you violate this contract that you never agreed to.

    In order to establish a valid contract and duty to perform there must be mutual understanding and agreement between the parties involved. I face this issue almost every day regarding the validity of contracts that I negotiate. Now a person can it seems agree to a contract by acquiescence by after being informed not actively declining to enter the agreement. So I think a person may have to give notice to the government that he or she declines the offer to participate in Obamacare.

    A contract cannot be forced upon anyone under threat duress or coersion. It cannot stand if proven true. Surely this applies in this case. Here we are forced to participate buy buying something we do not want to purchase. Theoretically, since everything we do involves commerce we could be mandated to purchase anything purely at the whim of Congress. Since the Bible for example is a good moral guide even if you are atheist, then surely it would be seen by many as a good thing for every American to own a bible and since the promotion of morality would promote a collective good thing and it would make a Bible affordable for everyone then would it be a stretch for the government to promote the Bible as a literary and historical text, not in a religious sense. Can you imagine the outrage. And of course you can easily see a progressive congress requiring everyone to buy a Chevy Volt. The list does not end when you start violating basic freedoms simply on the basis that you are breathing American air.

    On the issue of the tax. You seem to not realize that the bill did not have the votes to pass as a tax, and certainly does not now. Even lots of the dems were not really excited about putting a new tax on their base who pay very little in taxes. This base of hand-out parasites would not be so thrilled with their masters.

    Seems like you are intent on seeing this takeover survive, but as a matter of law, it should not. If it treated a a political football, then it may. I am somewhat dismayed that you think you understand the most inner thoughts of Scalia!

  • wlcjr

    First it is the state, not the feds which require insurance to drive, but most importantly if you don’t drive you are not required to buy insurance. Secondly you can’t opt out of education taxation but the service is simply the opportunity for an education. The opportunity for health care already exists.
    Is the mandate necessary and proper, well of course it is neither. It has not been deemed neccessary since the creation of our country and we have generally prospered, and it is not proper in a limited govt framework because it forces action when rights are not threatened. Obama said it himself, the constitution did not include for redistribution. Taxation for general services such as police/military/schools is completely different than for health care because these things are provided to protect your rights. You do not have the right to health care because you do not have the right to the labor of others. You do have the right to the opportunity to obtain heath care, and that right is already protected. If health care is to fall under general services such as the police, then surely there is no limits to govt action as there is no philosophical difference between health care and food, clothing, housing and energy. Communism, straight up.

  • JSobieski

    Government can tax your income
    Government can spend the money on virtually anything (spending is not limited to enumerated powers)

    Obamacare could be implemented by a tax, with the government going out and buying insurance on your behalf. Based on current precedent, nothing would stop that from being constitutional.

    Change 1.5 variables (1 government buying you the policy, 0.5 the tax issue) and you have Obamacare.

    The Founders got in some very intense arguments even though the federal government was far simpler than it is today. Trivializing complexity doesn’t accomplish anything if you want an honest intellectual inquiry.

  • johnjohn23

    It’s kind of arrogant to say that all the people who spend years studying this have it wrong and you, personally, have it right. You point to a spot where it says your government can’t make you buy anything. Meanwhile I’ll point to the fact that every time you make money you are paying for police, for an army, for roads, for train subsidies. What do you think these are? You think because you personally don’t direct what happens with them that you are not a part owner in goods purchased? When a government gives a monopoly to an electric company or pays a public school you don’t think that is someone selecting a good for you? When your state comes in and closes down restaurants with unsanitary food preparation you don’t think that’s an infringement on your liberty to eat whatever food you want?

    Of the top 3 candidates for President (I don’t know Paul’s position) one of them implemented government mandates of private insurance, one of them championed it and the last championed either buying it or forcing you to set money aside as a bond. You can’t blame them, since during Clinton’s administration THAT WAS OUR REPUBLICAN POSITION. Are all of these people being unconstitutional despots? I assure you that if it is unconstitutional the answer won’t be a one-sentence opinion that says “No government can require you to purchase anything.”

    It may very well be unconstitutional, but I doubt it, and it certainly isn’t a slam dunk. Because it’s unpopular? You know what else polls poorly? The fourth and fifth amendments. When you tell people “Here is a proposed law” and you read them the text of those amendments, a vast majority don’t want them. But constitutionality isn’t decided by what is majority popular at the time. You also might want to read about how many ways Social Security was attacked as unconstitutional and is still around.

