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(Washington Post)   Conservative legal scholar: We already regulate inactivity, and it's completely Constitutional   (voices.washingtonpost.com) divider line 210
    More: Cool, jurists, "Wait a Minute", gun control, individual mandate, legal residents, necessary and proper clause, Gaddafi  
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3760 clicks; posted to Politics » on 01 Mar 2011 at 3:10 PM (3 years ago)   |  Favorite    |   share:  Share on Twitter share via Email Share on Facebook   more»



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2011-03-01 12:51:01 PM
[popcorn.jpg]
 
2011-03-01 01:05:20 PM
I expect we'll be getting some Deep Thoughts in this thread.
 
2011-03-01 01:07:31 PM
But this guy's a RINO, right?
 
2011-03-01 01:14:46 PM

cameroncrazy1984: But this guy's a RINO, right?


Opposing the Official Party Stance, in favor of one based in reality? He's not even a RINO. He's a marxist plant, and he always has been.
 
2011-03-01 01:14:48 PM

cameroncrazy1984: But this guy's a RINO, right?



If he wasn't before, he is now.
 
2011-03-01 01:27:16 PM
Well yeah. How is this even a question?
 
2011-03-01 01:31:29 PM
"If you can regulate inaction to raise juries, and you can regulate inaction to raise an army, then why isn't there equally an implied power to conscript people to buy insurance, to serve the goal of regulating the interstate insurance market?"

Yeah, but True AmericansTM know that nothing is implied in the Constitution. If it is written there in black and white then it is a rule, if it is not written there in black and white then the Federal Government cannot do it.

Implying is what mamby pamby liberals do, not the Founding Fathers.
 
2011-03-01 02:07:34 PM
This thread won't get a bunch of conservatrolls because it's really hard for them to use the typical attacks when it's one of their own.
 
2011-03-01 02:08:40 PM

cameroncrazy1984: But this guy's a RINO, right?


No, he's a law professor. But in a way, most law profs are kind of like RINOs. Sure, they talk a good game about their "intellectual independence." But when push comes to shove they always follow in line with the rest of the herd, while giving very plausible reasons for going along with said herd that turn out to have more fridge logic than than the Star Wars prequels. (And they tend to be very harsh on any law prof who doesn't go along.) Anyway, back on topic...

Let's compare the military draft and jury service to a mandate to buy health insurance from a private company...

If you don't have the draft, then the president does not have a military to command, the states don't have their militias/National Guard, and the federal government has no way to "provide for the common Defence," "execute the Laws of the Union, suppress Insurrections and repel Invasions." In other words, without a military draft the government lacks something... necessary? proper? to carry out its enumerated powers.

Mandatory jury service is an even easier case. Article III Section 2 states "the Trial of all Crimes . . . shall be by Jury; and such Trial shall be held in the State where the said Crimes shall have been committed." The Fifth Amendment requires everyone accused of a felony to be indicted by a grand jury. The Seventh Amendment provides for the right to trial by jury in all civil cases, and forbids judges from overturning the factual findings of such juries without a sound legal basis. In other words, no mandatory jury service, no courts. Mandatory jury service would be one of those necessary/proper things.

The health insurance mandate? My God, man! You can't expect the federal government to survive for -- lessee, 2011 minus 1789 -- 222 years without the power to force everyone to buy health insurance! How else is Congress going to have the necessary and proper powers to fulfill its Constitutional duty to... to... make us all buy health insurance?

[One_of_these_things_is_not_like_the_others.mp3)

But, I admit, unlike Prof. Hills I don't have a law degree from Harvard or Yale, nor do I teach at a Top 14 Law school. This guy, however, does. So let's hear what he had to say to the United States Senate (as opposed to some wanker from the Post):

5. At the hearing, Professor Dellinger mentioned that Congress had once passed a law requiring individual male citizens to provide themselves with muskets, gear and uniforms of a certain specification. I believe Professor Dellinger was referring to the Militia Act of 1792, which required all able-bodied male citizens, 18 years of age or older, to be enrolled in a militia and provide themselves with certain supplies for that service.

a. Do you believe Congress most likely relied on its Commerce Clause powers in passing that statute?

