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Michele Bachmann’s Constitutional Ignorance

By: Leon H. Wolf (Diary)  |  September 13th, 2011 at 12:53 AM  | 

RESIZE: AAA

Having hit Romney on his ridiculous and contemptible Mediscare flier earlier today, I am now forced to defend him (sort of) from a completely ignorant attack from Michele Bachmann. In discussing the repeal of Obamacare (which is something I think almost all Republicans support), Bachmann claimed erroneously that there was no difference between the constitutionality of Obamacare and the constitutionality of Romneycare:

Plus, no state has the constitutional right to force a person as a condition of citizenship to buy a product or service against their will. It’s unconstitutional…

(APPLAUSE)

… whether it’s the state government or whether it’s the federal government. The only way to eradicate Obamacare is to pull it out by the root and branch to fully repeal it. It’s the only way we’re going to get rid of it.

** SNIP **

Why? I just have to say this. It’s because President Obama embedded $105,464,000,000 in Obamacare in post-dated checks to implement this bill. We are never going to get rid of it unless we have a president committed to getting rid of it. And if you believe that states can have it and that it’s constitutional, you’re not committed. If you’ve implemented this in your state, you’re not committed. I’m committed to repealing Obamacare.

Michele Bachmann claimed during the course of the debate to be a lawyer, and she likes to talk about how much she loves the Constitution. It therefore baffles me that she has no apparent grasp of the very clear distinction outlined in the Constitution between the powers granted to the states and the powers granted to the federal government. According to the Tenth Amendment and centuries of constitutional precedent, states governments have inherent powers, subject only to the express limits placed upon them by the Constitution. The federal government, on the other hand, is a government of enumerated powers. What that means – as any first year law student or person of ordinary common sense can tell you – is that when asking whether a State has the authority to do X, you ask whether the constitution forbids it, and when asking whether the Federal government has the authority to do X, you ask whether the constitution authorizes it.

The entire argument for the unconstitutionality of Obamacare is that nothing in Article I permits the Federal government to mandate the purchase of insurance. On the other hand, the notion that States can compel the purchase of insurance is completely noncontroversial. States mandate the purchase of all kinds of insurance upon all kinds of their residents – the most common form of this with which people are familiar is compulsory liability insurance for automobiles. For Michele Bachmann to claim that there is no difference in the constitutionality of mandatory health insurance compelled by a State and mandatory health insurance compelled by the Federal government is either ignorance on display or dishonest pandering.

Now, as I said, this is only sort of a defense of Romney. Just because Romneycare is constitutional does not mean that it is a good idea; in fact, I think it is a spectacularly bad one. As I have explained before, Romneycare is easily Romney’s greatest electoral liability and his failure to distance himself from it will probably doom his candidacy. But claiming that everything that is a bad idea is also unconstitutional is a classic liberal tactic and Bachmann should have avoided the temptation to do so tonight.

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  • Danielle Davis (ocleverone)

    I assume that Michele is savvy enough, well read enough to understand the differences between federal and state mandated programs.

    That leaves me with pandering. Which I hope it’s not, she should be better than that.

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

      nt

    • perry4prez

      I like Michele Bachmann but she lost some goodwill tonight. It is as if she immediately abandoned her Tea Party principles the moment things got tough. We cannot afford entitlement after entitlement because we’re BROKE – but how can we count on Bachmann/Romney to attack Obamacare if they’re on record as supporting all the other entitlements,including Prescription Drugs?

      • gmscan

        Republicans, just as much as Democrats, need to be schooled in the Constitutional differences between state and federal powers. I vehemently opposed RomneyCare, but no one (who is serious) ever claimed it was unconstitutional.

    • Jim Tomasik

      jlt

  • acat

    that the 10th amendment defense of Romneycare, that is, that Romneycare is at the State level so is not a Federal matter, goes right over peoples’ heads…

    Anyone whose ideas of how government works comes from a public school civics class may be forgiven for being fuzzy on this defense … perhaps Bachmann is banking on that fuzz to hit Romney.

    Sad to see. I’ll continue to hope she quits soon and announces for Senate.

    Mew

    • onemovoter

      Bachmann was running fast and loose with the facts tonight. I know it’s just a tick of mine, but I would rather be correct than trying to pander to folks.

      I’ve got this bad taste in my mouth after watching Bachmann tonight during and after the debate.

      I also lost what respect I had for Palin after watching her on Gretta tonight. I don’t mind calling out people on corruption, IF you have the facts, but she piled on the conspiracy with the Gardasil issue. If she was as clean as Jesus is, and just said hey, it’s an issue that needs to be checked into so everyone knows what the real deal is, then I would have respect for her.

      PS. Leon – You should also comment on Bachmann’s comments on the Gardasil issue. I think she’ll have to walk back several of them or lose even more credibility.

    • perry4prez

      Leaders are supposed to LEAD, aren’t they? And what is so hard to understand about “you’ll keep more of your paycheck for yourself”?

  • http://twitter.com/TJexcite tjexcite

    For how progressives have worked on the federal level for the last 100 years, many of the States mandate that have been worked in to the life are not allowed in the state constitutions but are there none the less.

    They may have mandates but when they wrote the state constitutions the idea a mandates was not a way of life and when the auto insurance mandate was first put in, the idea that it was against some constitution was not thought of. That was the time people thought government only does things it is allowed to do so the mandates must be allowed. So the people did not challenge it when the first model T came off the line and a bill from the state capital was soon to follow.

    The progressive era has done a lot of things that seem normal now but if you go back they where never to be or could be normal. Mandates on any level may be one of them as there are 50 different state constitutions written at many different times and can changed in many different ways. Some state may have it allowed and some don?t, yet still have mandates that are unconstitutional.

  • gt80

    “States mandate the purchase of all kinds of insurance upon all kinds of their residents ? the most common form of this with which people are familiar is compulsory liability insurance for automobiles.”

    Wow Leon, Obama himself could have written this. Driving is a choice, and thus buying the automobile insurance is a choice.

    I’m really curious to see if a critical article of Rick Perry will ever make Redstate’s front page.

    • Leon H. Wolf

      Driving is a choice. So what? YOu still don’t want car insurance and the state forces you to purchase it.

      The reason I sound like Obama to you is that like Michele Bachmann, you’re incapable of actually understanding the point of Art. I, Sec. 8 in conjunction with the 10th Amendment.

    • APA Guy

      Karl Marx believed that the future of American capitalism consisted of herding workers into cities so they would be proximal to their place of work – thus allowing them to work more hours for less money.

      2011 America is a somewhat different place. I live in Indiana, where small towns would be abandoned were we to subscribe to your line of thought due to the fact that small towns can’t possibly employ each and every able-bodied working adult living in them. 8 out of 10 working friends and family within my orbit drive from a small town to a larger town/city to work lest their families starve. Unless you only want 50-60% of the able-bodied adult population to work, driving is a NECESSITY, not a choice.

      Now, you can argue that people financing their vehicles must be required to provide SOME form of surety (i.e. full-coverage insurance, money held in trust, etc.), but when I OWN the vehicle, I shouldn’t be required to insure it…and it isn’t the government’s job (state, federal or otherwise) to ascertain whether I have the resources to pay for any accidents I may cause. If you believe in constitutional freedom and liberties, you wouldn’t FORCE anyone to purchase insurance on something they own outright…period.

      • Leon H. Wolf

        The point is, what in the constitution prohibits a State from forcing you to buy health insurance? I see nothing in the text of the constitution that even comes close, and I am not aware of any precedent which would even suggest that it is.

        I can easily point to where Obamacare is unconstitutional – Congress only has the powers outlined in Art. 1 section 8, and Obamacare exceeds the grant of authority contained therein. But since we’re talking about a State, it’s a completely different question.

        THe reality is that States can constitutionally do all sorts of odious things to you that the Federal government could do, and are practically restrained from doing those things only by the wrath of the voters in that State.

        • APA Guy

          …that a state can impede my path to prosperity in lieu of the federal government.

          Right now, unless I move to NH (…and I just might! No state income or sales taxes there either), I am forced to purchase insurance on an automobile I already own. At $30/month, 12 months a year for 50 years, that’s $18,000 I could have shuttled into silver or the local economy.

          I understand the constitutional wiggle room you’re speaking of. I just think it strains liberty to require I purchase ANY insurance on something I own simply because the government presumes to know what I will or will not pay should I cause an accident.

          • Leon H. Wolf

            And should encourage you to remain engaged and active in the election of your state legislators. Even though they get less press than their federal counterparts, they have the ability to screw you much worse.

  • drfredc

    The problem with the notion that States can compel folks to buy something (like healthcare insurance) is this provides a clear path (under typical statist gobbygook thought) for the federal government to end up compelling individuals to buy most anything the Federal Government wants. All that is needed is for the Federal Government to somehow twist the arm of States to impose these rules at the State level or else you don’t get some federal goody handouts that you get for complying with the Federal “Guidelines”.

    Obamacare comes pretty darn close to imposing it’s individual mandate in this fashion. If the Supremes do toss out the individual mandate, but allow the rest of Obamacare to stand, it will probably take less than a week to for some ‘progressives’ to devise a Federally defined system to compel States to impose an individual individual mandate workaround to a naked federal individual mandate. And some RINOs will sign on — Obamacare continues into the future.

    IMHO, the proper perspective is individuals are granted certain freedoms by the Constitution and Bill of Rights. There is nothing in the Constitution that permits any form or level of government (federal or otherwise) to compel folks to buy a product, this right is retained by the people. The proper role for government of any level in this respect it to PROMOTE the general welfare, not provide it (by force).

    • oldbird77

      We should end the practice of the Federal Government collecting a bunch of tax money and then sending it back to the states with a bunch of strings attached. Lower Federal responsibilities and taxes and send those things like intra-state transportation projects, education, etc back to the states. Let the states raise taxes/revenues as they see fit to fund their own spending priorities. Then the Federal Government won’t be able to bribe the states into compliance on extra-constitutional mandates on things like speed limits and education programs anymore.

    • runner12

      NT

  • iwasbornwithit

    Are superior to Bachmann on her 10th Amendment analysis of Romneycare, but I have been waiting for someone to tear down Mitt’s dissembling and technical defense of it. Ok, we get it…there is a difference between state vs federal mandate. But why does he support any govt entity forcing its citizens to purchase health insurance? And how well do you think this distinction in a general election will fly when he will be running on repealing Obamacare? I suspect that this argument will go over 90% of American’s heads. And why can’t redstate bring itself to support bachmann? What has she done other than be reliably conservative as opposed to perry and romney?

  • Addison

    The ability of individual states to represent their citizens’ will in law should remain inviolate, and the federal government’s role in providing a framework for the overarching rights and duties of a United States citizen should be guided by the Constitution. And anyone who attempts to conflate the two should be given a bus ticket to a border station. It’s to protect these exact sorts of principles that American conservatives were born. Thanks, Leon.

  • iwasbornwithit

    Are superior to Bachmann on her 10th Amendment analysis of Romneycare, but I have been waiting for someone to tear down Mitt’s dissembling and technical defense of it. Ok, we get it…there is a difference between state vs federal mandate. But why does he support any govt entity forcing its citizens to purchase health insurance? And how well do you think this distinction in a general election will fly when he will be running on repealing Obamacare? I suspect that this argument will go over 90% of American’s heads. And why can’t redstate bring itself to support bachmann? What has she done other than be reliably conservative as opposed to perry and romney?

    • gekster

      Did you even watch the debate?

      • iwasbornwithit

        I just put more stock in a politician’s record then I do in your subjective opinion about whether they appear to be “up to the challenge” whatever that means. I personally thought she did well tonight and I suspect she will pull ahead of Perry in the next week or so despite the incessant insistance of the establishment GOP that this is a two-person race.

        • gekster

          I want to sell you a bridge.
          It’s in northern Michigan, and it is as long as Bachmanns chances.
          So as to say, you can’t stand on one end and see the other.

    • Leon H. Wolf

      Here, let me help you by posting it again:

      Just because Romneycare is constitutional does not mean that it is a good idea; in fact, I think it is a spectacularly bad one. As I have explained before, Romneycare is easily Romney?s greatest electoral liability and his failure to distance himself from it will probably doom his candidacy. But claiming that everything that is a bad idea is also unconstitutional is a classic liberal tactic and Bachmann should have avoided the temptation to do so tonight.

  • californiagold

    The Heritage Foundation does a good job explaining the important distinction between state mandated auto liability insurance and health insurance mandates.

    “Automobile insurance requirements impose a condition on the voluntary activity of driving; a health insurance mandate imposes a condition on life itself. States do not require non-drivers, including passengers in cars with potentially bad drivers, to buy auto insurance liability policies–even though such a requirement undoubtedly would lower the auto insurance premiums for those who do drive. The auto insurance requirement is linked to driving and to the possibility that bad driving may cause injuries to others, including passengers in the driver’s car, not to those who benefit from roads generally.”

    Whether one agrees with Bachmann’s constitutional expertise isn’t the issue. What is far more important is her point regarding Romney’s defense of Romneycare. I find it very hard to believe that Mitt Romney will fight to overturn Obamacare after he is on record for supporting state mandates that force citizens to purchase a product against their will…in this case health insurance.

    • iwasbornwithit

      What is more important here? That Bachmann imperfectly described the constitutionality of Romneycare or the fact that Mitt signed Romneycare into law?

      • wacowboy

        was that if Romneycare should be criticized, it should be done because it is a bad idea, not because it is unconstitutional. her remarks were an attempt to paint herself as the only one on that stage who was serious about repealing Obamacare. The truth is that she is one of at least 3 who I think would be dead serious about repeal.

        In other words, if she’s going to be critical of something specific, like constitutionality, she needs to be sure she’s right.

  • americanmale

    When representative Bachmann said, “Plus, no state has the constitutional right to force a person as a condition of citizenship to buy a product or service against their will”…she was referring to the several federal court decisions delcaring Obamacare unconstitutional.

    She then invoked Article 6, Clause 2 of the constitution; more commonly known as the Supremacy clause to derive her statement.

    For background purposes, Article 6, Clause 2 is provided below:

    This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.

    Because of the multiple unconstitutional declarations at the federal level with regards to Obamacare, technically, she is right.

    And Thus, she does have a very clear distinction outlined in the Constitution between the powers granted to the states and the powers granted to the federal government. If it is unconstitutional at the federal level, it is unconstitutional at the state level.

    YOU ALSO SAID:

    On the other hand, the notion that States can compel the purchase of insurance is completely noncontroversial. States mandate the purchase of all kinds of insurance upon all kinds of their residents ? the most common form of this with which people are familiar is compulsory liability insurance for automobiles.

    ACTUALLY, No state requires that you purchase compulsory automobile insurance. The states simply require Proof of Financial Responsibility. This can be demonstrated either by self insurance, surety bonds, or cash deposits in the amounts required by individual states. Contrary to popular belief, one is not forced to buy anything in order to drive a car.

    AS FOR ROMNEY CARE.

    Remember, Romney care only addressed the 9% of those who didn’t have insurance. Most companies have insurance plans in Mass. Also, lower income people are all on state insurance. That plan only affected the sole proprietors and small mom and pop organizations who normally couldn’t afford health insurance plans on their own.

    Which goes to another point. In order to have something deemed unconstitutional, it has to be proven unconstitutional.

    In Mass, the only demographic sector affected was the independents and small mom and pop companies. They don’t have the financial muscle to push a case all the way to the top. It was simply cheaper just to comply.

    Bottom line is that Bachmann is correct with her statement (and not ignorant) that Obamacare and thus RomneyCare are unconstituional…at this present time……

    • wacowboy

      It seems to this reader that Article 6 Clause 2 has more to do with the inability of states to make or pass laws contradictory to federal laws, or to form treaties in conflict with federal treaties. In other words if murder is a federal crime it also is a state crime. Or New Mexico has no right to negotiate its own peace treaty with China.

      The legality of any kind of mandate at the state level would be determined by each individual state’s constitution. Now I will admit to not having read the constitutions of all 57 states, but to me, from a federal perspective, it becomes a non-issue. That’s not to say that any kind of mandate is a good idea or an effective way to accomplish anything. The point is that the power to mandate or not mandate is a power that is left to the states.

      I think Leon articulated the point well. In particular the closing statement about constitutionality vs a good/bad idea. Romneycare is just plain a bad idea.

      I had liked Michele Bachman, not as president, but as a leader in congress before tonight. But tonight’s debate sounded more like pandering, accusing, and piling on than talking about issues. I think she tried to make herself look better by tearing down the two men ahead of her in polls. Not a good play in my book and I think that many saw right through it

      • gekster

        Uless every other one pulls out, she has no chance.

        • wacowboy

          that really turned me off to politics a few years ago. All attack ads, no substance. It is almost like the DNC was writing her checks tonight.

          So you disagree with Perry and Romney about stuff. Great. Say so. Say why. Say it with passion. But the cherry picking facts, the ad-hominem attacks, and inferred allegations of “legal corruption” are just plan silly. Let Barry’s minions do that. I thought Michele was better. If there’s something I’m upset about tonight, that’s it.

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

      the US Constitution or a statute of Congress prohibits same. None do. The only way Massachusetts’ mandate is unconstitutional is if the Massachusetts Constitution prohibits same. It does not.

      • duanej

        The US Constitution has 17 enumerated powers, The MA mandate is not unconstitutional at a Federal level. That is true. But murder is also not unconstitutional at the Federal level.

        The MA constitution, like all other State constitutions, must be a Republican form of government. Unless such charter has an enumerated power to mandate the purchase of health insurance (which would necessarily be a positive, not a negative, liberty and not in compliance with the US Constitution under the 14th and 15th amendments) the mandate would be unconstitutional at the State level and would, necessarily, make the power unconstitutional at the Federal Level.

        • Leon H. Wolf

          I have a fairly serious level of doubt that Bachmann was trying to say that Romneycare violated the Massachusetts State Constitution. Whether it does or not is a question I am not competent to answer, and I expect that goes double for Bachmann.

          • duanej

            >> I have a fairly serious level of doubt that Bachmann was trying to say that Romneycare violated the Massachusetts State Constitution

            I don’t think that’s what she was saying either. But my analysis clearly indicates a line of thinking that does make Romneycare unconstitutional AT THE FEDERAL LEVEL. I don’t have any illusions that Bachman reasoned that way either, but one can be right by accident. Even if they are, they are still right.

          • Leon H. Wolf

            Her specific claim was “. It?s unconstitutional?

            (APPLAUSE)

            ? whether it?s the state government or whether it?s the federal government.”

            That’s just incorrect. It’s not even correct by accident.

        • JSobieski

          No state has a constitution of limited enumverated powers that is anologous to the U.S. Constitution—not a one. So the following statement is simply wrong:

          “Unless such charter has an enumerated power to mandate the purchase of health insurance (which would necessarily be a positive, not a negative, liberty and not in compliance with the US Constitution under the 14th and 15th amendments) the mandate would be unconstitutional at the State level and would” –Nope. The measure is constitional unless the Mass Constitution specifically prohibits it.

          You (and Bachmann apparently) need to understand that not every stupid idea is unconstitional at every level. There is nothing unconstitional about Romneycare with regards to the Mass Constitution.

          A Republican form of government could even be a socialist government. I mean, look at Alaska and how oil revenues are divided.

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

          The federal government has no general police powers.

          I would say, with respect to murder, that the 5th and 14th amendments that neither the feds or the states can take life absent due process. Not exactly on point, but just an aside.

    • Leon H. Wolf

      I imagine this is what it would sound like if I tried to write a comment about quantum physics or some other subject about which I know literally nothing.

      The Supremacy Clause has nothing – literally zero – with whether a state can impose an individual mandate to purchase health insurance.

      • americanmale

        You are right, the supremacy clause in itself has nothing to do with determining the constitutionality of an issue. However, if an issue is found to be unconstitutional at the federal level, then one invokes the supremacy clause to classify the issue as unconstitutional at the state level.

        • Leon H. Wolf

          “However, if an issue is found to be unconstitutional at the federal level, then one invokes the supremacy clause to classify the issue as unconstitutional at the state level.”

          Just plain wrong. The Supremacy Clause, inter alia, says that if a state law is in direct conflict with a constitutional federal law, then the federal law wins. It is just false to say that the Supremacy Clause can be used to establish that a state law is unconstitutional because an equivalent federal law is. In addition to the fact that there is literally no precedent supporting this interpretation of the Supremacy clause, the interpretation would also cause the Tenth Amendment would have no meaning whatsoever.

  • http://www.letfreedomringblog.com ggross56

    The notion that a person can be compelled to purchase anything by any level of government as a condition of existing is repugnant.

    • wacowboy

      and that’s what she should have said instead of accusing the others of being less than sincere in their desire to repeal Obamacare.

  • AndrewHyman

    I pretty much agree with Leon’s blog post. But, as other commenters have noted, requiring people to buy car insurance is different from a health insurance mandate, because no one is required to buy or drive a car, and so everyone can avoid the car insurance requirement.

    Maybe the only thing in the Constitution that might slightly, arguably support Bachmann is the 24th Amendment, which bans states from imposing a poll tax. In other words, if a state makes it a felony to not buy health insurance, and accordingly takes away your right to vote if you commit that felony, then there may be a violation of the 24th Amendment.

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

      For many people, “choosing” not to drive is just as practical as “choosing” not to seek medical attention.

      • AndrewHyman

        No state requires people to buy car insurance if they don’t drive. But Massachusetts does require people to buy health insurance even if they don’t choose to ever seek medical care.

      • duanej

        >> For many people, ?choosing? not to drive is just as practical as ?choosing? not to seek medical attention.

        But it is a choice.

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

          .

    • Leon H. Wolf

      If Massachusetts even prohibits felons from voting? That’s a serious question; I don’t know the answer.

      Even if true, your argument (which is creative) would invalidate a whole host of state taxes and fees that no one argues is constitutional. The end effect would be that all states would immediately allow felons to vote.

      The end point here, at least to me, is that whether health insurance and car insurance are conceptually different, the question is essentially the same: does anything in the constitution prohibit the state of Massachusetts from requiring their citizens to purchase health insurance? I submit that it clearly does not.

      • AndrewHyman

        My understanding is that a successful ballot question removed the right to vote for convicted felons while they’re in jail. Upon release, his or her right to vote is restored.

    • A_Texan

      Andrew,

      I suspect you’ll disagree. But here goes.

      The Fourteenth Amendment prohibits the states from depriving any person of property without due process of law. The question is whether a law mandating that an individual forfeit money to another private individual or entity in exchange for a particular benefit.

      The Due Process Clause prohibits, inter alia, the state from forcing an individual to sell his property to another private individual–even with “just compensation.” The dissent in Kelo v. City of New London rightly pointed out that the use of eminent domain procedures was not due process if the property was to be given to a private developer.. The majority argued that it was still for “public use.”

      Of course, the government occasionally does require individual to engage in transactions with other private persons, but only where the individual undertakes to engage in certain time of activity: (1) those who undertake to be common carriers or employers can be subject to antidiscrimination laws, (2) those who seek and use a license–a privilege–to drive are subject to mandatory insurance laws, etc. But there is no precedent, I believe, requiring individuals, simply by force of their sheer residence or presence in a state, to forfeit their money to an insurance company, even though they receive some compensation in the form of an insurance policy (that is arguably not even just compensation).

      Mrs. Bachmann’s position seems consonant with the conservative dissent’s position in Kelo. And in my opinion, is consistent with the original understanding of our Fourteenth Amendment.

      • JSobieski

        Scalia would vomit all over that. The Kelo case was an entirely different dispute, so the dissent in Kelo is dicta that doesn’t really apply here. In an eminent domain case, the key issue of contention is public purpose.

        Bottom Line: The only people who used to support “substantive due process” as being part of the 14th Amendment were liberals.

        States have plenary police power. States are free to amend their constitutions to prohibit individual mandates, but nothing in the US Constitution prevents a state from enacting them.

        • A_Texan

          The dissent in Kelo relied upon this version of “due process.” The Court held in 1897 that the Due Process Clause incorporated the Takings Clause, which requires “just compensation” for takings for “public use.” The Kelo dissent (and the majority, in fact) acknowledged that the Due Process Clause thus prohibited taking of private property for another’s purely private use.

          Hard to know if procedural or not. Procedural due process generally prohibits a process that culminates in a cruel or unusual punishment. Arguably the required “process” prohibits a taking of property without a finding of criminal or civil liability or without a “public use,” e.g., taxation and eminent domain.

          • JSobieski

            Kelo hings on public purpose. The insurance mandate does not. The insurance mandate hinges on the plenary police power of the state.

            The Due Process Clause (i.e. the Taking Clause) that you are referring to is not in the 14th Amendment, it is in the original Bill of Rights.

            Money is not considered a property right at least in terms of the Takings Clause.

          • A_Texan

            To clarify: Due Process Clause is in both the 5th and 14th Amendments. The Takings Clause is expressly in the 5th. But the Court has long held that the taking of property via eminent domain is a taking of property governed by the Due Process Clause.

            Money is property for purposes of due process (even though not property under eminent domain). Likewise, taxation is also a taking of property, as is a court-ordered fine or a court-ordered monetary judgment. Deprivation by general taxation, deprivation by court order based on civil or criminal liability–all must comport with due process, and usually do.

            Even in the exercise of plenary power, a state cannot simply decree that what was once your bank account is now my bank account.

            Here, we have a law that does so decree, but requires the insurance company to give something in exchange. Without civil liability toward the insurance company, DP says I don’t owe them a dime.

          • JSobieski

            People can’t be singled out.

            If the state in which you lived passed a law that everyone had to pay $1,000 in a per person tax (taking your bank account), that would be a constitutional law.

  • http://www.doctor-bob.biz rsklaroff

    “According to the Tenth Amendment and centuries of constitutional precedent, states governments have inherent powers, subject only to the express limits placed upon them by the Constitution.”

    That’s not how I read it; it seems that the people are ultimate power-holders.

  • http://rhymeswithright.mu.nu Rhymes With Right

    No — but it seems clear to me that you ought to be, Michelle. After all, states have much wider latitude than the federal government does — unless you ant to argue that mandatory car insurance for drivers is ALSO an unconstitutional usurpation by the states.

    • duanej

      Do people in your state who do not own cars have to buy automobile insurance?

      Engaging in an activity that puts 3rd parties at risk is one thing. Forcing citizens to purchase something as a condition of breathing is wholly separate and does not fall to the perview of any government — not even States.

      • APA Guy

        If so, what else should the government be able to REQUIRE me to insure?

        Also, Roller blading and riding bikes puts 3rd parties at risk. Should we require bike riders to to carry insurance based on the POSSIBILITY that something might happen?

        Forcing insurance on anything save lien-held vehicles is not the place of the U.S government at any level.

        • duanej

          >> Forcing insurance on anything save lien-held vehicles is not the place of the U.S government at any level.

          I agree. But Fed and state are different. States do have the power to protect their citizens from each other. While I don’t agree with a State forcing me to purchase car insurance even if I engage in that activity, I am free to move to another state that does not require auto liability insurance such as FL.

          >> Also, Roller blading and riding bikes puts 3rd parties at risk. Should we require bike riders to to carry insurance based on the POSSIBILITY that something might happen?

          I think reasonable people will agree that Roller bladers and bike riders assume a much higher risk to themselves than they do to others person or property.

          • APA Guy

            We should allow the state to trample our rights in lieu of the federal government? For what reason? Because it’s a “state” and not the federal government?

            I see no difference between 1 nation and the collective states requiring me to purchase insurance. To my knowledge the only state with non-compulsory auto insurance policies is New Hampshire…a great state, but somewhat limited when it comes to housing citizens :)

          • Leon H. Wolf

            But the difference is that when the Federal government does it you can take them to court and have the law thrown out. When the State government does it you have to start a campaign to oust the bastards who forced the law on you. It’s a more onerous mode of recourse but we shouldn’t pretend that it’s no recourse at all.

          • acat

            This is the original Laboratories of Democracy idea … if Massachusetts has problems attracting citizens because of onerous requirements, then .. they’ll lose tax revenue to the surrounding States. (I understand that this is happening … )

            Mew

          • Leon H. Wolf

            I’m quite attached to my home state and there are a great many laws I would just work hard to overturn rather than moving.

          • acat

            I’m in Illinois .. perhaps you’re some place more rational?

            The cost for me to stay and remain a productive citizen went up quite a lot this year, and the State budget *still* has a structural deficit and a pile of debt…

            Mew

          • APA Guy

            We should allow the state to trample our rights in lieu of the federal government? For what reason? Because it’s a “state” and not the federal government?

            I see no difference between 1 nation and the collective states requiring me to purchase insurance. To my knowledge the only state with non-compulsory auto insurance policies is New Hampshire…a great state, but somewhat limited when it comes to housing citizens :)

          • Michael Dugas

            Is offer you the opportunity to move to a state that is more suited to you. The fact that we now have an dominating Federal Government with a MUCH weakened position of power and control with the States. This is NOT how our Founding Fathers set this up but over time it has been twisted into the mess that it is.
            The Fed. Gov ignores the diversity of political, cultural and historical thought that exists state to state so they “dictate” to all the states as if they are all generic equals. This ends up with an all powerful centralized government that has become unresponsive and slow to react to even its constitutionally mandated duties let alone all the other “responsibilities” it has assumed for itself. It also becomes glaringly out of touch with its citizens.
            Professional Politicians have become a curse

          • duanej

            Florida did not require its citizens to carry liability insurance for motor vehicles. I don’t know if that is still true today, but at least 20 years ago, they had no such requirement.

            I don’t think I ever said we should allow the states to trample our rights in lieu of the federal government, so that is a mental stretch, to put it in mild terms.

            I did observe the blatant fact that states can and often do require motorists to carry liability insurance. But they do not require ALL citizens to carry liability insurance. Only those who engage in the economic activity of purchasing and owning a vehicle and who also acquire a license plate for said vehicle for the purpose of driving on state roads are required to carry the insurance. The insurance does not protect the vehicle operator or the vehicle from damage or injury, but does serve to protect those parties and property who are injured by or on behalf of the vehicle owner/insurance consumer.

            That, to me, is a reasonable requirement of a state. It is in no way at all a reasonable requirement of the federal government. Much less is it reasonable for the government (any government) to mandate that I purchase any product or service at all as a condition of being a legal citizen and on the sunny side of the grave.

        • JSobieski

          Sometimes the remedy for a bad idea is the political process.

          It is precisely these kinds of issues (from the left’s perspective) that results in the Constitution being stretched in all sorts of silly ways.

          The best remedy for bad policies in most instances is the ballot box.

  • http://rhymeswithright.mu.nu Rhymes With Right

    He can distinguish his plan in Massachusetts from ObamaCare in two ways:

    1) As a state plan, it is fundamentally different from the national mandate imposed under ObamaCare in terms of its Constitutionality.

    2) In light of the fact that the Massachusetts experiment has proved to be a failure, it demonstrates why a federal program is unwise EVEN IF one believes that the federal government has the power to require one.

  • duanej

    >> States mandate the purchase of all kinds of insurance upon all kinds of their residents ? the most common form of this with which people are familiar is compulsory liability insurance for automobiles.

    My state requires me to buy compulsory liability insurance for automobiles — if I have an automobile that carries a tag. If I don’t have a tagged vehicle, I don’t have to purchase compulsory liablity automobile insurance. I don’t know about other states so if my assumption is incorrect that no other state compells pedestrians to purchase liability insurance, I am certain others here will correct me.

    If I engage in that economic activity, or some other activity, that places others (3rd parties) at risk, the state would, could, and should compell me to purchase insurance coverage for that activity. As a natural person, I should not be forced — at any government level — to purchase any sort of insurance or engage in any activity, economic or otherwise, that I do not freely choose to engage in.