    Again I really would like to have a discussion about what to do about healthcare, and what can be said to counter the fact that an individual mandate is necessary and proper. Our “presumptive” nominee keeps pointing out “If Obama had come to me I would have told him he was wrong” and that he will immediately repeal Obamacare, but he’s awfully light on what he is going to do instead.

  • quill67

    I’m sorry JSobieski, but the government is SUPPOSED to be limited by the enumerated powers. Liberals have used the general welfare clause and the commerce clause to ignore these limitations BUT those limitations ARE supposed to limit the government. This was EXACTLY the founders intention.

    So please be clear when you say that the government spending is not limited by the enumerated powers because it is supposed to be.

  • JSobieski

    Look at the words, and you should notice that a specific word sticks out.

  • quill67

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

    Notice that the necessary and proper clause refers to the “foregoing powers”

  • aesthete

    A textualist would say what you just said.

    An originalist would point out that raising funds for all sorts of things outside the enumerated or implied powers (Bibles, for one) was not common, but did happen. It’s not an open-and-shut case (J Madison and others had harsh words to say about this practice), but it’s not as simple as the textualist case.

  • quill67

    But Madison was clear and this is what he told the states:

    James Madison advocated for the ratification of the Constitution in The Federalist and at the Virginia ratifying convention upon a narrow construction of the clause, asserting that spending must be at least tangentially tied to one of the other specifically enumerated powers, such as regulating interstate or foreign commerce, or providing for the military, as the General Welfare Clause is not a specific grant of power, but a statement of purpose qualifying the power to tax.

    So the States were told that the Federal Government would be limited, and Hamilton like a good Modern Liberal tried to cheat AFTER the fact. But the states signed on for LIMITED government not UNLIMITED.

  • lineholder

    Forbes about this. What it comes down to is the difference between “pressure” and “compulsion”,with compulsion being an unconstitutional violation of the separation of powers.

    http://www.forbes.com/sites/aroy/2012/01/27/could-the-ppacas-medicaid-expansion-be-unconstitutional/2/

  • JSobieski

    Each power stands on its own. No phrase modifies any other phrase, with the exception maybe of the catchall phrase provided at the end.

    “The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States;”

    Taken literally, there are no limitations on tax/spending powers except for those limits provided in the sentence above.

    Spending for the “general Welfare” is supported by the language in the Constitution.

    Contrary to liberals, there is no corresponding regulatory power based on the “general Welfare” but that does not refute a textual argument for saying that the Constitutional limits to spending power are illusory—they are political. In contrast, the tax power has real limits.

  • JSobieski

    ?The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States SUBJECT TO THE CONSTRAINTS OF THE ENUMERATED POWERS OF THIS SECTION; but all Duties, Imposts and Excises shall be uniform throughout the United States.”

    Do you think Lewis & Clark was an unconstitutional expenditure?

  • JSobieski

    if hazardous materials are discovered on your property, you will be legally required clean it up even if you can prove the materials are the result of something a bankrupt company had done decades earlier.

    Unless you can personally perform an environmental cleanup, you will be required to pay a private party to do the work for you.

    Throw in all the stuff we are forced to pay government employees to do, and the whole mandate thing rings a bit hollow.

  • falconrap

    the Constitution is supposed to be about We the People, and the United STATES, and what powers they have GRANTED to the Federal government. Lawyers, such as yourself, have spent years twisting the meaning of this document through numerous court opinions to get us to the point that the General Welfare clause is used to allow anything that remotely impacts a person’s welfare when it is very clear, through the plain language of the Constitution, that the Federal Government is to be a highly limited entity whose main purpose is to provide safety, regulate INTERSTATE commerce (commerce done between the states, and not commerce that includes companies from other states), and dealing with foreign powers through treaties, agreements, and war. The states get what power the people allow them through their state constitutions, excluding any power that violates the Bill of Rights, which secures certain liberties for the people themselves (such as the right to bear arms). Being able to raise taxes for police and such is a STATE power, and, again, one limited by the particular state’s constitution (different states have different taxing powers – Florida, has to raise money through means other than income, for example). All powers not vested in the US or state constitutions are supposed to belong to us, the people.

    Quite frankly, I find it highly arrogant that lawyers believe they are the sole arbiter of the Constitution. Quite frankly, it’s one of the reasons we are in this mess. The fact that people of law can twist the plain words to mean so many things, and simply not abide by the plain meaning expressed by the founders, re-iterated through the Federalist Papers, is pretty sad and disgusting. Judges (mostly appointed/elected lawyers) have taking the Constitution away from the people and made it a domain of people that spend $100k+ on a law degree. This is NOT the way the founders intended it. If the SCOTUS decides to rule this abomination against freedom constitutional, and it’s not repealed by the new Congress and President, then I will weep for what will come. Many in this country will not sit idly by while the US government continues to strip us of our freedom and turn us into good little serfs and peasants.

  • barleycorn

    “Meanwhile I?ll point to the fact that every time you make money you are paying for police, for an army, for roads, for train subsidies. What do you think these are? You think because you personally don?t direct what happens with them that you are not a part owner in goods purchased? When a government gives a monopoly to an electric company or pays a public school you don?t think that is someone selecting a good for you? When your state comes in and closes down restaurants with unsanitary food preparation you don?t think that?s an infringement on your liberty to eat whatever food you want?”

    Everything you list is on the other side of a personal freedom line from the individual mandate. As I mention elsewhere on this thread, there has always been tension between the various arms of our Republic. The president asserts Executive Privilege and usually gets away with it but not because Congress agree but because they choose not to press the point UNTIL something like Watergate comes along.

    To “the people” the individual mandate is Watergate. This is the point past which we shall not be pushed.

  • lineholder

    it almost sounds as if you’re under the impression that states get blanket payment per person per year for Medicaid recipients. That isn’t quite the case. Payment rates are capped, but reimbursement is still issued on the basis of episode of care, dependent on the DRG for services provided.

    Where the expansion of Medicaid gets tricky is that we’re talking about approximately 16 million people. Some states will have higher enrollment numbers than others. Medicaid is a joint program between the federal/state government. There are states that simply can’t afford the economic burden of that expansion at this time and wouldn’t voluntarily choose this course of action.

    Should they be compelled to do so? Or does the separation of powers prevent it? I think that’s where the question lies.

    Economically, expansion of Medicaid will wreak havoc all the way around. We’ll be looking at a third major entitlement program within a few years. And it disrupts the equilibrium that health care providers have depended on to maintain profit margins for the last four decades.

  • johnjohn23

    Thanks, a good read.

    It’s kind of what I thought. There’s no question that the states can summarily choose to opt out, and there’s no question that the federal government can choose to end the program altogether. States could choose to just end the federal funding and have no safety net for the poor.

    The fact that some states find that politically unpalatable doesn’t make it unconstitutional :/

  • lineholder

    If you haven’t done so already. The article I posted above provides good information, but the approach Katsas is taking in the actual arguments before SCOTUS does vary somewhat. He presents a good argument.

    Mr. Willis has posted a link below. Go to page 67 and start from there.

  • babykaboomer

    My popcorn maker is heating up as I type. Yes, PLEASE!!

    And thank you so much for your time. The depth of discussion your post has engendered impresses me no end.

  • acat

    You can also be forced to clean up the materials even if you can prove it’s natural. IIRC, someone was forced to mitigate arsenic in groundwater even though it was there naturally…

    Mew

  • http://www.ufcle.com/willis/willis.htm Steven Willis

    At best, I see two votes for applying the AIA, and probably only one.

  • celador2

    Thank you for your diary with so many details and points and for all your work to repeal ACA.
    You write from experience.

    You say the odds that ACA will be stricken on Tenth amendment grounds and Medicaid are only 1%?

    Federalism takes a hit with ACA that is a fatall blow.

    The states are reduced to vassals under a harsh overlord under ACA mainly around Medicaid. Even California had issues with ACA and Medicaid. ACA abuses the states authority to administer Medicaid specifially as much as it does to regulate health care in exchanges.

    Interestingly, Bill OReilly a TV pundit predicted ACA would fall based on the states authority to regulate health care and Medicaid. He is the first and only pundit I view to give such an opinion making a case for the Tenth amend violations to overturn ACA.

    If ACA challenges are about federalism and ennumerated powers then the states and Medicaid burdens is a prime example of overstepping the federal authority.

  • http://www.ufcle.com/willis/willis.htm Steven Willis

    As noted above, after listening to the oral arguments yesterday (four times) and after reading the transcript, I changed my analysis of the 10th Amendment argument’s chances. Mr. Kastas performed brilliantly and actually appeared to communicate with Justice Sotomayor. She was genuinely confused and sounded as if she genuinely listened. I’m not suggesting he got her vote; however, it may have persuaded others.

    I increased my predicted odds to about 2% or so for that argument. Please note, I am 100% convinced my argument regarding taxes and my argument regarding due process are correct. Nevertheless, I predict a 2% chance for my tax argument winning and less for due process. But, ask me again tonight after I listen to another two hours on CC and tax.

  • quill67

    Why bother listing the things the Federal government can do if it can do whatever is in the “general welfare”

    The purpose of the constitution was for limited governmnent and if they could simply do anything that was in the “general welfare” the Constitution is moot.

    Finally, it is funny you mention the semi-colon. The author of the Constitution said this about the semi-colon in Federalist #41. That is BEFORE the Constitution was ratified to explain what the proposed Constitution meant:

    But what color can the objection have, when a specification of the objects alluded to by these general terms immediately follows, and is not even separated by a longer pause than a semicolon? If the different parts of the same instrument ought to be so expounded, as to give meaning to every part which will bear it, shall one part of the same sentence be excluded altogether from a share in the meaning; and shall the more doubtful and indefinite terms be retained in their full extent, and the clear and precise expressions be denied any signification whatsoever? For what purpose could the enumeration of particular powers be inserted, if these and all others were meant to be included in the preceding general power? Nothing is more natural nor common than first to use a general phrase, and then to explain and qualify it by a recital of particulars. But the idea of an enumeration of particulars which neither explain nor qualify the general meaning, and can have no other effect than to confound and mislead, is an absurdity, which, as we are reduced to the dilemma of charging either on the authors of the objection or on the authors of the Constitution, we must take the liberty of supposing, had not its origin with the latter.

    In fact, as Madison indicates above, he believes your position to be “an absurdity”

  • quill67

    Why bother listing the things the Federal government can do if it can do whatever is in the “general welfare”

    The purpose of the constitution was for limited governmnent and if they could simply do anything that was in the “general welfare” the Constitution is moot.

    Finally, it is funny you mention the semi-colon. The author of the Constitution said this about the semi-colon in Federalist #41. That is BEFORE the Constitution was ratified to explain what the proposed Constitution meant:

    But what color can the objection have, when a specification of the objects alluded to by these general terms immediately follows, and is not even separated by a longer pause than a semicolon? If the different parts of the same instrument ought to be so expounded, as to give meaning to every part which will bear it, shall one part of the same sentence be excluded altogether from a share in the meaning; and shall the more doubtful and indefinite terms be retained in their full extent, and the clear and precise expressions be denied any signification whatsoever? For what purpose could the enumeration of particular powers be inserted, if these and all others were meant to be included in the preceding general power? Nothing is more natural nor common than first to use a general phrase, and then to explain and qualify it by a recital of particulars. But the idea of an enumeration of particulars which neither explain nor qualify the general meaning, and can have no other effect than to confound and mislead, is an absurdity, which, as we are reduced to the dilemma of charging either on the authors of the objection or on the authors of the Constitution, we must take the liberty of supposing, had not its origin with the latter.

    In fact, as Madison indicates above, he believes your position to be “an absurdity”

  • westcoastpatriette

    for taking the time to write this diary and reply to the commenters. It is good to know we have dedicated conservatives such as yourself fighting on our behalf. And let’s hope your predictions come true. I have never felt so personally threatened by the federal government in my life and if the courts allow this law to stand, they will have failed in their most fundamental duties, IMO.

  • JSobieski

    Address the argument I am making regarding spending power and NOT the argument that liberals make regarding “general welfare” that swallows up Section 8.

    My argument/position does not swallow up Section 8.

  • JSobieski

    You are arguing against a straw man position that I am NOT arguing.

    If you want to argue against my position, let me know.

  • JSobieski

    while a REGULATORY framework covering say healthcare insurance could not.

    Bingo! All words in Section 8 are given meaning. No provision in Section 8 swallows up any other provision.

  • quill67

    Frankly, I believe you are talking about how liberal Courts have interpreted the Constitution and not on how the document itself was designed to be interpreted.