Congress was relying on its Article I, section 8 power "To provide for organizing, arming, and disciplining, the militia, and for governing such part of them as may be employed in the service of the United States . . . " The militia power, and the duty of a citizen to serve, pre-existed the formation of national government.

b. Do you believe the Militia Act of 1792 would have been a permissible exercise of Congress' authority if it were based solely on Congress' Commerce Clause powers?

It would not.

c. In your testimony, you alluded to jury duty, selective service registration and several other actions the federal government requires of each individual citizen. You described these as traditionally-recognized requirements that were necessary for the continued function of the government itself. In 1792, the United States did not have a permanent standing army. Do you think service in the militia was among those traditionally-recognized requirements necessary for the continued function of government?

Without question, it was considered a fundamental duty of citizenship. Congress is now seeking to add an new and unprecedented duty of citizenship to those which have traditionally been recognized: the duty to engage in economic activity when Congress deems it convenient to its regulation of interstate commerce. And the rationales offered to date for such a duty would extend as well to the performance of any action, whether economic or not, when Congress deems it convenient to the exercise of its power over interstate commerce. The recognition of so sweeping a duty would fundamentally alter the relationship of American citizens to the government of the United States.


/You want extra snark on that popcorn?
 
2011-03-01 02:13:36 PM

cameroncrazy1984: This thread won't get a bunch of conservatrolls because it's really hard for them to use the typical attacks when it's one of their own.


Protip: Just because someone is in your political party doesn't mean they're right.
 
2011-03-01 02:15:29 PM

cameroncrazy1984: This thread won't get a bunch of conservatrolls because it's really hard for them to use the typical attacks when it's one of their own.


heh... and within 60 seconds one did appear opening with an association fallacy followed by a very wordy fallacy of omission by ignoring the first clause of article I section 8 of the Constitution.
 
2011-03-01 02:16:46 PM

MasterThief: The health insurance mandate? My God, man! You can't expect the federal government to survive for -- lessee, 2011 minus 1789 -- 222 years without the power to force everyone to buy health insurance! How else is Congress going to have the necessary and proper powers to fulfill its Constitutional duty to... to... make us all buy health insurance?


The main argument against it is Congress does not have the power to regulate inactivity. Jury duty and the draft are two examples of them having that exact power.
 
2011-03-01 02:21:31 PM

Code_Archeologist: cameroncrazy1984: This thread won't get a bunch of conservatrolls because it's really hard for them to use the typical attacks when it's one of their own.

heh... and within 60 seconds one did appear opening with an association fallacy followed by a very wordy fallacy of omission by ignoring the first clause of article I section 8 of the Constitution.


You need to be a little more specific than that. That clause says a lot of things. Please tell me it's not the "general welfare" argument.
 
2011-03-01 02:23:33 PM
Seriously--what's the debate here? In the breakroom here at work is a poster on workplace rights that employers are required to display. Are people actually claiming that the federal government cannot compel companies to do that? Or pay taxes? Or a thousand other things?
 
2011-03-01 02:26:13 PM
Ryan2065: The main argument against it is Congress does not have the power to regulate inactivity. Jury duty and the draft are two examples of them having that exact power.

Then that is a strawman. Of course Congress can "regulate inactivity" - it can compel people to do some things against their will so that government can function, nobody disputes that. The problem with HCR is that this law compels people to engage in a different activity, one that until now has never been held to be necessary to the functioning of government - commerce. No prior law or court decision has held that Congress has the power to compel commercial activity - the buying of goods and services - even under the most ridiculously expansive definitions of "commerce" from cases like Wickard v. Filburn and the most ass-pulled interpretations of the Necessary and Proper clause. To the extent Prof. Hills doesn't understand or appreciate this, he's missing the point.
 
2011-03-01 02:27:04 PM
i130.photobucket.com
 
2011-03-01 02:35:19 PM

Code_Archeologist: cameroncrazy1984: This thread won't get a bunch of conservatrolls because it's really hard for them to use the typical attacks when it's one of their own.

heh... and within 60 seconds one did appear opening with an association fallacy followed by a very wordy fallacy of omission by ignoring the first clause of article I section 8 of the Constitution.


The first part of that was a joke. You might not be familiar with these. If you're confused, this site provides examples of some, in the form of satirical comments on daily news events.

Nabb1: You need to be a little more specific than that. That clause says a lot of things. Please tell me it's not the "general welfare" argument.


Well, that clause also has the taxing power in it. (C_A loves him some other people's money.)
 
2011-03-01 02:36:41 PM

MasterThief: Ryan2065: The main argument against it is Congress does not have the power to regulate inactivity. Jury duty and the draft are two examples of them having that exact power.

Then that is a strawman. Of course Congress can "regulate inactivity" - it can compel people to do some things against their will so that government can function, nobody disputes that. The problem with HCR is that this law compels people to engage in a different activity, one that until now has never been held to be necessary to the functioning of government - commerce. No prior law or court decision has held that Congress has the power to compel commercial activity - the buying of goods and services - even under the most ridiculously expansive definitions of "commerce" from cases like Wickard v. Filburn and the most ass-pulled interpretations of the Necessary and Proper clause. To the extent Prof. Hills doesn't understand or appreciate this, he's missing the point.


I think that's a very important distinction as well.
 
2011-03-01 02:37:09 PM

Nabb1: Code_Archeologist: cameroncrazy1984: This thread won't get a bunch of conservatrolls because it's really hard for them to use the typical attacks when it's one of their own.

heh... and within 60 seconds one did appear opening with an association fallacy followed by a very wordy fallacy of omission by ignoring the first clause of article I section 8 of the Constitution.

You need to be a little more specific than that. That clause says a lot of things. Please tell me it's not the "general welfare" argument.


Yes, it is the General Welfare argument, an idea which is upheld by the Supreme Court in Helvering v. Davis and South Dakota v. Dole. In the 20th century the definition of Congress' power to pass laws has expanded considerably. And as long as a law passed is for the purpose of promoting the health, safety, or well being of the people then it falls under this rather broad umbrella of power. Hill's essay backs up the method of that regulation by showing that regulating inaction is constitutional.
 
2011-03-01 02:41:04 PM
At some point you farkers are so goddamn stupid you deserve shiatty healthcare.
 
2011-03-01 02:43:57 PM

MasterThief: Then that is a strawman. Of course Congress can "regulate inactivity" - it can compel people to do some things against their will so that government can function, nobody disputes that.


Do you even know what a strawman is? Have you personally been arguing that congress does not have the ability to regulate inactivity? I don't know. Has the right been arguing it? Yes they have. If this article was being written just to you, then yes it would be a strawman. Are you under the impression they wrote it to you and only you?

Here's a quick example of someone saying congress can't regulate inactivity:
Link (new window)

MasterThief: No prior law or court decision has held that Congress has the power to compel commercial activity - the buying of goods and services - even under the most ridiculously expansive definitions of "commerce" from cases like Wickard v. Filburn and the most ass-pulled interpretations of the Necessary and Proper clause. To the extent Prof. Hills doesn't understand or appreciate this, he's missing the point.


Didn't you just talk about a case where the government forced people to buy guns? How can you, in one post, talk about how that doesn't apply and then in the next post say the government has never ever forced people to buy something!
 
2011-03-01 02:46:20 PM

Code_Archeologist: Nabb1: Code_Archeologist: cameroncrazy1984: This thread won't get a bunch of conservatrolls because it's really hard for them to use the typical attacks when it's one of their own.

heh... and within 60 seconds one did appear opening with an association fallacy followed by a very wordy fallacy of omission by ignoring the first clause of article I section 8 of the Constitution.

You need to be a little more specific than that. That clause says a lot of things. Please tell me it's not the "general welfare" argument.

Yes, it is the General Welfare argument, an idea which is upheld by the Supreme Court in Helvering v. Davis and South Dakota v. Dole. In the 20th century the definition of Congress' power to pass laws has expanded considerably. And as long as a law passed is for the purpose of promoting the health, safety, or well being of the people then it falls under this rather broad umbrella of power. Hill's essay backs up the method of that regulation by showing that regulating inaction is constitutional.


In the issue was over Congressional spending. Those cases offer no guidance on this issue.
 
2011-03-01 02:47:28 PM
In those two cases the issue was over Congressional spending.

Honestly, I may as well be working.
 
2011-03-01 02:48:30 PM

MasterThief: Well, that clause also has the taxing power in it. (C_A loves him some other people's money.)


Yep, I do. Because after the gold standard was abolished all money was the state's money, supported and upheld by the trust the world has in our particular state. As such the more stable and trustworthy our state is as an economic power the more the state's money is worth, and by extension the more my money is worth.

Our state was at its height of economic strength, strangely enough, when the gap between the wealthy and the middle class was smaller. So I simply wish us to find our way back to that. One might call me an economic conservative because I want to go back to the tax structure of the 1960's.

:D
 
2011-03-01 02:54:07 PM
The government requires you to buy clothes. Seriously, try going without for a while and see what happens (OK, wait till summer).
 
2011-03-01 03:13:07 PM
You have to laughably stupid to think that our sold out Congress can be trusted with the power to force citizens to purchase whatever their wealthy donor friends would like you to purchase.

*derp* Surely this power would never be misused! *derp* *derp*

This is Patriot Act level stupidity.
 
2011-03-01 03:13:29 PM

Tigger: At some point you farkers are so goddamn stupid you deserve shiatty healthcare.


Wow...you told us alright!
 
2011-03-01 03:16:00 PM
If you like facts and you are Republican you are a RINO. The insurance mandate is not unconstitutional unless many other things are also unconstitutional. Lets make drafts and jury duty unconstitutional from now on. I don't like either of those things.
 
2011-03-01 03:18:09 PM

MasterThief: If you don't have the draft, then the president does not have a military to command,


We don't have a draft right now, and the President does have a military to command, so your first premise is demonstrably false.
 
2011-03-01 03:21:44 PM

BullBearMS: You have to laughably stupid to think that our sold out Congress can be trusted with the power to force citizens to purchase whatever their wealthy donor friends would like you to purchase.

*derp* Surely this power would never be misused! *derp* *derp*

This is Patriot Act level stupidity.


As compared to leaving it the way it was? Really?

Paying more than other countries, large percentages of us unable to afford any care at all -- that's better?
 
2011-03-01 03:22:32 PM
I really hope this guy didn't teach Con Law or Civ Pro at NY.
First, jury duty is considered a "right" not a "duty". Comparing the health law mandate and jury duty is mixing apples with oranges and makes this guy look like an idiot. Secondly, as for the draft analogy, FTA: "commerce clause" or the "necessary and proper clause." The guy just refuted his own farking point.

/Hates bad lawyers.
 
2011-03-01 03:22:58 PM

BullBearMS: You have to laughably stupid to think that our sold out Congress can be trusted with the power to force citizens to purchase whatever their wealthy donor friends would like you to purchase.

*derp* Surely this power would never be misused! *derp* *derp*

This is Patriot Act level stupidity.


The fact that a power can be misused is not a meaningful argument against the use of that power. There is not a single governmental power that could not be "misused." Taxes can be set too high, the draft can be used for unjust and illegal wars, criminal sentences can be too harsh etc. etc. etc.

The defense against misuse of government powers in a democracy is the ballot box (and the courts), not attempting to strip the government of its powers in the first place.
 
2011-03-01 03:23:35 PM

Stylux: First, jury duty is considered a "right" not a "duty".


Jury duty isn't a duty?
 
2011-03-01 03:24:26 PM

Stylux: First, jury duty is considered a "right" not a "duty".


Um, it's called "jury duty"--that might just possibly be a clue to what is wrong with your statement.
 
2011-03-01 03:25:02 PM
shakes tiny fist.
 
2011-03-01 03:25:55 PM

Snot Monster from Outer Space: MasterThief: If you don't have the draft, then the president does not have a military to command,

We don't have a draft right now, and the President does have a military to command, so your first premise is demonstrably false.


Also, if people cannot afford health insurance, they will be too poor to afford medicine and in turn too sick to perform military service. HCR for a more secure future.
 
2011-03-01 03:26:51 PM
I really do think that HCR as written is within Congress's power under its ability to tax, but I don't think that it would have the power under the Commerce Clause. The taxation thing has precedent; Congress required merchant mariners to buy health insurances back in the late 1700s.

What I'd really like to see is a Constitutional amendment specifying that health care is a social right and a social responsibility. The problem is that we'd never get 3/4th's of the states to ratify it.

I really, really wish that the federal government would do exactly what the conservatives in those states want, and stop giving them money, stop helping them, hell, stop taxing them, I don't care. See how long they last.
 
2011-03-01 03:27:52 PM

Lenny_da_Hog: BullBearMS: You have to laughably stupid to think that our sold out Congress can be trusted with the power to force citizens to purchase whatever their wealthy donor friends would like you to purchase.

*derp* Surely this power would never be misused! *derp* *derp*

This is Patriot Act level stupidity.

As compared to leaving it the way it was? Really?

Paying more than other countries, large percentages of us unable to afford any care at all -- that's better?


So getting rid of the non-profit alternative of the Public Option while leaving the for-profit insurance industries anti-trust exemption fully in place is a good idea?

Force everyone to purchase for profit products from a group who cannot be sued even when they collude to raise prices in lockstep?

As I say, this is Patriot Act level stupidity.
 
2011-03-01 03:29:38 PM

Stylux: First, jury duty is considered a "right" not a "duty".


Trial by jury for the accused is the right.

Serving on a Jury isn't a right. It's a duty. That's why it's called "Jury Duty."

You reall just said that Jury duty wasn't a duty, holy fark.

Also, tee-hee, "doody."
 
2011-03-01 03:32:15 PM

Stylux: I really hope this guy didn't teach Con Law or Civ Pro at NY.
First, jury duty is considered a "right" not a "duty". Comparing the health law mandate and jury duty is mixing apples with oranges and makes this guy look like an idiot. Secondly, as for the draft analogy, FTA: "commerce clause" or the "necessary and proper clause." The guy just refuted his own farking point.

/Hates bad lawyers.


So you must hate yourself then
 
2011-03-01 03:32:21 PM
Do not mistake "Obtain" and "purchase" to mean the same things.
You don't actually have to purchase clothing. There are charities that will give you clothing if you need them. I'm sure that friends or family would provide you with the required items.
 
2011-03-01 03:32:55 PM
The Governments ability to raise a military is from Section I of the Constitution. It's ability to draft soldiers comes from that power and does not rely on the Commerce Clause

Right to a Jury Trial is conferred specifically by the 6th Amendment to the Constitution. The power to force people to serve on Juries rises from this. It is not come from the Commerce Clause

It is a poor red herring argument to compare these two things to the Insurance Mandate
 
2011-03-01 03:34:08 PM

BullBearMS: So getting rid of the non-profit alternative of the Public Option while leaving the for-profit insurance industries anti-trust exemption fully in place is a good idea?

Force everyone to purchase for profit products from a group who cannot be sued even when they collude to raise prices in lockstep?


Unfortunately for your paranoid fantasies, one of the key provisions of the insurance exchanges created under the HCR act is that insurance companies cannot participate unless they meet certain regulatory criteria--criteria which include a cap on profits.

The notion that health insurance company profits are the main--or even a significant--driver in overall US medical costs is one of the most widespread misconceptions in the entire HCR debate, and one that liberals in particular are subject to. Every independent study of the public option found that it would have an almost negligible effect on healthcare costs. The continued obsession on the left with the public option is the exact equivalent, in terms of sacrificing actual analysis to ideological purity, to the obsession with "tort reform" on the right. Neither has much of anything to do with the actual problem, so it's simply typical of the US political debate that these become the central elements in the political debate.
 
2011-03-01 03:36:31 PM

MasterThief: Then that is a strawman. Of course Congress can "regulate inactivity" - it can compel people to do some things against their will so that government can function, nobody disputes that. The problem with HCR is that this law compels people to engage in a different activity, one that until now has never been held to be necessary to the functioning of government - commerce. No prior law or court decision has held that Congress has the power to compel commercial activity - the buying of goods and services - even under the most ridiculously expansive definitions of "commerce" from cases like Wickard v. