Obamacare Insurance Mandate Ruled Constitutional

[Maineiacs]

So basically, congress was like, "eh, you're probably gonna use it so let's make it mandatory."

That's what they did with car insurance.

[Caninope]

So basically, congress was like, "eh, you're probably gonna use it so let's make it mandatory."

That's what they did with car insurance.

Except that's a state law, not federal.

[The Cat-Tribe]

1. The various bills were posted and available for anyone who wanted to to read. If you didn't that your fault.

2. There were also many analyses of the bills out there -- most importantly, the objective analyses of the Congressional Budget Office.

3. Nancy Pelosi did not say that. That is a lie.

BTW, here is a good source summarizing information about the Health Care Reform Act and its impacts.

The haste with which Congress passed and amended the bill really precluded any discussion.
Ms Pelosi did say, "But we have to pass the bill so that you can find out what is in it..." So if you want to split hairs, go ahead. The meaning is very much the same.

Lies.

1. In addition to President Obama campaigning for President on many of the points at issue in health care reform, debate starting immediately after he took office over other versions of health care reform, and other sources of public information and debate, here is a brief legislative history of the Patient Protection and Affordable Care Act (aka the Health Care Reform Act) (aka Obamacare):

• Introduced in the House as H.R. 3590 by Charles Rangel (D–NY) on September 17, 2009
• Committee consideration by: Ways and Means
• Passed the House on October 8, 2009 (416–0)
• Passed the Senate as the "Patient Protection and Affordable Care Act" on December 24, 2009 (60–39) with amendment
• House agreed to Senate amendment on March 21, 2010 (219–212)
• Signed into law by President Barack Obama on March 23, 2010

Even by the most narrow and juandiced view, the bill was considered by Congress for 6 months (after about 6 months of wrangling over earlier versions). How is that acting with such "haste ... as to preclude[] any discussion"?

2. It is more than a matter of splitting hairs. It is a matter of inaccurately quoting someone to make it seem they said something sinister when they did nothing of the sort.

First, Speaker Pelosi's remarks (which you take grossly out-of-context) were made on March 9. 2010 -- about 5 months after the House passed its version of the HCRA and 3 months after the Senate passed its version. It is true the House had not yet agreed to the Senate version, but if you really think her remarks forced anyone's vote you are delusional.

Second, what Speaker Pelosi actually said in that speech (after several paragraphs of remarks detailing what was in the health care reform bill) was (emphasis added):

Pelosi Remarks at the 2010 Legislative Conference for National Association of Counties
03/09/2010
Washington, D.C. – Speaker Nancy Pelosi delivered a speech this morning at the 2010 Legislative Conference for the National Association of Counties (NACo). This year marks the 75th anniversary of the organization. Below are the Speaker’s remarks:

“Thank you, President Valerie Brown [of Sonoma County, Calif.] Don’t we all take pride in Valerie Brown recently being named County Official of the Year for her advocacy on behalf of all of America’s counties? Thank you, Valerie. Her wealth of experience – as a mayor, a state legislator, and an educator and a county executive - makes her an innovative and effective leader for the future. At this time of great challenges, her understanding of the different needs of NACo’s diverse counties is essential.

“I understand many other county officials are here from California. Any Californians to be heard from here? Thank you for coming the distance to Washington and for going the distance for our constituents. And I want to acknowledge all of you who are here.

“I had the privilege last year to acknowledge the work of the Executive Committee of NACo by welcoming them to the Speaker’s office in the Capitol. This year, I have the even greater privilege to come to you to speak to all of the members of NACo.

“On the 75th anniversary of the National Association of Counties, your leadership is more vital and more necessary than ever. You know that. I just want you to know that we in Congress do too.

“The diversity of America’s counties represents the diversity of America. And yet, you share common responsibilities, whatever the diversity. America’s counties are leading on the issues most important to Americans: the education of our children, the health of their families, and the security of our communities.

“Your common responsibilities bring you to Washington with a common cause: to strengthen the partnership between America’s counties and the federal government. It is in that spirit that I have come here today. It’s in that spirit that we will work together to, as your theme says, to ‘find solutions in tough times.’

“I noticed as I was reading your program, it is pretty intense what you have been through this weekend and the beginning of this week, that you have one workshop that was ‘Influencing Congress from Home’—the cyber influence, very, very important but let me say how important your presence here in Washington is, too. It is very important you have come to all the distance, all the diversity, to make your cumulative impact on the Congress. Please don’t underestimate how important your visit is to us.

“I know that you sometimes have felt that your partnership with Washington has not been a balanced one – that burdens have been put on you that you simply cannot fulfill. These difficult economic times have made your challenges even greater. We all know that.

“Together, here in this room, we have the opportunity to ensure that the partnership between America’s counties and the federal government is strong, productive, and balanced.

“Just a little more than a year ago, our President Barack Obama stood on the steps of the Capitol, just a little more than a year ago and called for swift, bold action now to restore our economic growth. In his budget, he set out a blueprint founded on three pillars for our prosperity: a highly-educated workforce, the future, a clean energy economy, good-paying jobs, and quality, affordable health care for all Americans. And he saw these critical building blocks as engines of job creation and economic growth.

“Answering that call, and responding to the needs of America’s counties, we passed the American Recovery and Reinvestment Act, creating and saving up to 2 million jobs so far, and more to come.

“You know best what the Recovery Act means to American’s counties. I have traveled the country, visited many counties to dedicate, groundbreak, observe funding coming into counties, tens of millions of dollars in some counties, over $100 million in some counties, hundreds of millions of dollars. For the Port of Houston, for a highway in Colorado, whether it is keeping teachers on the job, cops on the street, we believe that the Recovery Act was essential to keep us from an even worse recession. But in fact, it has created or saved 2 million jobs.