    X
    “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”

    From this, the common sense interpretation is that the US government is restricted from taking and acting on powers that are reserved to the States or to the people. This amendment does not indicate, as the author suggests, that we must ask whether States are expressly restricted from exrcising certain powers. By his reasoning, a State can compell its citizens to eat broccoli as a condition of citizenship, or to purchase 5 automobiles. After all, the constitution is silent on these points.

    Clearly, the founders did not overly trust the Federal government. They did trust States, but not so far as they could throw them. They did trust the people, though. That is why each State is required to carry its own constitution that comports with the Federal Constitution and has the same style of “negative liberties” that determines what enumerated powers it (the State) has and ties it to the same mooring as the Fed. So, unless your state constitution grants and authorizes the state to mandate the purchase of automobile insurance (a positive liberty), then the decision is left to the individual, who is the true seat of power.

    • littlehouse18

      If the Massachusetts constitution gives Mass. the express authority, then so be it. But most mandates as a condition of residency don’t sit well with me. Americans shouldn’t be under the yoke of states anymore than of the Federal government.

      • duanej

        >> If the Massachusetts constitution gives Mass. the express authority, then so be it.

        If the Mass constitution gives the state that express authority, then that renders the Mass constitution in violation of article 6 and Ammendments 14 & 15 and therefore unconstitutional at a federal level.

  • Scope

    When she appeared on the Wallace Sunday morning show the first time, when he asked her the question if she was a flake, she also made some confusing statements, but they got lost in the attack on Wallace asking her if she was a flake.

    Wallace played a video of Bachmann strongly supporting DOMA. He then asked her if she would be willing to force states to lose their passed same sex marriage laws like NH, that is one of the few states that have allowed same sex marriage. She said no that she would never trample on states rights. He said but you do support a constitutional amendment for DOMA, and she said yes absolutely she supported that const. amendment. He said that if DOMA was passed at the federal level, that it would make the same sex marriage laws unconstitutional and therefore obsolete. He said he was confused because she seemed to be saying two different things. She stuck with her conflicting positions, and said she was right about it, but never explained why. As I said, no one paid any attention to it, as the only story that came out of that was the flake comment.

    With those conflicting DOMA statements, and the insurance question from last night, I would have to guess that Bachmann is just pandering, and hoping that those in the audience don’t know that what she is saying is actually wrong, or conflicting.

  • mort

    I could be wrong, but Bachman strikes me as the typical grandstanding, put on the show, I have to please the electorate type of candidate that the American voter has fallen for in the past. This turns some of us off.
    If, however she is just so passionate in her delivery that he seems over the edge, then some of us can dismiss it, despite some flaws in her knowledge base.
    Curious: Which candidate is best at not pandering?

  • Wayne

    that MB was making a point of “intention” rather than taking a technical Constitutional stand. I interpreted what she meant was that if you introduce healthcare in your state, what makes us believe that you will be serious about repealing national healthcare. Criticism of her Constitutional knowledge or suggesting that she was grandstanding doesn’t hold up for me.

    She didn’t lose any stature in my eyes and I do not think less of her for her comments.

    Nice try for those of you in the Perry and Romney camps…

  • johnt

    for MB, more so the 14th. Toss in the now hallowed “Privacy” thing and you have a position. References to dubious precedents, driving, carry weight only so far and require caution. It is the favorite gambit of the left. if A then B, and while we are at it, let’s run it all out to Z. We look for differences, I for example, would not care to have a multitude of auto drivers in my hospital bed, but that’s me.

  • 1stRichard

    This is not what I expected here, I expected much more. Michele Bachmann claim has merit under the original arguments for the Federal and State Constitutions, if she knows this is of concern. The many Sate Constitutions are a culmination of the Federal Constitution of the time and Massachusetts was one. Somehow, socialist progressives have changed their original arguments in to opposites and that should be a different thread involving Case Law and successive legislation, too much to cover here.

    The General Welfare of this nation, it is in our Federal Constitution but more interestingly, this argument for common good can be found in the Massachusetts Constitution. The Massachusetts Constitution from which the Federal Constitution is formed has a good discretion of common good of that time.

    ?Article VII. Government is instituted for the common good; for the protection, safety, prosperity and happiness of the people; and not for the profit, honor, or private interest of any one man, family, or class of men:??

    The argument that Romneycare is for private interest of some and not all, and the cost here precludes there is profit. There is argument that Romneycare violates both Federal and State Constitutions.

    To make regular the commerce between the states is well within the enumerated powers, the same clause Obamacare uses in justification also violates the original argument as well Romneycare. The argument that Romneycare regulates commerce between the states can be made.

    I could go on with many more therefore making it necessary as a separate entry and this should be taken as a starting point. If you look, you will find many more.

  • http://www.doctor-bob.biz rsklaroff

    …per interview with o’reilly is that romneycare’s mandate is akin to forcing kids to attend school.

    fyi

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