    I will add that President Coolidge vetoed a disaster relief bill because it was not an enumerated power. Disaster relief however might be justified under national defense, same with Lewis and Clark, and space exploration. Even some federal role might be justified in education for national defense

  • streiff

    but if I ran this site I’d ban anyone who started a post with “show me a Federalist paper.”

    That is a nice trivial pursuit gambit but 1) the Federalist papers are not law and 2) a lot of water has passed under the bridge since 1787.

    Even if you are right it doesn’t follow that your argument has any meaning whatsoever in the real world. All it does is make you sound like Ron Paul which is not a good thing.

  • JSobieski

    ?The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States.?

    Take out the tax clauses and you have

    “The Congress shall have Power to pay the Debts and provide for the common Defence and general Welfare of the United States”

    “Provide” in this sentence refers to spending. There are no additional explicit limits on this power any more than there are any additional explicit limits on the power to regulate commerce.

    (1) Do you acknowledge that such an interpretation does not render the other clauses meaningless?

    (2) Do you acknowledge that the commerce clause is not subject to any other limitations in Section 8?

    The “general welfare” clause is not a preamble to the other clauses o f Section 8. The only way to give meaning to each of the clauses in Section 8 is treat general welfare as being limited to spending.

    Note the lack of spending-related activities in the remainder of Section 8.

  • JSobieski

    to not make overly tight arguments that are silly (if Lewis & Clark is justifiable as a national defense power, liberals could support Obamacare on a similar basis).

    Better to accept reasonable definitions and hold the line.

    Liberals use “General Welfare” to render the rest of Section 8 meaningless.

    Some conservatives use “General Welfare” to a phrase without meaning.

    Look at the text of the document.

    “General Welfare” should be interpretted so (1) that it has meaning and (2) it doesn’t swallow up the other provisions in Article I Section 8.

    I have given you an interpretation that satisifies both.

    You have not done likewise.

    My interpretation should not be taken to agree with bad wasteful spending.

    My interpretation merely asserts that spending is rarely unconstitutional.

  • JSobieski

    but I have no reason to treat his constitutional interpretations as being particularly brilliant.

    Nor do we have a link supporting the specific constitutional aspect of the argument.

    P.S. Virtually plenary spending power has been true from the beginning. If you want to call Marshall a liberal justice and Jefferson a liberal President, that is fine with me.

  • JSobieski

    Government as owner can do more things that government as regulator.

    The power to evict people from government lands (such as a government building, a military base, etc). isn’t in the Constitution, yet that power is hardly controversial, is it?

    The only way to have regulatory power equal to spending power is to have a lack of property rights in a country.

  • johnjohn23

    Yes, obviously the powers not granted to the states by their people are retained by the people, and the powers not granted to the federal government by the states remain within the state power, we have all passed basic civics. (The Bill of Rights didn’t apply to the states for about 80 years after it was passed, it did not secure rights for the people, it merely stopped the federal government from being the actor. States were free to violate the Bill of Rights and did, legally, so it was not passed for the purpose of excluding state power. These are things a constitutional interpreter should know.)

    Lawyers aren’t the sole arbiters of the Constitution, judges are, and they are because that’s the power they are granted. That seems pretty agreeable to all. The purpose of judges and lawyers is to ascertain the law and it is not particularly easy to figure out the intent and of the founding fathers and the balancing of privacy with public powers with respect to say, warrantless GPS tracking. You won’t find the answer to that in a line of text. It is true that sometimes the plain language is enough. Other times it isn’t. In any case it is never the final word because the intent is expressed in congressional conversations, writings, etc. That is why we know whether the right to arms is a personal right and not limited to those within a militia, despite the rather obvious text. And I seriously doubt you would want, for example, the Equal Protection clause to actually be given it’s full textual power. If courts actually calculated what was equal protection rather than run a tiered-system to protect disfavored groups, you would never get a law passed.

    I find your suggestion that this is not the way the founders intended it puzzling, since they created the supreme court to interpret the laws, they created the ability for congress to create a federal judiciary and they granted them all lifetime appointments. It seems to still be functioning the same way it originally did. It’s never been up to the common person to say what the law is. Keep in mind this is the same group that proposed you not being able to vote if you didn’t own land, that did not give voting rights to women or blacks, that didn’t allow for popular election of senators, etc. The trend in the system is far more democratic than the founders originally had it.

    The Commerce Clause was originally used negatively, to prevent an individual state from passing laws that favored its home-grown goods to foreign goods. It has always reached “commerce that includes companies from other states” because that was largely the reason for its inclusion. Under the Articles a logging company in say, Virginia, had no method to get Massachusettes to allow it’s lumber to market on equal footing in MA other than to ask MA nicely to let it, which of course it never would. States have been allowed to place barriers as to what healthcare coverage was necessary to sell insurance within that state (and block out foreign companies/insurance) at the grant of Congress. Congress is making a move, maybe the first in a step of moves, maybe not, in taking away that ability and centralizing the legislation. That is what the vast majority of the law does and that part is not even being challenged. The only question is whether the necessary and proper clause allows the individual mandate as a necessary component of the scheme.

  • johnjohn23

    This is why I would like a Republican candidate to give a competing view. Congress’ action is presumed to be valid. If we both agree that not having health insurance has a substantial effect on interstate commerce, and it comes down to the necessary and proper clause, you can’t win unless you have an answer to “How else can it be done?”

    If Congress can regulate the field, and the only way to achieve the valid end in that field is by imposing an individual mandate, then I view that as inherently satisfying necessary and proper. Since people are mobile and disease is unchosen, a single state that would refuse to adopt a mandate would break the national system for other people, thus I find it difficult to claim the states can solve the issue. It suggests that a mandate is necessary at the federal level to achieve the regulation, and as our Republican congressmen keep making the case for them: This is a massive bill that circumscribes one-sixth the economy.

  • johnjohn23

    I will agree that as technology has marched forward the ability for the economy to be local has dwindled and thus the federal government has gained more power to regulate economic actions. The same is true for technology and state police power. The same is true for us having largely given the federal government more power in the post-civil-war amendments. But the government is not made up of automatons. We elect people and we can elect the right people. If we elect bad people we will get the government we deserve.

    We nominated a non-conservative and subsequently elected a host of democrats and they went and did what they thought was best. Perhaps time will prove them wise (SS/Medicare were both initially unpopular, and have become extremely so) or perhaps it won’t, but we have nobody to blame but us. We then elected a bunch of tea party which for one reason or another did not succeed in the goals they set forth, and we now nominate another non-conservative.

    We’re seeking to have the court fix what hasn’t gone our way at the ballot box. That is not the function of a court. If the democrats have been stupid there is a remedy, but it is not judicial in origin, not this time, in my opinion.

  • JSobieski

    nt

  • annas

    I could not wait to get back here and read your comments this morning. When you say there is 2% chance for 10th amendment argument and tax argument and even less for due process, it seems depressing to me. Are you predicting we lose the argument against ACA or is there something on which you predict we do have a chance win?

  • Lynn Otting

    legal analyst just reported that he felt like the mandate would not be upheld based on the SC hearing today. Considering the source, this is good news.

  • quill67

    and therefore there is no argument that could be made against the government taking over every aspect of our lives. Want to spend on health care? Fine. Just have the congress spend money to provide everyone with health care, then according to this open interpretation of the Constitution there would be no stopping them.

    2) A lot of water has passed under the bridge since 1787, but the states did not agree to an open ended role for government when they created the Federal Government. How many states even today would join a union where the centralized government had no limitations?

    I understand that the courts have ignored the Constitution. But I believe the Constitution should be followed or we should pass an amendment.

  • quill67

    But rather thanyou and me going on, perhaps one of our Constitutional scholars could provide some insight.

  • http://www.examiner.com/x-1597-Charlotte-Law--Politics-Examiner Mike gamecock DeVine

    In other words, the enumerated powers should be exercised for the general welfare of the nation and not for factions. I do not believe that the preamble allows for taxing and spending for anything that can be characterized as for defense or general welfare, ie anything.

    The commerce clause had a specific purpose, and that was to stop the practice under the Articles of Confederation of states acting like nations with respect to the other states with tariffs, etc and to create a free market within the borders of the US. See the early SCOTUS cases like The Steamboat case, Ogden etc, etc that Daniel Webster and CJ Marshall were involved in.

  • JSobieski

    Why don’t you argue with the points that I am making rather than the points I am not making?

  • http://www.examiner.com/x-1597-Charlotte-Law--Politics-Examiner Mike gamecock DeVine

    one could draw the conclusion that the preamble essentially means what ‘ski asserts based upon SCOTUS rulings, but clearly the Framers did not mean for the preamble to essentially negate the limited nature of the federal government.