“Of particular interest to America’s counties – we increased FMAP, providing immediate relief to counties in the 27 states that contribute to Medicaid, and shored up the safety net for families in difficult times. We provided $624 million for counties in Energy Efficiency Conservation Block Grants—and I know that is important to many of you, you have told me—to promote energy efficiency and conservation while creating jobs and lowering energy costs. I am committed to ensuring that this initiative is strong and ongoing. We have $178 million in Community Development Block Grants that helped you to expand community services, and modernize housing and wastewater systems. Transportation investments and broadband access that have strengthened business opportunities close to home.

“You’ve seen the results, many of you, you have told me about them and again, as I say, you have told me on the site right in your own counties. But I want to just tell you, give you a perspective from here as to what the difference the Recovery Act has made nationally to our economy. Consider this:

“In the last quarter of the Bush Administration, what was reported in the first quarter of last year, America’s GDP, the rate of growth of GDP was a minus 6.4 percent. Minus 6.4 percent. In the equivalent quarter of the Obama Administration one year later, it is at plus 5.9 percent. A swing of over 12 percent in the GDP. This is the fastest rate that we have seen in a long time.

“When we were debating the recovery bill a year ago, a year and a month ago, the stock market was about 6,500. Yesterday it closed 10,500—a swing of 4,000 points.

“Just last week, we learned that America’s manufacturing base grew for the seventh straight month – and is now at its second highest level in years.

“And think of this – jobs. In the first three months of 2009, but let me just state one month so that we can compare them. In January of 2009, the last month of the Bush Administration before we passed the Recovery Act, 779,000 Americans lost their jobs. 779,000 for January of 2009. This January 2010, 20,000 Americans lost their jobs—far too many, we want to move to the plus side of course—but a difference of over three quarters of a million people in just that one month. Thank you, American Reinvestment and Recovery Act.

“But our work is far from complete. We know that. Congress will stay focused on our top priority: putting Americans to work. And I said putting Americans to work, I didn’t say putting Americans back to work. Because we have far too people who will have no job, never had a job that they would go back too.

“So we must invest in training, apprenticeships, and vocational education for the chronically unemployed so we put all of America back to work—some back to work, some newly to work. I think you see this in your counties where we have some young people who have not had the opportunity that America must afford them so that as our economy grows with training and vocational training that many more people will participate in the economic prosperity that we see for our country.

“Just last week, we passed the Hiring Incentives to Restore Employment Act, that’s HIRE—Hiring Incentives to Restore Employment Act, we write these acronyms—another step forward in our fight to put more Americans back to work.

“With $15 billion in critical investments, this bill includes: extension of the Highway Trust Fund. And though the investment is $15 billion and that is paid for, it will unleash tens of billions of dollars in infrastructure investment in your communities. And for small business, we can never do enough and more needs to be done but in this particular bill: a payroll tax holiday for businesses that hire unemployed workers, to create some 300,000 jobs and an income tax credit of $1,000 for businesses that retain these employees. It’s very specific and targeted. And then we have specific support to small businesses with tax credits and accelerated write-offs.

“This bill is one key element, just one step of our broader agenda to expand lending to small businesses, build the infrastructure of the future, support job training, keep police, firefighters, and teachers on the job.

“Tomorrow, Congressman George Miller will introduce his local jobs bill, which allows for county governments and municipalities to retain workers. I think Valerie had a hand in this. I know he is grateful to the input of NACo in crafting this significant legislation.

We believe at this time that nothing is more critical to the long-term economic security of American families and to our economy than comprehensive health care reform, health insurance reform.

“As you are in Washington this week, we stand at the doorstep of history, ready to realize a centuries old dream, started by a Republican President, Teddy Roosevelt. He was the one who started this country thinking in this direction, and we are deeply in his dept. But, we are a hundred years late. A century old dream of health care for all, and we will be prepared to send the bill to President Obama’s desk that ensures affordability for the middle class, accountability for the insurance companies, and access for millions more Americans, tens of millions more.

“Nobody knows better than you the strain on hospitals that never turned a patient away, and health care providers grappling with the challenges of the uninsured and shrinking reimbursement. You know as well as anyone, that our current system is unsustainable. It’s unsustainable to individuals and their families. It’s unsustainable for small businesses. It’s unsustainable for your communities. It’s unsustainable for our state, local, and national budgets.

“President Obama said, one year ago, when he called the first bipartisan, on March 5th of last year, the first bipartisan House and Senate meeting together with many outside stakeholders together at the White House, to find a way for us to come together. And at that time, he said: ‘Health care reform is entitlement reform.’ We cannot sustain the upward spiral of the increases in health care and what that means in Medicare and what it means in Medicaid. So from the standpoint of our national budget, and for your budgets, the current system, as I said, is unsustainable.

“Again, it’s unaffordable for families, individuals and families, for businesses of any size, and it is a cost to our economy. Imagine an economy where people could follow their aspirations, where they could be entrepreneurial, where they could take risks professionally because personally their families health care needs are being met. Where they could be self-employed or start a business, not be job-locked in a job because they have health care there, and if they went out on their own it would be unaffordable to them, but especially true, if someone has a child with a pre-existing condition. So when we pass our bill, never again will people be denied coverage because they have a pre-existing condition.

“We have to do this in partnership, and I wanted to bring up to date on where we see it from here. The final health care legislation that will soon be passed by Congress will deliver successful reform at the local level. It will offer paid for investments that will improve health care services and coverage for millions more Americans. It will make significant investments in innovation, prevention, wellness and offer robust support for public health infrastructure. It will dramatically expand investments into community health centers. That means a dramatic expansion in the number of patients community health centers can see and ultimately healthier communities. Our bill will significantly reduce uncompensated care for hospitals.

“You’ve heard about the controversies within the bill, the process about the bill, one or the other. But I don’t know if you have heard that it is legislation for the future, not just about health care for America, but about a healthier America, where preventive care is not something that you have to pay a deductible for or out of pocket. Prevention, prevention, prevention—it’s about diet, not diabetes. It’s going to be very, very exciting.

“But we have to pass the bill so that you can find out what is in it, away from the fog of the controversy. Furthermore, we believe that health care reform, again I said at the beginning of my remarks, that we sent the three pillars that the President’s economic stabilization and job creation initiatives were education and innovation—innovation begins in the classroom—clean energy and climate, addressing the climate issues in an innovative way to keep us number one and competitive in the world with the new technology, and the third, first among equals I may say, is health care, health insurance reform. Health insurance reform is about jobs. This legislation alone will create 4 million jobs, about 400,000 jobs very soon.

“We must have the courage, though, to get the job done. We have the ideas. We have the commitment. We have the dedication. We know the urgency. Now we have to have the courage to get the job done. So proud that President Obama is taking the message so forcefully to the American people! This is long overdue, a hundred years.

“The challenges we face, the health, the education, the education of our children, the economic well-being of their families, the safety of neighborhoods, all of this, all roads lead to you. The challenges we all face are too great though for each of us to face them alone. We need to form the partnerships, strengthen partnerships at every level of government and with committed and compassionate leaders to understand that the need to focus on the next generation, we need to focus on the next generation, not the next election.

“With that in mind and with great enthusiasm and a sense of history that we have of this responsibility to ensure that health care in America is a right not a privilege; let us move forward in the spirit of restoring and strengthening our partnership, and finding solutions in difficult times. In so doing, we will realize the dream of a brighter future. Thank you for all that you do to make that so.

“Thank you NACo, for the opportunity to be with you. On behalf of my colleagues in the Congress, I welcome you to Washington, D.C. I hope we will see you on Capitol Hill. We want your advocacy either here or from home.

“Thank you, Valerie Brown, for the invitation to be here. Thank you all.”

That was a perfectly reasonable remark saying that the public who were confused by the controversy and legislative process would see the benefits of health care reform once it was actually passed. Speaker Pelosi neither said nor implied that the public (let alone anyone else) shouldn't be fully informed about the contents of the legislation -- just that they might not be until they saw the law in action.

[Caninope]

This only holds weight in the jurisdiction, and there are 14 other challenges to the law.

If only one of the courts rules otherwise, it is very probable it will be appealed.

[The Cat-Tribe]

lol wut? As per Marbury v. Madison and around two and a quarter centuries of prescient, constitutionality is exactly what the courts say.

So the courts get to be the final authority on the Constitution because the courts claimed they were the final authority on the Constitution? That hardly seems like a rational position to take.

All the courts decide is which interpretation of the Constitution will constrain government actions. That does not mean that that interpretation is necessarily the correct one.

Your prior arguments about objective truth being independent of what SCOTUS says were irrelevant and ultimately nonsensical, but at least they weren't blatantly false and disigenuous. It is the Constitution itself, and not judicial fiat, that created the power (in fact, the duty) of judicial review.

1. The Constitution requires the judiciary to exercise the power of judicial review and declare void any properly challenged law that would violate the Constitution. See generally Article III and Article VI of the U.S. Constitution.

Chief Justice Marshall explained this duty at length in the seminal case of Marbury v. Madison, 5 U.S. 137 (1803). The unanimous Court in Marbury declared: "It is emphatically the province and the duty of the judicial department to say what the law is" and "an act of the legislature repugnant to the constitution is void." Thus, the courts must void any law that violates the Constitution.

That this was intended by the Founders to be so read is confirmed by Alexander Hamilton's The Federalist #78. Hamilton states: "There is no position which depends on clearer principles, than that every act of a delegated authority, contrary to the tenor of the commission under which it is exercised, is void. No legislative act, therefore, contrary to the Constitution, can be valid. To deny this, would be to affirm, that the deputy is greater than his principal; that the servant is above his master; that the representatives of the people are superior to the people themselves; that men acting by virtue of powers, may do not only what their powers do not authorize, but what they forbid." Hamilton further states: "The interpretation of the laws is the proper and peculiar province of the courts. A constitution is, in fact, and must be regarded by the judges, as a fundamental law. It therefore belongs to them to ascertain its meaning, as well as the meaning of any particular act proceeding from the legislative body." Thus, again, it is the duty of judges to nullify unconstitutional laws.

The same sentiment is echoed in SCOTUS's unanimous decision in Cooper v. Aaron, 358 U.S. 1 (1958):

Article VI of the Constitution makes the Constitution the "supreme Law of the Land." In 1803, Chief Justice Marshall, speaking for a unanimous Court, referring to the Constitution as "the fundamental and paramount law of the nation," declared in the notable case of Marbury v. Madison, 1 Cranch 137, 177, that "It is emphatically the province and duty of the judicial department to say what the law is." This decision declared the basic principle that the federal judiciary is supreme in the exposition of the law of the Constitution, and that principle has ever since been respected by this Court and the Country as a permanent and indispensable feature of our constitutional system. It follows that the interpretation of the Fourteenth Amendment enunciated by this Court in the Brown v. Board of Education case is the supreme law of the land, and Art. VI of the Constitution makes it of binding effect on the States "any Thing in the Constitution or Laws of any State to the Contrary notwithstanding." Every state legislator and executive and judicial officer is solemnly committed by oath taken pursuant to Art. VI, cl. 3, "to support this Constitution." Chief Justice Taney, speaking for a unanimous Court in 1859, said that this requirement reflected the framers' "anxiety to preserve it [the Constitution] in full force, in all its powers, and to guard against resistance to or evasion of its authority, on the part of a State . . . ." Ableman v. Booth, 21 How. 506, 524.

