Obamacare Insurance Mandate Ruled Constitutional

[Buffett and Colbert]

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.

No, there's a difference. In fact, this ruling states that "metaphysical gymnastics" cannot be used to determine if a law affects interstate commerce (although in a slightly different context). In United States v. Lopez, SCOTUS ruled that all the inferences the government made about how possessing a gun in a school affects commerce don't add up to a valid argument. But in the case of the healthcare act, refraining from purchasing insurance does actively affect commerce.

The health care market is unlike other markets. No one can guarantee his or her health, or ensure that he or she will never participate in the health care market. Indeed, the opposite is nearly always true. The question is how participants in the health care market pay for medical expenses - through insurance, or through an attempt to pay out of pocket with a backstop of uncompensated care funded by third parties. This phenomenon of costshifting is what makes the health care market unique. Far from “inactivity,” by choosing to forgo insurance plaintiffs are making an economic decision to try to pay for health care services later, out of pocket, rather than now through the purchase of insurance, collectively shifting billions of dollars, $43 billion in 2008, onto other market participants. As this cost-shifting is exactly what the Health Care Reform Act was enacted to address, there is no need for metaphysical gymnastics of the sort proscribed by Lopez.

[Caninope]

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.

It has to be rational.

US v Lopez illustrated that not everything affected interstate commerce.

[The Cat-Tribe]

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.

1. Whether the States have the power of nullification isn't particularly relevant to whether the Judiciary has the authority to interpret the Constitution.

2. After the not-as-clear-as-you-imply Virginia Resolution was passed in 1798, the the Virginia General Assembly passed the Report of 1800, a document by James Madison affirming the principles of the Resolutions and responding to criticism they had received. In it, Madison denies that the declaration was an act of nullification (or even of authoritative interpretation of the Constitution) (emphasis added):

It has been said, that it belongs to the judiciary of the United States, and not the state legislatures, to declare the meaning of the Federal Constitution.

But a declaration that proceedings of the Federal Government are not warranted by the Constitution, is a novelty neither among the citizens, nor among the legislatures of the states; nor are the citizens or the legislature of Virginia, singular in the example of it.

Nor can the declarations of either [the citizens or the legislature of Virginia], whether affirming or denying the constitutionality of measures of the Federal Government, or whether made before or after judicial decisions thereon, be deemed, in any point of view, an assumption of the office of the judge. The declarations, in such cases, are expressions of opinion, unaccompanied with any other effect than what they may produce on opinion, by exciting reflection. The expositions of the judiciary, on the other hand, are carried into immediate effect by force. The former may lead to a change in the legislative expression of the general will; possibly to a change in the opinion of the judiciary; the latter enforces the general will, whilst that will and that opinion continue unchanged.

And if there be no impropriety in declaring the unconstitutionality of proceedings in the Federal Government, where can be the impropriety of communicating the declaration to other states, and inviting their concurrence in a like declaration? What is allowable for one, must be allowable for all; and a free communication among the states, where the Constitution imposes no restraint, is as allowable among the state governments as among other public bodies or private citizens. This consideration derives a weight, that cannot be denied to it, from the relation of the state legislatures to the federal legislature, as the immediate constituents of one of its branches.

3. James Madison made it abundantly clear throughout the rest of his writings that he vehemently opposed the idea of state nullification and the Virginia Resolution was never intended as an act of nullification. See, e.g.:

• James Madison to Mathew Carey, July 27, 1831 ("to appeal to the nature of the Constitutional compact, as precluding a right in any one of the parties to renounce it at will, by giving to all an equal right to judge of its obligations; and, as the obligations are mutual, a right to enforce correlative with a right to dissolve them; to make manifest the impossibility as well as injustice, of executing the laws of the Union, particularly the laws of commerce, if even a single State be exempt from their operation; to lay open the effects of a withdrawal of a Single State from the Union on the practical conditions & relations of the others; thrown apart by the intervention of a foreign nation; to expose the obvious, inevitable & disastrous consequences of a separation of the States, whether into alien confederacies or individual nations; these are topics which present a task well worthy the best efforts of the best friends of their country')
• James Madison to Nicholas P. Trist, December, 1831 (refers to misrepresentations of the Virginia Resolutions, explains the Judiciary is the ultimate authority on the meaning of the Constitution, and vehemently rejects nullifcation -- including saying: "With respect to the supremacy of the Judicial power on questions occurring in the course of its functions, concerning the boundary of Jurisdiction between the U. S. & individual States, my opinion in favor of it was as the 41 No. of the Federalist shews, of the earliest date; and I have never ceased to think that this supremacy was a vital principle of the Constitution as it is a prominent feature in its text. A supremacy of the Constitution & laws of the Union, without a supremacy in the exposition & execution of them, would be as much a mockery as a scabbard put into the hand of a Soldier without a sword in it. I have never been able to see, that without such a view of the subject the Constitution itself could be the supreme law of the land; or that the uniformity of the Federal Authority throughout the parties to it could be preserved; or that without this uniformity, anarchy & disunion could be prevented.")
• James Madison to Nicholas P. Trist, December 23, 1832 (arguing against nullification and secession and the misuse of the Virginia and Kentucky Resolutions to support such causes)
• James Madison, December, 1834. Notes, On Nullification (arguing at length against the idea of nullification and specifically against the idea that the Virginia Resolution was precedent for nullification).

[Bottle]

You really should get paid for all the schooling you provide, Cat.

[Buffett and Colbert]

You really should get paid for all the schooling you provide, Cat.

I take notes like a student.

[New Chalcedon]

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.

Nice idea. However, they're trying that - and the Republican response is to vote against bills they proposed three and four years ago, and openly declare their intention to bring Congress to a halt - note McConnell's statement that even if Democrats compromise, he won't. Awfully dictatorial for the bloody MINORITY party, isn't he?

[New Chalcedon]

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.

I believe that the thrust of the reasoning (TCT, please correct me if I'm wrong) is that healthcare is sufficiently likely to be done across state borders that the Federal Government has a rational cause to regulate it under the relevant clause of the Constitution.

[MisanthropicPopulism]

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.

I believe that the thrust of the reasoning (TCT, please correct me if I'm wrong) is that healthcare is sufficiently likely to be done across state borders t

Most people buy insurance from huge conglomerates that operate nation wide.

[Caninope]

snip

I probably overstepped what I said here- a writing of Madison's supports state nullification. IIRC, it was Jefferson who went more over the edge.

And I realize it has nothing to do with it. Just trying to prove that the founding fathers shouldn't really be a deciding factor in the legal basis(es) of decisions, considering how varied the opinions were of not just the founding fathers, but variances within their own writings.

[Caninope]

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.

I believe that the thrust of the reasoning (TCT, please correct me if I'm wrong) is that healthcare is sufficiently likely to be done across state borders that the Federal Government has a rational cause to regulate it under the relevant clause of the Constitution.

More likely that most healthcare companies operate across state borders.

[Nazi Flower Power]

I believe that the thrust of the reasoning (TCT, please correct me if I'm wrong) is that healthcare is sufficiently likely to be done across state borders that the Federal Government has a rational cause to regulate it under the relevant clause of the Constitution.

More likely that most healthcare companies operate across state borders.

I was thinking it was more like if you are on vacation and you have an emergency, like a heart attack or something, the local hospitals are required to treat you. They can't turn you away and send you back to your own state.

[Scottorum]

Health-Insurance can't be purchased across the state borders though, and that is what the challenge to the mandate was - forcing people to buy insurance when it wasn't a national level market.

[The Cat-Tribe]

snip

I probably overstepped what I said here- a writing of Madison's supports state nullification. IIRC, it was Jefferson who went more over the edge.

And I realize it has nothing to do with it. Just trying to prove that the founding fathers shouldn't really be a deciding factor in the legal basis(es) of decisions, considering how varied the opinions were of not just the founding fathers, but variances within their own writings.

I essentially with the second point -- which is one of the reasons why the originalist school of thought is absurd. Although some writings of the Founders are more relevant than others. The Federalist Papers, for example, are both regarded as and rationally defenfensible as more authoritative about the meaning of provisions of the Constitution than other writings or statements of the Founders.

Hence, my citing (and emphasis in responding to Bluth that I had cited) the text of the Constitution itself, Federalist #78, English law preceding the Constitution and adopted by the Founders, Acts of Congress, scholary works, etc. -- as well as SCOTUS precedent dating back to the start of the Republic.

[Wilgrove]

Like I said, Cat Tribe, I am a Conservative of Lesser Intellect than A Liberal Progressive, so I'm going to let THIS do the talking for me.

(OOC: I believe we are posting with great rapidity so our repsonses to our statements may be delayed and overlapped)

So, you're going to let someone else, an obviously biased Conservative at that, do your talking and thinking for you.

Why am I not surprised?

[Buffett and Colbert]

Health-Insurance can't be purchased across the state borders though, and that is what the challenge to the mandate was - forcing people to buy insurance when it wasn't a national level market.

It doesn't have to be. Purely local aspects of commerce fall under the jurisdiction of the Commerce Clause.

The Constitution grants Congress the authority to “regulate Commerce... among he several States....” U.S. Const. art. I, § 8, cl. 3. In the body of jurisprudence interpreting the Commerce Clause, the Supreme Court has set out a three-prong analysis to determine if a federal law properly falls within this enumerated grant of authority. This inquiry presumes that Congress may regulate: (1) “the use of the channels of interstate commerce,” such as regulations covering the interstate shipment of stolen goods; (2) to protect “the instrumentalities of interstate commerce, or persons or things in interstate commerce,” such as legislation criminalizing the destruction of aircraft and theft from interstate commerce; and (3) “those activities that substantially affect interstate commerce.” United States v. Lopez , 514 U.S. 549, 558-59 (1995); see also, Perez v. United States, 402 U.S. 146, 150 (1971). It is the last category, which deals with local activities that in themselves do not participate in interstate commerce, but which nonetheless “substantially affect” interstate commerce, which is the focus of this case.

“In assessing the scope of Congress’ authority under the Commerce Clause,” the court’s task “is a modest one.” Gonzalez v. Raich, 545 U.S. 1, 22 (2005). The court need not itself determine whether the regulated activities, “taken in the aggregate, substantially affect interstate commerce in fact, but only whether a ‘rational basis’ exists for so concluding.” Id.

The Supreme Court has expanded the reach of the Commerce Clause to reach purely local, non-commercial activity, simply because it is an integral part of a broader statutory scheme that permissibly regulates interstate commerce. Two cases, decided sixty years apart, demonstrate the breadth of the Commerce power and the deference accorded Congress’s judgments.

In Wickard v. Filburn, 317 U.S. 111 (1942), the Supreme Court upheld a penalty on wheat grown for home consumption despite the farmer’s protest that he did not intend to put the commodity on the market. For purposes of Congress invoking its Commerce Clause power, the Court held it was sufficient that the existence of home-grown wheat, in the aggregate, could “suppl[y] a need of the man who grew it which would otherwise be reflected by purchases in the open market,” thus undermining the efficacy of the federal price stabilization scheme. Id. at 128. The Supreme Court’s decision in Gonzales v. Raich, handed down in 2005, also supports the notion that the Commerce Clause affords Congress broad power to regulate even purely local matters that have substantial economic
effects. There, the Supreme Court sustained Congress’s authority to prohibit the possession of home-grown marijuana intended solely for personal use. The Controlled Substances Act “regulates the production, distribution, and consumption of commodities for which there is an established, and lucrative, interstate market.” Raich, 545 U.S. at 26. The restriction on home-grown marijuana for personal use was essential to the Act’s broader regulatory scheme. In both Wickard and Raich, the Supreme Court sustained Congress’s power to impose obligations on individuals who claimed not to participate in interstate commerce, because those obligations were components of broad schemes regulating interstate commerce.

[Fanaglia]

Of course a John Roberts court found it constitutional

[Occupied Deutschland]

Like I said, Cat Tribe, I am a Conservative of Lesser Intellect than A Liberal Progressive, so I'm going to let THIS do the talking for me.

(OOC: I believe we are posting with great rapidity so our repsonses to our statements may be delayed and overlapped)

So, you're going to let someone else, an obviously biased Conservative at that, do your talking and thinking for you.

Why am I not surprised?

Dude, he's going to someone else who has studied law for the last who knows how many years for clarification. It's specialization, and it's essentially what has allowed the human race to thrive (besides opposable thumbs).

[Buffett and Colbert]

Of course a John Roberts court found it constitutional

We're not talking about the Supreme Court, so you've just proven:

a) Your knee jerk reaction to court decisions you don't like
b) Your ignorance of the law
c) That you haven't even read the court Order

[Orlkjestad]

I have no real comments on its constitutionality, but big props for basically getting to where we were in 1911, Americans.

Drinking tea in Edwardian suits aboard a showboat?

[Buffett and Colbert]

So, you're going to let someone else, an obviously biased Conservative at that, do your talking and thinking for you.

Why am I not surprised?

Dude, he's going to someone else who has studied law for the last who knows how many years for clarification. It's specialization, and it's essentially what has allowed the human race to thrive (besides opposable thumbs).

I wanted to stop at "The verb regulate literally means..." but I finished the paragraph and my fears were confirmed with "In none of these five dictionaries does the verb to regulate include the meaning of forcing someone to engage in an activity." His argument is completely disingenuous.

[The Floridian Coast]

I think healthcare for profit is a disgusting and inhuman system even under the best circumstances. "Obamacare" is a very, very slight step forward.

Since conservatives are gearing up for a long, dragged out fight against this, I think it's time liberals and progressives get ready too, for taking this to the next step.

[The Cat-Tribe]

Health-Insurance can't be purchased across the state borders though, and that is what the challenge to the mandate was - forcing people to buy insurance when it wasn't a national level market.

The highlighted is often stated, but I have never seen any definitive proof that this is true and my own experience is to the contrary. For many years, as an employee of a national law firm's office in San Diego, California, my health insurance was through Blue Shield of Massachusetts. (There may be explanations for this that square with the repeated "can't purchase across state lines" dogma, but, having never heard the basis for that dogma, I can't judge.)

