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Charles Fried: Yes, Government Can Make You Buy Broccoli

By: Ben Domenech (Diary)  |  February 2nd, 2011 at 01:26 PM  | 

RESIZE: AAA

In a classic example of “something that would’ve been more useful yesterday,” Senate Democrats today held a hearing in the Judiciary Committee on the constitutionality of the individual mandate. One of the guests was Charles Fried, a prominent Harvard Law professor. When Sen. Dick Durbin (D-IL) asked a question of Fried today about the so-called “broccoli mandate” hypothetical — which gets to the question of whether the government can regulate all forms of inactivity, and if so, what if anything is off-limits? — Fried shared an answer that was refreshingly blunt, as relayed by Avik Roy: (emphasis mine)

Sen. Durbin: The point raised by Senator Lee – the “buy your vegetables, eat your vegetables” point? I’d like you ask to comment on that because that is the one I’m hearing most often. By people who are saying “Well, if the government can require me to buy health insurance, can it require me to have a membership in a gym, or eat vegetables?” We’ve heard from Professor Dellinger on that point, would you like to comment?

Prof. Fried: Yes. We hear that quite a lot. It was put by Judge Vinson, and I think it was put by Professor Barnett in terms of eating your vegetables, and for reasons I set out in my testimony, that would be a violation of the 5th and the 14th Amendment, to force you to eat something. But to force you to pay for something? I don’t see why not. It may not be a good idea, but I don’t see why it’s unconstitutional.

Well, then that’s good to know. Obesity crisis, your days are numbered!

For a bit of context, Fried was generally considered a conservative legal thinker in the past, but in 2008 he openly supported Barack Obama over John McCain, citing Sarah Palin as the primary reason for his choice. So that gives you some perspective on where he’s coming from.

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COMMENTS

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  • John Steele
    • altexas

      John, I have never noticed or heard that quote from Sir Winston before. Love it.

  • romeg

    I can explain it quite simply: It is known as The Enumerate Powers Clause of the Constitution.

    Congress may exercise only those powers that are granted to it by the Constitution, and subject to explicit restrictions in the Bill of Rights and other protections found in the Constitutional text. The 10th Amendment states that all prerogatives not vested in the federal government nor prohibited of the states are reserved to the states and to the people, which means that the only prerogatives of the Congress (as well as the Executive Branch and the Judicial Branch) are limited to those explicitly stated in the Constitution.

    No penumbras or emanations here, except, of course, those of the liberal mind or what passes there for.

    Then, again, the Constitution is more than 100 years old. Maybe it’s out of date.

    • blooch

      with an Equine Hydration Limitation Clause….seems to be the basis for his legal reasoning.

    • bobbymike

      “I don’t see why not”. No Fried you dummy for Congress you ACTUALLY HAVE TO SEE IT in the Constitution.

      No wonder people “don’t understand the Constitution” with idiots like this is it any wonder?

  • http://locomotivebreath1901.blogspot.com/ locomotivebreath1901

    “…force you to pay for something? I don?t see why not.”

    Unless, of course, you’re one of the administration’s 700 deep pocket cronies who received exemptions.

    “I don’t see why not.”

  • corky

    …because of the Sarah Palin choice. She’s terrible.

    I was a McCainiac back in 2000 and continued to be until his 2008 campaign. Having to kowtow to the religious right, picking Palin to get “Hillary” votes, etc made me lose a lot of respect for ‘em..

    I DID ultimately vote for ‘em, but I wasn’t enthusiastic.

    • corky

      Just not necessarily for the Palin thing :)

    • http://www.hakubi.us/ Neil Stevens

      You’re the pro-Obama guy.

      See, we tend to oppose things like leaving babies to die of exposure, and state-run economies, that Obama had a record of in Illinois and the Senate.

      • corky

        You’re the guy that has problems with reading comprehension.

        Seriously, there a lots of Republicans that I’d vote for Obama over. That doesn’t mean I’m pro-Obama. Palin is definitely one of them.

        Or maybe you failed to read my last sentence saying I voted for McCain who…gasp…went up against Obama in the last election!

        I’m just anti idiots that strap an (R) next to their name. I certainly disagree with the majority of Obama’s policies, but I just think Palin is a disaster and our country would be worse off.

        • powertothepeople

          when you yourself are a huge idiot. And this is coming from one who has shown himself to not be a Palin fan in any way shape or form.

          But so that you do not leave not knowing why you are a huge idiot, let me explain.

          A) Personal attacks on a mod tend to be idiotic in nature making you an idiot.

          B) Accusing same mod of having reading comprehension problems when they call you a Pro Obama guy when you yourself have shown at least some level of support for Obama, shows you are an idiot of the highest caliber.

          C) You are an idiot simply because you state there is anyone you would vote for Obama over. In fact this statement makes you a moron as well.

          D) You are an idiot and a moron because you state Palin would be worse than Obama. I do not care for her all that much nor do I want to see her run, but on her worst day, she would be heads and shoulders above Obama. What it boils down to is, you are a POS who feels anyone with faith is below you and stupid. I have met trash like you and I would take being in a stadium of the staunchly religious before standing downwind of you.

          E) And just in case you missed my points above, you are an idiot and a moron who should never again in the lifetime claim they are anti idiot. That is sort of like an obese person being against beer bellies.

          Did I mention you are a moron……………….and on the wrong site?

          • corky

            nt

          • powertothepeople

            you are not enough of a person to ever make me mad. I just wanted you to understand, which I doubt you were able to, just how much of an idiot you are. As long as you tried to understand or do understand your position in life so described by me, then we are all good.

          • http://www.hakubi.us/ Neil Stevens
          • corky

            I thought Ben’s diary spoke for itself. Fried’s opinion is dangerous and we should be pushing this story as far and wide as possible so people realize what we’re up against.

            So I chose to comment on a minor part of the diary. What’s the big deal?

          • http://www.hakubi.us/ Neil Stevens

            Sounds like you were admitting you’re just here to get people mad, because your comments sure don’t seem to have much thought or sense behind them.

          • corky

            EXCEPT for that one.

            But, give me a break, man. Look @ what I was responding to…

          • http://www.hakubi.us/ Neil Stevens

            I put you and the regulars both on the scales. Your side came up light in the braincells.

          • corky

            “idiot idiot idiot idiot idiot moron idiot idiot moron moron idiot moron”

            Yeah…I’m sure you gave careful consideration to that one.

            Hey Neil….if you had a choice between Obama and Stalin, who would you choose?

            My guess is you’d choose Obama.

            Am I allowed to call you pro-Obama then?

            Cuz that’s exactly what you did.

          • aesthete

            one can show how Stalin would be worse than Obama.

            You haven’t shown how Palin would be worse than Obama.

          • corky

            The only thing I have to show is that voting for Obama over Palin does NOT mean one is pro-Obama.

            Just liking voting for Obama over Stalin does NOT mean one is pro-Obama.

          • aesthete

            Because if not, then your case is quite weak, as Palin most assuredly would have been better on issues like healthcare, Michelle O’s food nanny bill, the stimulii (McCain’s proposed stimulus was much smaller than B Obama’s, and Palin agreed with him), global warming, judges, etc. Moreover, if one is a believer in restrained government, gridlock would naturally prevent Mrs Palin from doing almost anything without being opposed by the Dems. Those are only a few ways that Palin would be better than the current administration, even if McCain had dropped dead two seconds after his hand left the Bible. The only critique of Palin that you’ve made defending the idea of voting Obama instead of Palin is that Palin is dumb, a critique as shallow as it is groundless.

            I never called you an Obama supporter — I merely pointed out how your analogy was flawed. However, I am remiss in not using a word that you’ve thrown about quite liberally here to describe the position that you hold described above: it is the mark of an ignorant, and is (here it comes) stupid.

          • corky

            I don’t feel like spending my night defending myself against 5-10 people. Sorry.

            I personally know a moderate voter who was so enraged about the Palin pick, that she immediately sent a donation to Obama. She KNEW McCain picked her solely because of her gender; it had NOTHING to do with her readiness to be president.

            Which is kind of ironic because I immediately donated to the McCain campaign after her convention speech. Even I fell under her the Palin spell initially, heh.

            So, my final point is: someone who may have supported Obama because of how horrible they thought Palin was, is not automatically a “fake conservative”, which is what Ben was implying in the original diary.

            Good night.

          • JSobieski

            There is NOTHING conservative about Obama. His record is clearly of the left.

            Palin my have blemishes from a conservative perspective, but she is definitely no leftist. Nor is person character unfit for office.

            Its interesting how you present ZERO analysis as to why Palin is so bad.

            Its also interesting how so much of the pro-Palin and anti-Palin comments are 100% devoid of any substance.

            If you have issues on which you think Obama is better than Palin, feel free to share those with us. Otherwise, its hard to take you seriously.

          • JSobieski

            I should point out that your argument so far has 0% substance.

            Palin would have been a better President than the other 3 people in 2008. That isn’t saying much, but it is true.

          • edwlstr

            will relieve you of the necessity of defending yourself against 5-10 people. Give it a try. Your final point appears to be, to me at least, that socialism is preferrable to conservatism? TROLL

          • JSobieski

            Providing evidence (i.e. showing) is what happens after one makes an argument.

            This guy can’t even provide a rationale.

            Further evidence that conservation about Palin, whether pro or con, tends to be content free zone.

          • gekster

            To him Palin is an idiot.
            Thats all he’s got.

          • http://www.hakubi.us/ Neil Stevens

            That’ll do it.

          • David123

            Sarah Palin is smarter than Obama and EVERY other leftist in America.
            Why?
            1. She knows America is a great country
            2. She knows free enterprise is better than socialism

            This is 2011, not 1900 or some other year in the distant past – and the evidence is in – on socialism.

            Case study 1. Korea: North Korea socialistic and seriously messed up; South Korea has freedom and prosperity
            Case study 2: Germany: East Germany was socialistic and seriously messed up until the Germans wised up and reunited, creating a unified country with freedom.

            Obama was mentored by a communist and associated with communist-loving Bill Ayers. Obama does not get how seriously messed up socialism is – not very smart of him, since there is plenty of evidence that socialism doesn’t work.

            Can’t understand why you’d consider Obama better or smarter than Palin. If the Republicans don’t nominate Palin, but instead nominate Bozo the clown, Bozo will definitely be getting my vote.

          • gekster

            but you have been quite amussing.
            Please, go on.
            Next, tell me about the Palin/Biden debat, will you.

        • 54caliber

          are a liberal with no core values and you will go with whomever will give the most goodies.

      • corky

        Because calling me a “pro-Obama guy” is worse than saying you have reading comprehension issues.

        Think about it. I’ll retract if you do.

    • aesthete

      Sarah Palin would do worse than Barack Obama?

      • corky

        This thread shouldn’t be about Palin, but she’s just not that smart. Her speeches are red meat to conservatives, but I doubt she’s come up with any smart policy ideas of her own.

        I think she’s living the American Dream right now, using her VP-nominee fame to cash in for herself and her family. If she can fire up people to vote out Democrats and Republican squishes, then I’ll gladly have her as an ally.

        But no way in hell do I want her as my president.

        I really hope Romney gets his chance this time around. Competent businessman. Conservative enough for my tastes.

        • aesthete

          The President is surrounded by intelligent people; people much more intelligent than you and I. Even more human capital is available at the President’s beck and call. The WH does not suffer from a dearth of intelligence of ideas; it suffers from a lack of good management and a lack of boundaries, both self imposed and otherwise. I’m not Palin’s #1 fan on RS, but what, specifically, would she do worse than B Obama, judging from her stated policy stance or time as AK’s governor?

          • earlgrey

            “The Big Bang Theory” running the country. Sure they are smart, but not suitable for public office.

          • corky

            But it’s not a disqualifier.

            Being stupid is.

            Just sayin’.

          • earlgrey

            I just get my fill of everyone talking about how smart Obama is and how smart Hillary was, and of course the unrelenting argument from most liberals that conservatives are poorly educated, stupid.

            it is basically a playground argument dressed up to give it some credibility when they really have no point to make. After all, if they were so smart than they could say something other than conservatives are stupid, fat, lazy. I have seen that on so many blogs has worn thin with me.

          • corky

            I’d like to think of myself as a really smart conservative :)

            Sarah Palin is good @ being a polemicist. She was picked as a running mate because she was a woman with (little) executive experience. She served half a term as governor and quit the job to ride the wave of money and celebrity.

            Basically, she hasn’t shown me anything to be in the discussion for a run in 2012 and it really scares me that she could be the nominee.

            So, back to the original point, the fact that Palin was an (old) heartbeat away from the presidency could have been a very valid argument w/r/t not voting for McCain.

          • davesinsanantonio

            reason to vote for Obama over Palin!!!????????? Give me a break!!!!!

          • corky

            Yet has no recipes for getting this country back on track.

            Just railing against Obama is not a solution.

            Frankly, we’ve been a little light on solutions on our side. I hope Boehner spends some more time proposing solutions rather than trying to undo HCR. He won’t get anywhere over the filibuster; the courts will have to take care of that for us.

          • aesthete

            Relative to what? The Democrats have made a point of talking about “angry conservatives” and the like rather than their own “solutions” for quite some time, and that has not changed with B Obama’s election. Just as important, solutions to what? This country has had quite enough of “solutions” to domestic issues which would resolve themselves in the private sector given time.

            John Boehner is execrable, but far from the best we have to offer: Paul Ryan, Mitch Daniels, T-Paw, Chris Christie, Mike Pence, Jim DeMint, and other conservatives have been more than willing to talk ideas and solutions. The decline of conservative intelligence is greatly exaggerated: in truth, while I much prefer a George Will to an Michael Savage, politics has simply never been the place to go for elevated discourse, and most of the groundwork for conservative political philosophy (such as it is) has already been pioneered by Kirk, Buckley, and others.

          • corky

            They’re terrible, but they’ve offered ‘em.

            Heck, they even sold HCR as a way to decrease the deficit!

            I have faith that many of the people you mention will be heard. I just wish we’d stop fighting the HCR battle (on the legislative side) and worked on passing stuff like “Hang the Bankers that Caused This Mess” act and stuff.

            I also disagree that the free market is a solution to this…IMHO, the free market actually caused this!

          • davesinsanantonio

            the history of the politicians keeping us from having a real free market for decades. The Dems do not offer solutions, they offer problems disguised as solutions. Nearly everything they offer has been tried, here or elsewhere, and has come up a dismal failure that has caused more misery and destruction than what they were supposedly trying to fix!
            Get your head out before you start typing, I am not sure if you suffer from ignorance or stupidity, But, ignorance is curable. Please take the cure before you post again.

          • Tbone

            I think you mean “You”.

    • romeg

      Just what does Sarah Palin and John McCain’s failed presidential run have to do with this thread?

      • corky

        “For a bit of context, Fried was generally considered a conservative legal thinker in the past, but in 2008 he openly supported Barack Obama over John McCain, citing Sarah Palin as the primary reason for his choice. So that gives you some perspective on where he?s coming from.”

        My point is that I don’t think Ben is right w/r/t the “perspective” he and I got from that sentence.

        • romeg

          on which Fried had held forth at sometime in his life that should also be discussed here?

          • corky

            I commented on two things Ben wrote in his diary. I think you’re overreacting a bit.

          • romeg

            I see (and have read and re-read) the main part of the piece and I see (and followed the links) to the aside referring to Fried’s support of Obama and alluding to McCain’s choice of Palin as his runing mate as his rationale for so doing.

            But one has to have an enormous running start to span the chasm created by an aside that calls Fried’s ‘Conservative Thinker’ bona fides into serious question and Palin’s intellect. I fail to see how you can defend that Herculean leap.

            What I do see is a lame rationalization by you to engage in an ad hominem attack on Palin because you prefer Romney as a candidate in the next presidential election. An attack, I might add, that is based purely on invective and vitriol (“she’s an idiot”)rather than on any basis in fact or reality.

            This thread has NOTHING whatsoever to do Palin. It has to do with Fried and his utterly bankrupt and intellectually vacuous defense of the attempt by Congress to compel individuals to engage in some sort of commercial transaction so that Congress may then exercise its presumed authority under the Commerce Clause to regulate that transaction.

            How someone who thinks and writes the kind of crap that Fried has produced on this topic ever achieved status as “…a serious conservative writer and thinker…” escapes me. I haven’t read all of his work but nothing I have read supports such an assertion. He is a liberal Harvard Law Professor (redundancy upon redundancy) driven by White Guilt to support a candidate that is the least qualified person ever to seek the office other than, perhaps, Dennis Kucinich let alone actually hold it.

            That YOU choose this thread to attack Palin and, somehow, seek to defend doing so because of an oblique reference to Fried’s vote against McCain BECAUSE OF his choice of Palin is, simply, moronic.

          • corky

            For the more in-depth reasoning I wrote above.

            Ben questioned Fried’s bonafides because of his vote in the 2008 election. I pushed back on it because I didn’t think his vote was necessarily a disquallifier. Not very hard to understand…

          • romeg

            Again, this thread isn’t/wasn’t about Palin.

            Ben’s reference to Fried’s vote and rationale there for was about Fried, not Palin.

          • corky

            I did not like Palin.

            QED I can understand why someone would vote for Obama because of Palin.

            I’m sorry I can’t make that any simpler for you.

            Maybe you could ask Ben why he mentioned Palin if this story wasn’t about Palin? He started it, not I.

            In fact, my 2nd post about Palin was:

            “This thread shouldn?t be about Palin”

            Yet you people keep bringing it up. It’s kind of boring, actually.

          • gekster

            Made at 2:19pm. You were the first one to mention Palin.

            “I actually don’t see a problem with voting for Obama
            ?because of the Sarah Palin choice. She?s terrible.”

            It’s near the top.

          • corky

            Did you even READ the diary?

            How could I have been the first person to mention Palin…

            WHEN THE DIARY I RESPONDED MENTIONED PALIN ALREADY????

          • gekster
          • gekster

            You were the first one to POST about Palin.
            If calling people names makes yo feel big, then by all meens go ahead.

            Ahh, llorts, they are so much fun. ;)

          • corky

            Sorry, I can’t argue with people who don’t deal in facts. Here’s my last response to you so please try to follow:

            My quote: Maybe you could ask Ben why he mentioned Palin if this story wasn?t about Palin? He started it, not I.

            Your quote: You were the first one to mention Palin.

            My quote: How could I have been the first person to mention Palin? WHEN THE DIARY I RESPONDED MENTIONED PALIN ALREADY????

            Your quote: You were the first one to POST about Palin.

            I mean…dude. The first rule of holes is to quit digging.

          • romeg

            You declare that the thread isn’t about Palin and make virtually every word you posted here today about UM, PALIN!

            Nothing you’ve posted actually supports anything more than the fact that ALL of your “facts” about Palin appear to have come from some utterly unhinged left wing blog.

            The single valid criticism you make of her is her decision to leave office mid-term. But your charges of “stupidity” and “idiot” simply are not supported by any facts you present or, for that matter, available elsewhere.

            There are plenty of places and opportunities to attack Palin. You should confine you anti-Palin screeds to those and try to stick to the actual topic at hand.

          • corky

            I didn’t think my drive-by posting would garner this much attention and rage.

            I even re-commented after the fact stating my opinion on the main point of the diary. But everyone seems to be ignoring that.

            Because they see someone criticizing a conservative and feel the need to pull the ranks together.

            I originally just called her “terrible” and explained why…more so out of my loss of respect for McCain and not so much about her.

            Then I have a contributor calling me “pro-Obama”.

            How can I avoid talking about her if I have to defend myself against these charges?

          • gekster

            what else you got.
            The term idiot is in the eye of the beholder,
            just as some might think you are intelligent.

    • kpbenware

      It is quite clear that ‘corky’ has hijacked this thread, and that ‘powertothepeople’ and ‘Neil Stevens’, in their repeated debate with the first hijacker, have become accessories to him. Thanks a LOT gentlemen.

      Are the three of you working together to derail the topic, or are powertothepeople and Neil Stevens so weak minded as to be suckered in by a troll?

      Come on gentlemen, if I may be so bold as to refer to you that way, please try to stick to the topic at hand. That being, Charles Fried is a liberal hack.

      • powertothepeople

        Funny you feel that after less than a dozen comments you can come to the site, tell longer established members and a mod how they should post. How about you learn a little more about the site and a bit more respect before posting an admonishment again. Sound good? Take the advice, tuck your tail, and move on. It is the best site advice you will get for some time to come.

        • edwlstr

          for posting now?

          • gekster

            He’s just a pain in the rear.
            Stick in butt thing, ya know. ;)

          • gekster

            Thats for you and not for him.
            He’s been here a couple of weeks or more and has been a big PAIN.

          • powertothepeople

            you really have no clue about most of what you speak about do you?

            And if you need help getting someone to love you, I will be more than happy to pa for your first month of a dating service. I would really like you to be happy so you do not feel the need to stalk. But if that is what makes you happy, by all means, carry on.

          • gekster

            acouple of months, since late November or early December.
            But you diatribes seam to go on forever.

            Definition for diatribe
            - bitter criticism: a bitter verbal or written attack on somebody or something
            It fits you well.

            Old people do get that way.

          • powertothepeople

            I would hate to think the best thing you have in your life is following me around. Count yourself important as I enjoy speciallist because he is quite easy to irritate so it makes it enjoyable for me. Find a dating service and I will pay your first month as I want all republicans to be happy and have a full life. In case you are currently married or dating, little piece of advice. Spend more time with her as you are wasting your time with me as you really never take the time to review the entire conversation, you simply butt in. This means you are fixated on me and that is not healthy. I can add you to the short list of those I enjoy irritating or you can move on and get a life. Either way is fine with me, but if you are that lonely and want the loneliness to end, I will pay the first month so you can meet some new friends. Now if you are just interested in being my personal mentor, just say it and I will act as if I am listening.

          • gekster

            you are just so full of your self.
            You are quite ammussing.
            Please go on.
            I await more of your wisdom.

          • kpbenware

            in ‘powertothepeople’s own comments, he has proven the point I made earlier.

            He and his kind have a need to turn every conversation into a boasting point for themselves, and always have to try to bash the people who disagree with them and call them on it. For this person to become so hostile over a factual observation, my observation must indeed have been true, at least about ‘powertothepeople’. He did, in fact, hijack the thread.

            He has proven this because he is attempting to chastise me for challenging authority that he does not have, and feels compelled to defend himself for doing something that he would most definitely admonish others for- thread hijacking.

            It does not matter how long I have been commenting here, or how many comments I make. He personally would make an attempt to restrict my right to speak freely in this forum. It is not I who should “tuck my tail, and move on”, but he. He is the one who needed to make an attempt to ‘chase me off’, because he personally does not want to see/hear/read what I have to say.

            Sir, if you do not like what I write, simply do not bother to read what I say. Aside that, YOU need to be a little more respectful to your peers here. That is correct; PEERS. We are all equal here, and you have no so-called seniority that gives you greater rights than anyone else.

  • http://pocketchangeproductions.net/ anotherindyfilmguy

    Then the government has passed beyond the role of useful tool for everyone and into the role of tyrant. The health care takeover is government in the role of tyrant.

    Resistance to tyranny is what again?

  • http://theminorityreportblog.com Repair_Man_Jack
  • Locked and Loaded

    Prominent Harvard Law professor = Dang fool idiot

    • The_Gadfly

      I expect most of us have more respect for Dang fool idiots than we do for any Ivy League law professors.

  • swami7774

    He was appointed by Bill Weld. I don’t recall Fried being anything but a non-partisan judge. I certainly don’t remember him issuing statements as wacky as this one.

    • profnickd67

      but totalitarian.

      • swami7774

        Strange words from an accomplished judge.

  • http://www.scragged.com petrarch

    …based on the past 80 years of Supreme Court judgments.

    Of course, that just goes to show that the last 80 years of Supreme Court judgments are themselves mostly unconstitutional, but fixing that is not gonna be accomplished by passing one bill.

  • fpete13527

    Fried consulted these two, who epitomize the highest quality levels of legal knowledge in the country. These two are among his highest heroes and he only hopes he can set an example like them.

    http://bit.ly/9x8OFI
    http://bit.ly/cVm9fb

  • nycenterright

    If you don’t buy a house or have kids, what’s the difference?

    • nycenterright

      I don’t see where the constitution distinguishes between the mortgage deduction being constitutional and the IM being unconstitutional. I think it’s probably both or neither.

      • http://theminorityreportblog.com Repair_Man_Jack

        This is probably pulling fly crap out of pepper, but the IM is technically an additional tax added on for not pursuing a course of action, whereas the the mortgage intrest deduction and the tax allowances are both incentives for engaging in a behavior.

        In other words, the IM tax penalizes me for a choice of inactivity, while the deuctions you cited above reward me for deciding to pursue a course of action.

        • nycenterright

          The problem is that I don’t see where the constitution authorizes one, while forbidding the other.

          Put another way, can you show me where the constitution authorizes the mortgage deduction (in which the Federal Government taxes you less if you have done something), and explain why that section does NOT authorize the individual mandate (in which the Federal Government taxes you more if you have not done something).

          • http://theminorityreportblog.com Repair_Man_Jack

            Level of enforcement – The government now has to track you and determine whether you are enrolled in a politically correct plan. It has to force you chose this against your own free will. It charges you money for not doing so, regardless of the fact that by not doing so, you harm no one other than a government bureauocracy.

            Unlawful Taking – If the government either gives you money for choosing of your own accord to engage in a course of action or does not give you money when you remain in stasis, they are at no point actually taking anything. This makes compliance w/ the Bill of Rights a much easier issue to finesse.

            American Constitutional Jurisprudence is based upon the restarint of Federal Action. Making laws that cause the government to start aggressively medalling in everyone’s life is a harder thing to do. Unfortunately, it isn’t hard enough.

          • nycenterright

            Regarding point 1, I agree, but I still don’t see how that’s different than the mortgage rate deduction.

            Regarding point 2, I think that’s the point where the Supreme Court will have to make its decision. Is “I don’t have to pay more” the same thing as “I get to pay less”?

            I think the fact that the Obama people defended the IM specifically as a tax when arguing for its constitutionality will play a big role. If the Federal Government can tax you less for doing something, can they tax you more for not doing something? And are those fundamentally different? I don’t know that there is a clear answer.

          • http://theminorityreportblog.com Repair_Man_Jack

            >>>Is ?I don?t have to pay more? the same thing as ?I get to pay less??

            Scenario 1A – I choose to buy a house via a mortgage. I get a deduction. No cops show up at my door.

            Scenario 1B – I choose not to buy a house via a mortgage (pay cash or rent). I get no deduction. No cops at the door.

            Scenario 2A – I choose to enroll in O-Care. It costs arm, leg, 1ea. No cops show up.

            Scenario 2B – I choose to carry no health insurance. I get told to pay up or rot in jail for 2 years. In other words, I go w/ scenario 2A or I go to Michael Vick’s old Neighborhood. I am being ordered, against my will, to pay a large sum of money for something that I have no desire for. That, right there, is the Constitutional Issue. And no, it’s not a tax in the moral sense that it is designed to control my behavior, rather than raise reveneues for the necessary and essential functions of state.

          • nycenterright

            Scenario 1A – I choose to buy a house via mortgage. It’s expensive, but a good thing to have.

            Scenario 1B – I choose to deal with shelter some other way. I have to pay more in taxes than I did in scenario 1A. If I do not pay the extra taxes, off I go to jail.

            Scenario 2A – I choose to buy health insurance. It’s expensive, but a good thing to have.

            Scenario 2B – I choose to deal with the costs of injury or illness some other way. I have to pay more in taxes than I did in scenario 2A. If I do not pay the extra taxes, of I go to jail.

          • http://theminorityreportblog.com Repair_Man_Jack

            There is no way, in buying a house, or renting, that you can possibly be sentenced to two years in prison for doing nothing out of the ordinary. Your taxes are not increased by judicial fiat in Scenario 1B. They are only reduced in Secenario 1A by your volitional decision. You are being enticed, or if you really hate realtors “bribed.”

            In Scenario 2B you are getting told to “play or pay.” You are being coerced to do something that you may or may not have otherwise done. Or I guess “advised” if you write speeches for either Harry Reid or Nancy Pelosi. You are also being looked up and punished for not doing so.

            And also, in scenario 1A/1B, nobody gets put in the can for not being able to afford housing. If you can’t afford to pay the fine, than you can fire your employees until the fine shrinks or as an individual, hope you get someone in the top 5% of court appointed attorneys.

          • JSobieski

            The ability of government to give a tax deducton for having something is clearly constitutional (or the mortgage deduction would go down with it).

            The distinction between penalty vs. tax with a credit as an offset is merky.

            2 questions:
            (1) IF clearly structured as a tax increase (the penalty amount) and an offsetting credit for those who have insurance, would you still say its unconstitutional?
            (2) Does form over substance matter? If so why?

            OK, its really 3 questions.

          • http://theminorityreportblog.com Repair_Man_Jack

            The distinction between penalty vs tax w/credit is the distinction between the entitlement culture and authoritarian fascism. I’m still not sure it would be constitutional. I’m not sure a lot of tax breaks are either, now that I’ve given this more thought. I tend to believe a system of taxation should neither bribe nor coerce citizen behavior. It exists to fund necessary societal functions of the government…

            All that being proferred, the coercian element scares me. It ‘s a one-way ticket to fascism. If the difference between enticement and coercion is somehow legally murky, maybe Sinclair Lewis had a point with his sarcastic book title It Can’t Happen here.

            As for form and substance, I think they matter equally. People should not be able to lie about what a law is. It should be the same thing in court that it is in front of a judge. I view legislative form as a statement of constitutional intent on the part of the legislature passing the act in question. If they had meant it as a tax, they should have said so explicitly. If they had meant it to be a rhudabaga, they should have made an equally definitive declaration in that direction. By not letting the legislature play these sorts of semantic games, we narrow their channel by whicht hey can attack our fundamental rights as citizens….

          • JSobieski

            So he would say that what Obama or anyone else said about Obamacare during the legislative process is irrelevant.

            Our system of taxation does coerce and entice people. We charge higher taxes than what we need so that we can get credits back for doing what the government wants. It is not clear to me that the Obamacare provision is substantively different than that.

          • earlgrey

            It is not home ownership, it is that you have to actually go into debt in order to get the tax deduciton (I don’t know if that makes a difference). Also, doesn’t the amount you can deduct depend on what you pay in mortgage interest, how much you make. etc.

            Plus the federal government isn’t telling you what house to buy. In this case they are telling you you have to buy a certain type of policy. I don’t know how you get around that.

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

            called the individual mandate a tax from the gitgo and only enforced it thru thru the tax code, it would have been constitutional. But the dems didn’t think they could get it passed calling it a tax!

          • JSobieski

            In other contexts, Scalia has stated that he doesn’t care about the legislative history of a statute–i.e. what the politicians said while they were making the law. Given that well established principle, Scalia is either going to have to eat some crow on a long standing practice or address the mortgage deduction comparison through some other way.

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

            to be accurately called a tax. I wrote a column on the mechanics of that at the time.

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

            that if they had made the mandate enforceable ONLY via taking from tax credits/deductions/refunds, they might have been able to make it fly under the tax code.

          • earlgrey

            now I see things more that there really is no difference between tax breaks and the Obamacare Mandate. The only difference I see is that the Federal Governmetn is demanding that each person buy a product that they designed and they control. That is different with a mortgage (or at least it used to be).

            It concerns me that people are so excited by this ruling from Florida. I am not sure that it really means all that much.

    • davesinsanantonio

      nt

      • nycenterright

        You have to buy health insurance OR PAY MORE IN TAXES. If you don’t buy a house, you don’t get the deduction, so you have to pay more in taxes. If you don’t buy health insurance, you have to pay the extra fee, so you have to pay more in taxes.

        • JSobieski

          However, I also acknowledge that I don’t understand tax law enough to say that a per head tax is constitutional.

          Lets say for the point of simplicity that Obamacare penalty is $2000.

          So they are arguing that your income tax is whatever the rate X income calculatons turn out to be plus $2000. That $2000 is credited back to you if you have insurance.

          Can Congress just increase your taxes by $2000 like that? Is it really an income tax if it isn’t really based on your income? Does it matter that the $2000 was implemented by changing the rate tables and income tiers to bake the $2000 into the normal income tax calculation.

          I am not sure. I have heard other people say no, but I don’t understand why.

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

            section 9 of Art 1, which was repealed by 16th amdnment

        • annplato

          you can make deductions if you BUY a house IF your income is large enough to warrant itemized deductions.

          Paying a “tax” for NOT buying something cannot be likened to a “tax”, but ONLY a penalty for inactivity. That IS unprecedented and unconstitutional, as Judge Vinson said. If the federal government can get away with it, then next could be a penalty for NOT eating broccoli!

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

            and only the people without coverage miss out on the offsetting credit.

            For a second, take a step back from the specifics of Obamacare, and evision the following:

            (1) Everyone’s taxes are increased by $X
            (2) In the same statute that accomplishes (1), a tax credit of $X is added if you have health insurance.

            The net impact is the same. This scenario is not substantively different than Obamacare/

            (A) Do you argue that the situation above is unconstitutional?

            (B) If not, and you still think Obamacare is unconstitutional, aren’t you engaging in a form over substance analysis?

            My answer to A is that the hypo above is NOT unconstitutional

            In terms of (B), I think the Obamacare should have been more clear and less “hidden” but I also know that the phrase “form over substance” in tax law favors the substance not the form.

            This issue illustrates perfectly why capitation based taxation is an atrocity—because it just invites nanny state interventionism.

  • generalgrant

    He did say that believing the mandate was constitutional under the Commerce Clause was a “no-brainer.” Professor Fried is a smart man, and surely has a brain, but he’s absolutely right that those without brains would surely believe that.

  • dmccracken

    And I have a question. How are we defining smart? People who are well-read, educated, etc. may be learned, but if they cannot observe and process new information, adapting and even changing there ideas based on new information, then I wouldn’t necessarily call them “smart”. Isn’t that the liberal disease?

    To bring this on-topic, are we saying Fried is “Learned” or “Intelligent”? You can be both, but they are two different things.

    • myron_j_poltroonian

      There’d Be More Of It.” – M.J.Poltroonian

    • sccrenny

      intelligent but not learned, intelligent AND learned, learned and/or intelligent but not smart, can be all of the above but not wise, can be none of the above but be wise. IMHO the common denominator which determines each of the above states is strength of moral fiber. Many of the wisest people I know of fall into the last category- not exceptionally intelligent, learned, or smart but guided by what is morally right.

      The government in all branches is overly blessed by intelligent, learned, smart people and woefully bereft of moral people.

      • myron_j_poltroonian