The judiciary's enforcement of the Constitution by voiding unconstitutional legislation is the opposite of tyranny, as Hamilton explained in The Federalist #78:

If it be said that the legislative body are themselves the constitutional judges of their own powers, and that the construction they put upon them is conclusive upon the other departments, it may be answered, that this cannot be the natural presumption, where it is not to be collected from any particular provisions in the Constitution. It is not otherwise to be supposed, that the Constitution could intend to enable the representatives of the people to substitute their WILL to that of their constituents. It is far more rational to suppose, that the courts were designed to be an intermediate body between the people and the legislature, in order, among other things, to keep the latter within the limits assigned to their authority. The interpretation of the laws is the proper and peculiar province of the courts. A constitution is, in fact, and must be regarded by the judges, as a fundamental law. It therefore belongs to them to ascertain its meaning, as well as the meaning of any particular act proceeding from the legislative body. If there should happen to be an irreconcilable variance between the two, that which has the superior obligation and validity ought, of course, to be preferred; or, in other words, the Constitution ought to be preferred to the statute, the intention of the people to the intention of their agents.

Nor does this conclusion by any means suppose a superiority of the judicial to the legislative power. It only supposes that the power of the people is superior to both; and that where the will of the legislature, declared in its statutes, stands in opposition to that of the people, declared in the Constitution, the judges ought to be governed by the latter rather than the former. They ought to regulate their decisions by the fundamental laws, rather than by those which are not fundamental.

2. Here is a more lengthy (and, I afraid, a bit repetitive) explanation of how judicial review is an express part of the Constitution and central to the system of checks and balances that protects our freedom:

A. Judicial review is the very essence of the existence of the Supreme Court (and "inferior" federal courts) and is clearly provided for in our Constitution. See generally Article III and Article VI of the U.S. Constitution. This is spelled out at length in Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803) and in The Federalist #78.

B. Where exactly in the Constitution is judicial review found? Well, let's quickly note that Article VI tells us that: "This Constitution ... shall be the supreme Law of the Land." Let us also note that Article I and Article II fail to give final power to interpret the Constitution to either the executive or legislative branches of government.

So, let's now turn to Article III, Section 1: "The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. ..." It is inherent in the idea of judicial power that the Court has the power to interpret law. As Justice Marshall declared in Marbury, "It is emphatically the province and the duty of the judicial department to say what the law is." That this was intended by the Founders to be so read is confirmed by Federalist #78: "The interpretation of the laws is the proper and peculiar province of the courts. A constitution is, in fact, and must be regarded by the judges, as a fundamental law. It therefore belongs to them to ascertain its meaning, as well as the meaning of any particular act proceeding from the legislative body."

One also can look to the overall scheme of the Constitution, particularly the setting up of checks and balances. The judicial power to interpret law is the judiciary's primary check on the other branches. Without it, the system of checks and balances fails. Regardless, in Article III, Section 2, we are informed: "The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution ..." Thus, any doubt that the Court has the power in both Law and Equity to rule on cases involving the meaning of the Constitution is removed. Such cases are emphatically within the judicial Power.

Finally, in Article III, Section 2, we learn: "In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make. " Thus, the judicial power includes the jurisdiction over both fact and law questions in cases arising under the Constitution. Again, the Court has the power to interpret law, including the Supreme Law of the Land.

C. Where did the concept of judicial review come from? Judicial review did not spring full-blown from the brain of Chief Justice Marshall in Marbury. The concept had been long known. The generation that framed the Constitution presumed that courts would declare void legislation that was repugnant or contrary to the Constitution. They held this presumption because of colonial American practice. Judicial review in the English common law originated at least as early as Dr. Bonham's Case in 1610. Judicial review was utilized in a much more limited form by Privy Council review of colonial legislation and its validity under the colonial charters. In 1761 James Otis, in the Writs of Assistance Case in Boston, argued that British officers had no power under the law to use search warrants that did not stipulate the object of the search. Otis based his challenge to the underlying act of Parliament on Bonham's Case, the English Constitution, and the principle of “natural equity.” John Adams subsequently adopted this reasoning to defend the rights of Americans by appeal to a law superior to parliamentary enactment. And there were several instances known to the Founders of state court invalidation of state legislation as inconsistent with state constitutions.

Practically all of the Founders who expressed an opinion on the issue in the Constitutional Convention appear to have assumed and welcomed the existence of court review of the constitutionality of legislation, and I have already noted the power of judicial review was explicity set forth in The Federalist Papers. Similar statements affirming the power of judicial review were made by Founders duing the state ratifying conventions. In enacting the Judiciary Act of 1789, Congress explicitly made provision for the exercise of the power, and in other debates questions of constitutionality and of judicial review were prominent.

And, in the 200 years since Marbury, the power of judicial review has been accepted and further expounded. If it were truly a mere power-grab, it could have long ago been nullified. Objections to judicial review motivated by a dislike for a specific line of caselaw are both historically inaccurate and rather tedious.

D. Is judicial review valid? Another case you might check out that confirms the Court's power of judicial review is the unanimous decision in Cooper v. Aaron, 358 U.S. 1 (1958):

As this case reaches us it raises questions of the highest importance to the maintenance of our federal system of government. It necessarily involves a claim by the Governor and Legislature of a State that there is no duty on state officials to obey federal court orders resting on this Court's considered interpretation of the United States Constitution. Specifically it involves actions by the Governor and Legislature of Arkansas upon the premise that they are not bound by our holding in Brown v. Board of Education, 347 U.S. 483. That holding was that the Fourteenth Amendment forbids States to use their governmental powers to bar children on racial grounds from attending schools where there is state participation through any arrangement, management, funds or property. We are urged to uphold a suspension of the Little Rock School Board's plan to do away with segregated public schools in Little Rock until state laws and efforts to upset and nullify our holding in Brown v. Board of Education have been further challenged and tested in the courts. We reject these contentions.
. . .
However, we should answer the premise of the actions of the Governor and Legislature that they are not bound by our holding in the Brown case. It is necessary only to recall some basic constitutional propositions which are settled doctrine.

Article VI of the Constitution makes the Constitution the "supreme Law of the Land." In 1803, Chief Justice Marshall, speaking for a unanimous Court, referring to the Constitution as "the fundamental and paramount law of the nation," declared in the notable case of Marbury v. Madison, 1 Cranch 137, 177, that "It is emphatically the province and duty of the judicial department to say what the law is." This decision declared the basic principle that the federal judiciary is supreme in the exposition of the law of the Constitution, and that principle has ever since been respected by this Court and the Country as a permanent and indispensable feature of our constitutional system. It follows that the interpretation of the Fourteenth Amendment enunciated by this Court in the Brown case is the supreme law of the land, and Art. VI of the Constitution makes it of binding effect on the States "any Thing in the Constitution or Laws of any State to the Contrary notwithstanding." Every state legislator and executive and judicial officer is solemnly committed by oath taken pursuant to Art. VI, cl. 3, "to support this Constitution." Chief Justice Taney, speaking for a unanimous Court in 1859, said that this requirement reflected the framers' "anxiety to preserve it [the Constitution] in full force, in all its powers, and to guard against resistance to or evasion of its authority, on the part of a State . . . ." Ableman v. Booth, 21 How. 506, 524.

No state legislator or executive or judicial officer can war against the Constitution without violating his undertaking to support it. Chief Justice Marshall spoke for a unanimous Court in saying that: "If the legislatures of the several states may, at will, annul the judgments of the courts of the United States, and destroy the rights acquired under those judgments, the constitution itself becomes a solemn mockery . . . ." United States v. Peters, 5 Cranch 115, 136. A Governor who asserts a power to nullify a federal court order is similarly restrained. If he had such power, said Chief Justice Hughes, in 1932, also for a unanimous Court, "it is manifest that the fiat of a state Governor, and not the Constitution of the United States, would be the supreme law of the land; that the restrictions of the Federal Constitution upon the exercise of state power would be but impotent phrases . . . ." Sterling v. Constantin, 287 U.S. 378, 397 -398.

E. More on the history of judicial review. I've already established that judicial review was not a new idea and had existed under common law. Here is more from Currie, The Constitution in the Supreme Court: The Powers of the Federal Court 1801-1835, 49 U. Chi. L. Rev. 646, 655-656 (1982):

The Privy Council had occasionally applied the ultra vires principle to set aside legislative acts contravening municipal and colonial charters. State courts had set aside state statutes under constitutions no more explicit about judicial review than the federal. The Supreme Court itself had measured a state law against a state constitution in Cooper v. Telfair, 4 U.S. (4 Dall.) 14 (1800), and had struck down another under the supremacy clause in Ware v. Hylton, 3 U.S. (3 Dall.) 199 (1796); in both cases the power of judicial review was expressly affirmed. Even Acts of Congress had been struck down by federal circuit courts, and the Supreme Court had reviewed the constitutionality of a federal statute in Hylton v. United States, 3 U.S. (3 Dall.) 171 (1796). Justice James Iredell had expressly asserted this power both in Chisholm v. Georgia, 2 U.S. (2 Dall.) 419 (1793), and in Calder v. Bull, 3 U.S. (3 Dall.) 386 (1798), and [Justice] Chase had acknowledged it in Cooper. In the [Consitutional] Convention, moreover, both proponents and opponents fo the proposed Council of Revision had recognized that the courts would review the validity of congresssional legislation, and Alexander Hamilton had proclaimed the same doctrine in The Federalist.

F. Also, I'll note the following from A. Bickel, The Least Dangerous Branch 15-16 (1965):

[It] is as clear as such matters can be that the Framers of the Constitution specifically expected that the federal courts would assume a power -- of whatever exact dimensions --to pass on the constitutionality of actions of the Congress and the President, as well as of the several states. Moreover, not even a colorable showing of decisive historical evidence to the contrary can be made. Nor can it be maintained that the language of the Constitution is compelling the other way.

(NOTE: In writing these points, particularly the overview of some of the history of judicial review, I've relied on numerous sources beyond the original sources linked above. I wouldn't claim to have known all of the above off the top of my head.)

3. The power of a single U.S. District Court Judge to issue an injunction against an unconstitutional law is not only constitutional and not undemocratic, but is also expressly approved by Congress -- dating back to the Founders themselves.

Rule 65 of the Federal Rules of Civil Procedure (FRCP) provides U.S. District Courts with the power to issue injunctions. The Congress has authorized the federal judiciary to prescribe the rules of practice, procedure, and evidence for the federal courts, subject to the ultimate legislative right of the Congress to reject, modify, or defer any of the rules. The authority and procedures for promulgating rules are set forth in the Rules Enabling Act, 28 U.S.C. §§ 2071-2077. The FRCP are promulgated by the United States Supreme Court pursuant to the Rules Enabling Act, and then approved by the United States Congress. The Court's modifications to the rules are usually based upon recommendations from the Judicial Conference of the United States, the federal judiciary's internal policy-making body. See, e.g., Administrative Office of the U.S. Courts, The Federal Rules of Practice and Procedure (Oct. 2010); Wikipedia: Federal Rules of Civil Procedure.

The Judiciary Act of 1793, passed by the Second U.S. Congress, included the power of federal courts to issue injunctions. See, e.g., Text of Judiciary Act of 1793; Wikipedia: Judiciary Act of 1793. Section 5 of the Act specifically provides for a single judge to issue injunctions. Even prior to the act, U.S. District Court judges already had injunctive power, adopted from English common law. [I'll fill this in more later if you really wish to contest the point.]

[The Cat-Tribe]

This only holds weight in the jurisdiction, and there are 14 other challenges to the law.

If only one of the courts rules otherwise, it is very probable it will be appealed.

True. This is the first court to rule directly on the matter.

Of course, the inability of any of the "OMG its unconstitutional!" crowd to make a coherent argument as to how or why it is unconstitutional (and I include in that the briefs I have read in several of those other cases) doesn't exactly lead one to believe it is likely to be held unconstitutional.

[The Cat-Tribe]

*sigh*

I don't like your tone, boy.

Ignoring for the moment that you failed completely to address any of the reasoning of the District Court or the long-standing caselaw on which it was based:

I started to in my subsequent post. This started with the Wickard case. That case was wrongly decided by a court threatened by the Roosevelt administration's court packing plan and needs to be overturned. The idea behind the ruling in that case was that if one man was permitted to exceed the wheat production limits on his own land for personal consumption he would not need to buy wheat from other producers and would have a negative effect on interstate commerce. An effect they made no attempt to quantify or calculate.

Besides, the legal basis for the case, Gibbon v Ogden really was a matter of interstate commerce. At issue was access to waterways that formed and crossed state borders. That's interstate commerce because there are transactions between parties in multiple states.

It did not mean that someone choosing not to engage in commerce of any kind was subject to regulation and penalty under the Commerce Clause because they weren't doing their patriotic duty in buying American made merchandise or some bullshit like that.

Please explain how making economic decisions that substantially affects interstate commerce is NOT subject to regulation under the Commerce Clause.

"To regulate commerce with foreign nations, and among the several states, and with the Indian tribes" means regulating trade done between people within the US and foreign entities, trade between that crosses state lines, and trade with Native American tribes. If there is no transaction, especially if there is no transaction that crosses state lines, then it falls to the state or local government to regulate the activity, product, etc. It does not mean that a cancer patient that grows their own marijuana for personal consumption in the state of California should be subject to federal bans on the substance.

Please explain how seeking medical treatment and paying for it by whatever means -- whether it be private insurance, public assistance, or personal savings is NOT subject to regulation under the Commerce Clause. (And don't try to claim that, simply because one is not at this very instant seeking medical treatment, they will never seek medical treatment and/or their economic decisions about how to pay for medical treatment will not affect interstate commerce.)

If you don't cross state lines to seek medical treatment you are engaging in intrastate commerce. If you argue that everything, even simply living, substantially affects interstate commerce then the Commerce Clause can be used by the feds to regulate, mandate, or ban anything, anywhere, anytime. It defeats the purpose of state and local governments and grants the feds unlimited power to do most anything, even telling you what brand of car to own or what foods to eat.

Remember that the Interstate Commerce Clause exists to define the authority of the States and Federal governments and limit the reach of the feds to interstate matters.

And I don't like your tone, your convenient failure to reply to my post concerning your Wickard silliness (which you now repeat), or your complete misunderstanding of the Commerce Clause, sparky.

RL calls at the moment. I'll try to educate you on some basic consitutional law when I return.

[Les Drapeaux Brulants]

Also for the nth time, the Democrats don't have a sufficient majority.
...
EDIT: Prime example of a majority being insufficient: Don't Ask, Don't Tell repeal. Failed to overcome a Republican filibuster with the final vote being 56-43. 56 Senators - a clear majority - voted to allow the bill to come to a vote, but the incredibly recalcitrant GOP was able to prevent it even though they're the minority.

Then the Democrats need to start building a consensus. It's called governing. Instead, they want to redefine bi-partisan as being in total agreement with whatever the majority party proposes.

[Caninope]

This only holds weight in the jurisdiction, and there are 14 other challenges to the law.

If only one of the courts rules otherwise, it is very probable it will be appealed.

True. This is the first court to rule directly on the matter.

Of course, the inability of any of the "OMG its unconstitutional!" crowd to make a coherent argument as to how or why it is unconstitutional (and I include in that the briefs I have read in several of those other cases) doesn't exactly lead one to believe it is likely to be held unconstitutional.

I do believe it's an overstep of the commerce clause, but I'm not gonna try and argue that with you right now for 2 reasons: I don't want to go sifting through decades of law concerning this, and the current briefs, and I don't really want to argue with someone I know I won't be able to change their opinion.

I'm sure you can agree with the second reason.

[Ashmoria]

Also for the nth time, the Democrats don't have a sufficient majority.
...
EDIT: Prime example of a majority being insufficient: Don't Ask, Don't Tell repeal. Failed to overcome a Republican filibuster with the final vote being 56-43. 56 Senators - a clear majority - voted to allow the bill to come to a vote, but the incredibly recalcitrant GOP was able to prevent it even though they're the minority.

Then the Democrats need to start building a consensus. It's called governing. Instead, they want to redefine bi-partisan as being in total agreement with whatever the majority party proposes.

oh dont be disingenuous.

when ONE senator can stop a bill its silly to talk about consensus. when obstructed and fillibustered bills end up passed with massive republican agreement, its silly to suggest that the problem is with the democrats.

of course there will always be bills that the republican caucus will strongly oppose. when they go back to just obstructing THOSE bills and those bills alone we can talk about the need for democrats to be more reasonable.

[Juristonia]

oh dont be disingenuous.

when ONE senator can stop a bill its silly to talk about consensus. when obstructed and fillibustered bills end up passed with massive republican agreement, its silly to suggest that the problem is with the democrats.

of course there will always be bills that the republican caucus will strongly oppose. when they go back to just obstructing THOSE bills and those bills alone we can talk about the need for democrats to be more reasonable.

Oh, come on. It's not like they're purposely trying to block everything the dems do for no other reason then to block it.



http://www.huffingtonpost.com/2010/10/08/joe-miller-mcconnell-is-o_n_755588.html

[Bluth Corporation]

That's what they did with car insurance.

Except that's a state law, not federal.

Furthermore, the mandate in this case is not insurance on your own vehicle, but liability insurance for the damage you do to others. The "health insurance" mandate is more akin to the former than the latter.

Not to mention that the liability insurance mandate is a condition of operating a motor vehicle, while the health insurance mandate is a condition of simply being alive. The two are hardly comparable.

[Bluth Corporation]

1. The Constitution requires the judiciary to exercise the power of judicial review and declare void any properly challenged law that would violate the Constitution. See generally Article III and Article VI of the U.S. Constitution.
[spoiler]Chief Justice Marshall explained this duty at length in the seminal case of Marbury v. Madison, 5 U.S. 137 (1803). The unanimous Court in Marbury declared: "It is emphatically the province and the duty of the judicial department to say what the law is" and "an act of the legislature repugnant to the constitution is void." Thus, the courts must void any law that violates the Constitution.

That's nice, but how does it have to do with what I said?

Claiming the Supreme Court has the power/obligation to invalidate laws at odds with the Constitution (which isn't terribly controversial) is not the same as claiming it has the authority to determine what the Constitution actually says.

Furthermore, your argument ultimately rests on "The Constitution gives the courts this power because the courts claim the Constitution gives them this power." Regardless of whether or not one believes that the courts do have that power, that is hardly a valid argument. There are plenty of good arguments as to why the Supreme Court possesses the authority and obligation to invalidate unconstitutional laws. I happen to agree with them. But that's not the same as claiming it has the authority to determine what the Constitution actually says. That is metaphysically independent of anyone's fiat--yours, mine, or any court's.

[Ashmoria]

oh dont be disingenuous.

when ONE senator can stop a bill its silly to talk about consensus. when obstructed and fillibustered bills end up passed with massive republican agreement, its silly to suggest that the problem is with the democrats.

of course there will always be bills that the republican caucus will strongly oppose. when they go back to just obstructing THOSE bills and those bills alone we can talk about the need for democrats to be more reasonable.

Oh, come on. It's not like they're purposely trying to block everything the dems do for no other reason then to block it.



http://www.huffingtonpost.com/2010/10/08/joe-miller-mcconnell-is-o_n_755588.html

oh what was i thinking! of course not.

[Les Drapeaux Brulants]

Then the Democrats need to start building a consensus. It's called governing. Instead, they want to redefine bi-partisan as being in total agreement with whatever the majority party proposes.

oh dont be disingenuous.

when ONE senator can stop a bill its silly to talk about consensus. when obstructed and fillibustered bills end up passed with massive republican agreement, its silly to suggest that the problem is with the democrats.

of course there will always be bills that the republican caucus will strongly oppose. when they go back to just obstructing THOSE bills and those bills alone we can talk about the need for democrats to be more reasonable.

This is exactly the problem -- When they start agreeing with us, we'll quit calling them obstructionists. No matter that the problem is universally unpopular and poorly debated legislation.

[Caninope]

1. The Constitution requires the judiciary to exercise the power of judicial review and declare void any properly challenged law that would violate the Constitution. See generally Article III and Article VI of the U.S. Constitution.
[spoiler]Chief Justice Marshall explained this duty at length in the seminal case of Marbury v. Madison, 5 U.S. 137 (1803). The unanimous Court in Marbury declared: "It is emphatically the province and the duty of the judicial department to say what the law is" and "an act of the legislature repugnant to the constitution is void." Thus, the courts must void any law that violates the Constitution.

That's nice, but how does it have to do with what I said?

Claiming the Supreme Court has the power/obligation to invalidate laws at odds with the Constitution (which isn't terribly controversial) is not the same as claiming it has the authority to determine what the Constitution actually says.

Furthermore, your argument ultimately rests on "The Constitution gives the courts this power because the courts claim the Constitution gives them this power." Regardless of whether or not one believes that the courts do have that power, that is hardly a valid argument. There are plenty of good arguments as to why the Supreme Court possesses the authority and obligation to invalidate unconstitutional laws. I happen to agree with them. But that's not the same as claiming it has the authority to determine what the Constitution actually says. That is metaphysically independent of anyone's fiat--yours, mine, or any court's.

The only caveat being that the courts are the only ones who hold legal weight under the law.

[Sibirsky]

Wonderful. Why don't they mandate people buy from me?

[The Cat-Tribe]

True. This is the first court to rule directly on the matter.

Of course, the inability of any of the "OMG its unconstitutional!" crowd to make a coherent argument as to how or why it is unconstitutional (and I include in that the briefs I have read in several of those other cases) doesn't exactly lead one to believe it is likely to be held unconstitutional.

I do believe it's an overstep of the commerce clause, but I'm not gonna try and argue that with you right now for 2 reasons: I don't want to go sifting through decades of law concerning this, and the current briefs, and I don't really want to argue with someone I know I won't be able to change their opinion.

I'm sure you can agree with the second reason.

I can understand both reasons. One has to be in the right mood (and of the right inclination) to want to do both before engaging in such a debate.

We can simply agree to disagree. Just refrain (as you have) from making sweeping statements about the "unbelievable stupidity" of this particular District Court opinion.

[The Cat-Tribe]

1. The Constitution requires the judiciary to exercise the power of judicial review and declare void any properly challenged law that would violate the Constitution. See generally Article III and Article VI of the U.S. Constitution.
[spoiler]Chief Justice Marshall explained this duty at length in the seminal case of Marbury v. Madison, 5 U.S. 137 (1803). The unanimous Court in Marbury declared: "It is emphatically the province and the duty of the judicial department to say what the law is" and "an act of the legislature repugnant to the constitution is void." Thus, the courts must void any law that violates the Constitution.

That's nice, but how does it have to do with what I said?

Claiming the Supreme Court has the power/obligation to invalidate laws at odds with the Constitution (which isn't terribly controversial) is not the same as claiming it has the authority to determine what the Constitution actually says.

Furthermore, your argument ultimately rests on "The Constitution gives the courts this power because the courts claim the Constitution gives them this power." Regardless of whether or not one believes that the courts do have that power, that is hardly a valid argument. There are plenty of good arguments as to why the Supreme Court possesses the authority and obligation to invalidate unconstitutional laws. I happen to agree with them. But that's not the same as claiming it has the authority to determine what the Constitution actually says. That is metaphysically independent of anyone's fiat--yours, mine, or any court's.

Either you didn't read all (or even much beyond the first couple sentences) of what I posted or you are being disingenuous. (I admit that, because I was using recycled material, my headings may have emphasized the duty to invalidate over the authority to interpret, but both were there in the actual substance of what I posted.)

The Constitution itself and the writings of the authors of the Constitution make clear the Supreme Court has the ultimate authority to determine what the Constitution actually says (subject only to the checks and balances provided within the Constitution itself).

I did not cite SCOTUS alone for this -- although Marbury (if one reads it) explains how this follows directly from the Constitution -- but cited at length the relevant provisions of the Constitution, Federalist #78, English law preceding the Constitution and adopted by the Founders, Acts of Congress, scholary works, etc.

If you truly dispute the point -- despite the clear mandate of the Constitution itself -- what evidence would you accept?

Your last sentence is pure "nonsense on stilts" -- to borrow a phrase crudely out-of-context. Rights or ethics may (or may not) be "metaphysically independent of anyone's fiat," but the Constitution is a man-made legal document. There are different schools of thought on how it should best be interpreted, but all agree the text is primary. The meaning is not some Platonic ideal floating in the ether. Similarly, the authority to interpret the document comes from the document (and, to the extent necessary, the same sources of authority that created the document) -- both of which clearly endow the U.S. Supreme Court with the ultimate authority over the meaning of the document as written. (It can, of course, be amended via the process set forth in the Constitution to change or add to the document.)

[The Cat-Tribe]

Wonderful. Why don't they mandate people buy from me?

Gee. what a great constitutional argument. I just need a little, tiny bit of clarification:

1. Which part of the Constitution does the Health Care Reform Act violate based on your argument? Why?
2. The District Court's independent grounds for upholding the Act are all wrong based on this point because .....?

[Occupied Deutschland]

I could see this being constitutional in the eyes of the interstate commerce clause.
But I have one problem.
There isn't interstate commerce in health-care.
You can't go outside of your state for health-insurance and you only have a limited amount of choice in which hospital you actually go to.

[Caninope]

That's nice, but how does it have to do with what I said?

Claiming the Supreme Court has the power/obligation to invalidate laws at odds with the Constitution (which isn't terribly controversial) is not the same as claiming it has the authority to determine what the Constitution actually says.

Furthermore, your argument ultimately rests on "The Constitution gives the courts this power because the courts claim the Constitution gives them this power." Regardless of whether or not one believes that the courts do have that power, that is hardly a valid argument. There are plenty of good arguments as to why the Supreme Court possesses the authority and obligation to invalidate unconstitutional laws. I happen to agree with them. But that's not the same as claiming it has the authority to determine what the Constitution actually says. That is metaphysically independent of anyone's fiat--yours, mine, or any court's.

Either you didn't read all (or even much beyond the first couple sentences) of what I posted or you are being disingenuous. (I admit that, because I was using recycled material, my headings may have emphasized the duty to invalidate over the authority to interpret, but both were there in the actual substance of what I posted.)

The Constitution itself and the writings of the authors of the Constitution make clear the Supreme Court has the ultimate authority to determine what the Constitution actually says (subject only to the checks and balances provided within the Constitution itself).

I did not cite SCOTUS alone for this -- although Marbury (if one reads it) explains how this follows directly from the Constitution -- but cited at length the relevant provisions of the Constitution, Federalist #78, English law preceding the Constitution and adopted by the Founders, Acts of Congress, scholary works, etc.

If you truly dispute the point -- despite the clear mandate of the Constitution itself -- what evidence would you accept?

Your last sentence is pure "nonsense on stilts" -- to borrow a phrase crudely out-of-context. Rights or ethics may (or may not) be "metaphysically independent of anyone's fiat," but the Constitution is a man-made legal document. There are different schools of thought on how it should best be interpreted, but all agree the text is primary. The meaning is not some Platonic ideal floating in the ether. Similarly, the authority to interpret the document comes from the document (and, to the extent necessary, the same sources of authority that created the document) -- both of which clearly endow the U.S. Supreme Court with the ultimate authority over the meaning of the document as written. (It can, of course, be amended via the process set forth in the Constitution to change or add to the document.)

The writings of the primary author (supposedly) also say the states have the power to nullify unconstitutional law.

Yes, I am referring to the Virginia Resolution. I think the writings of the founding fathers can be used both ways. Not that I am against judicial review just thought that's worth pointing out.

Most likely because I already mentioned it earlier.

[Caninope]

I could see this being constitutional in the eyes of the interstate commerce clause.
But I have one problem.
There isn't interstate commerce in health-care.
You can't go outside of your state for health-insurance and you only have a limited amount of choice in which hospital you actually go to.

The court has upheld the idea that if anything can rationally influence interstate commerce, it's constitutional to regulate.

[Buffett and Colbert]

Heh, I like the term "metaphysical gymnastics."

[Occupied Deutschland]

I could see this being constitutional in the eyes of the interstate commerce clause.
But I have one problem.
There isn't interstate commerce in health-care.
You can't go outside of your state for health-insurance and you only have a limited amount of choice in which hospital you actually go to.

The court has upheld the idea that if anything can rationally influence interstate commerce, it's constitutional to regulate.

Wait, so their just giving themselves a free entrance by saying that if it "could" influence interstate commerce they can regulate it? That seems...cheap.