Can someone provide objective authority re insurance being restricted by state in every state?

Regardless, even if that is true. Healthcare and health insurance are clearly matters (1) of interstate commerce and/or (2) substantially affecting interstate commerce. Almost all "state" insurance companies are branches of national companies. Many companies at least claim (or are alleged) to offer multi-state insurance policies. Medical goods flow through the stream of commerce throughout the land. Medical services flow through the stream of commerce throughout the land.

The notion that either health care or health insurance is (1) not economic or commercial, (2) wholly intrastate, and (3) does not substantially affect interstate commerce is laughable on its face.

It is at least theoretically arguable (as the plaintiffs did in the case that spurred this thread) that the failure to buy insurance is a passive inactivity that is not part of interstate commerce. That argument fails due to the actual formal definitions of the Commerce Clause AND (independently) the reality of the healthcare industry. But arguing that the healthcare industry or the insurance industry are not engaged in interstate commerce is farcical -- and either disingenuous or based in ignorance.

[Barringtonia]

I don't like your tone, boy.

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.

Given his very sig is a misrepresentation, it's hardly surprising his argument is,

Like, you are so right, man. Everything is an inside job. 9/11, the Kennedy assassination, the fucking Cold War. It's all a conspiracy.

Technically they are, 9/11 was a conspiracy by a group of terrorists to bring down the two towers etc.,

Just because it's not stated policy doesn't mean people had no intent.

Was the intent to bring the financial system to its knees, no, but everyone knew what was happening.

Analysts were told to place buy ratings on vehicles they didn't understand or they'd lose business
Regulators were told to back off interfering in markets,
Outright fraud occurred
Traders knowingly indulged in behaviour they knew to be damaging and unethical.
Regulators were placed there by the very industry they were supposed to regulate.

This describes Enron as much as the '08 meltdown.

They knew they could keep generating fees and not bear the responsibility.

It's astounding that people think less regulation is the solution given a lack of regulation is fundamental to allowing this to happen. Whether this means the department responsible is headed by someone placed there by the industry, whether it's George W. Bush pushing for Ken Lay to head the Dept. of Energy given the highest campaign funds came from Enron, or the multitude of ex-GS personnel running the Fed..

Same with the food industry, the regulators are the business. Hence 'organic' is defined as 'access to open air', which can mean a cat-flap on an industrial factory farm.

You can dismiss this with strawmen over what a conspiracy is but, frankly, where it's knowingly indulging in repeat behaviour until it crashes, perhaps we just call it strategy then.

I'm speaking to conspiracy over 'inside job' here, that just because the government isn't involved doesn't mean people don't conspire to game a system,

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[The Cat-Tribe]

So, you're going to let someone else, an obviously biased Conservative at that, do your talking and thinking for you.

Why am I not surprised?

Dude, he's going to someone else who has studied law for the last who knows how many years for clarification. It's specialization, and it's essentially what has allowed the human race to thrive (besides opposable thumbs).

Although I disagree with Wilgrove's ridiculing someone for relying on a source (which I think should be encouraged), I equally disagree with your FALSE statements about the credibility of that source.

Mossat's "source" is an editorial in the Newark-Essex County Conservative Examiner written by Tony Hurlbut. Mr. Hurlbut is not an attorney or someone who has "studied law for the last who knows how many years." Mr. Hurlbut's own biography mentions his "Yale days" and says he is a "serious student of politics and political philosophy," but refers to no actual degrees or credentials of any kind or the study of law. Other sources confirm he has no more than a high school education. He is, however, an Administrator of Conservapedia and working with Andy Schafly on the Conservative Bible Project -- perhaps those make him an authority on issues of constitutional law.

[New Chalcedon]

Dude, he's going to someone else who has studied law for the last who knows how many years for clarification. It's specialization, and it's essentially what has allowed the human race to thrive (besides opposable thumbs).

Although I disagree with Wilgrove's ridiculing someone for relying on a source (which I think should be encouraged), I equally disagree with your FALSE statements about the credibility of that source.

Mossat's "source" is an editorial in the Newark-Essex County Conservative Examiner written by Tony Hurlbut. Mr. Hurlbut is not an attorney or someone who has "studied law for the last who knows how many years." Mr. Hurlbut's own biography mentions his "Yale days" and says he is a "serious student of politics and political philosophy," but refers to no actual degrees or credentials of any kind or the study of law. Other sources confirm he has no more than a high school education. He is, however, an Administrator of Conservapedia and working with Andy Schafly on the Conservative Bible Project -- perhaps those make him an authority on issues of constitutional law.

Or perhaps not.