  • JSobieski

    I also think that logic requires that government’s power as an owner/spender is broader than government’s power as a regulator.

    What is the constitutional justification for giving money to William & Clark?

    What is the constitutional basis for turning on the air conditioning in a federal building?

    What is the constitutional basis for the Justice Department asserting property rights to have someone removed from the premises?

    Its not a coincidence that tax and spending are in the first provision of Article I/Section 8, that there is a semicolon and not a colon after that first provision, and that the remaining provisions relate to regulatory matters.

    Spending power is broader than regulatory power. This principle was well established while people like Adams and Jefferson were still walking around and talking.

    I am all for taking on all sorts of Constitutional blemishes from the 20th Century, but this issue isn’t one of them.

  • barleycorn

    From The Hills coverage of today’s session:
    —————
    Kennedy argued the court has a ?very heavy burden of justification? for requiring that people purchase insurance.

    Kennedy also said the mandate would change the relationship between the government and individuals in a ?fundamental way.?

    The questioning was enough for Jeffrey Toobin, a legal analyst and staff writer for The New Yorker, to predict that the healthcare law appeared likely to be struck down.

    “This law looks like it’s going to be struck down,” Toobin said Tuesday on CNN.”I think this law is in grave, grave trouble.”
    —————

  • streiff

    it is in legislation and court decisions that have transpired since the ratification of the Constitution. Even the authors of the Federalist papers didn’t agree on everything and then you have the whole anti-federalist thing.

    While I understand your frustration, I think arguing coulda/woulda/shoulda is dysfunctional as even if you are right, it doesn’t change a single thing.

    The answer to the problem lies in electing people who agree with your point of view, arguing that something that the courts and Congress agree on is unconstitutional doesn’t make anyone seem very serious about a very serious issue.

  • JSobieski

    I am not arguing an interpretation for “an open ended role” for the federal government.

    I am arguing that the federal government’s spending power is far more expansive than the fedreal government’s regulatory power.

    I wish you would actually address the points that were actually being made rather than your straw man version of my arguments.

    I am NOT arguing for an unlimited federal government.

    I am arguing that a federal government limited to the other clauses of Section 8 EVEN when dealing with its own property rights would be non-functional.

    Want to turn on the air conditioning in a federal building? Where is that in the Constitution?

    It is in the first phrase in Article I, Section 8 (yes, the General Welfare clause)

  • JSobieski

    None of the arguments except for the 10th Amendment Medicaid argument have anything to do with the government’s spending power.

  • http://www.examiner.com/x-1597-Charlotte-Law--Politics-Examiner Mike gamecock DeVine

    as received from the federalist papers and even more so as per the anti-federalists. I would be interested to see a detailed legal brief that tries to make that case w/o resorting to the atrocious precedents since the New Deal, but I am unaware of any argument by the framers for this dichotomy that has the preamble as an expansion of federal power between spending and “regulation”. To spend is essentially to regulate in at least a vague sense. I would say that the word “regulate” is quite vague itself, and probably intentionally so, but the main purpose was clearly to end the states use of state borders as if they were nations restricting trade, and not an open-ended invitation to meddle. more later…I have actually been contracted by several publications to write 2-3 columns on the case over the next 10 days and will probably wait to weigh in fully on most issues for those that pay me! But maybe more later via comments if I feel the moral duty to defend you! smile

  • barleycorn

    You write: “If Congress can regulate the field, and the only way to achieve the valid end in that field is by imposing an individual mandate, then I view that as inherently satisfying necessary and proper.”

    What “:valid end” do you mean? Who decided it was valid?

    Where does Congress get the right to dominate commerce? Regulate yes, completely dominate no.

    It is irrelevant whether health care is 2%, 17%, or 45% of the national economy.

    Where does Congress get the right to go beyond “proper” regulation and simply takeover the entire process?

  • JSobieski

    If spending power is limited by the scope of regulatory power, the ability of the federal government to define/enforce rules in a government building are no greater than when a private entity owns the building.

    Government as owner has more authority then when government is merely a regualtor.

    Government as spender is just a specialized subset of government as owner.

  • wlcjr

    I don’t have a legal degree, but I can’t see how the Obamacare madate does not violate due process. It forces you to buy a product or pay a penalty w/o ascertaining you even need the product. After all, you can buy health care w/o insurance.

    And btw: is one big difference between a state requirement to purchase car insurance and this mandate. If you don’t drive you don’t have to buy insurance, the ascertation is made.

    The power to mandate may be found under the CC, but the way Obamacare is written it violates due process, and that is the way this might all go down.

  • http://www.examiner.com/x-1597-Charlotte-Law--Politics-Examiner Mike gamecock DeVine

    imho

  • http://www.examiner.com/x-1597-Charlotte-Law--Politics-Examiner Mike gamecock DeVine

    mandate any less unconstitutional since it requires citizens to make an affirmative act or be fined. That doesn’t fit under the taxing or spending clause. They could have made this a tax and been pretty safe, but they didn’t.

  • http://www.examiner.com/x-1597-Charlotte-Law--Politics-Examiner Mike gamecock DeVine

    I still think “provide” would not include that the government can mandate that one party into into a contract with another party.

  • http://www.examiner.com/x-1597-Charlotte-Law--Politics-Examiner Mike gamecock DeVine

    to make Social security and Medicare constitutional. Good stuff brother.

  • JSobieski

    I was merely arguing that “Public Welfare” is a justification for government SPENDING power, but not government REGULATORY power.

  • http://www.examiner.com/x-1597-Charlotte-Law--Politics-Examiner Mike gamecock DeVine

    that most of what we find anathema to Liberty is constitutional. They are bad ideas that must be defeated politically.

  • aesthete

    in that they allow us to see how the system was “sold” to the American public, and the auspices under which the government was to be run. Supreme Court decisions often cite the Federalist papers, as well as English common law.

    I am not a pure textualist — I don’t think that interpreting the Constitution using only “approved” documents of the period (like the Federalist papers) and the Constitution itself is sufficient for proper contextualization of Constitutional limits. Where there is sufficient ambiguity, early operation of government under the Constitution should serve as a guide. However, not even the Founding generation was not above subverting the Constitution — take the Alien and Sedition Acts, to use a famous example. Where the Constitution and its words, and those of contemporaries, contradicts practice of the government, the Constitution should win out — given that the power granted to said government originates with the Constitution. (Put another way, Constitutional government can be thought of as a function of an independent variable — the Constitution, which can only be modified by certain coefficients (amendments).)

    That said, while I think that quill raises great points (and references the Federalist paper I had in mind for this discussion), I think that this power is ambiguous enough, and JSob’s argument compelling enough, that we should look to the example of early American governance — which clearly shows that the “general welfare” clause was interpreted (until sometime around the middle of the so-called “Progressive Era”) to mean that spending on the “general welfare” was allowed, but not regulation of same.

  • aesthete

    covers issues with government as owner and such.

    However, I’m more convinced by the ambiguity of the text (JSob masterfully illustrates why above), and by the way in which general powers was construed by every Founding government.

    I think it’s a valid argument, and that there are good points on both sides, but for right now I’m more convinced by JSob and co.

  • aesthete

    is that spending was not an enormous power grant, when the federal government was constrained by having to rely on tariffs and other meager, indirect taxes to support itself. That is why Hamilton’s federal central bank and implied powers doctrine was much more controversial than his interpretation of the general welfare clause, and is one reason why it persisted as a political and Constitutional issue long after spending under general welfare had died out: while there was an upper limit on indirect taxation and tariffs that could be apportioned (and these could be avoided or subverted), a central bank provided essentially unlimited revenue* limited only by the political will to debase the currency.

    *So it was thought at the time; the seigniorage laffer curve proves that notion wrong.

  • aesthete

    It’s just a lump-sum transfer.

    Medicare — mostly, yes, but not the parts which compel something of private institutions in exchange for funds. Spending has to be specific (“earmarked”, even), uniform, and discrete, so as to avoid regulating the entities that government is spending money on and running into problems with the 10th.

  • http://www.examiner.com/x-1597-Charlotte-Law--Politics-Examiner Mike gamecock DeVine

    later

  • http://www.examiner.com/x-1597-Charlotte-Law--Politics-Examiner Mike gamecock DeVine

    more later

  • jaykali

    I obviously am an amateur but I would put money on the mandate thing getting struck down. Everything else is a complete mystery at the moment.

    I am very interested in the state medicaid thing tho bc that too seems to be violating state rights. It would be great if that could get struck down.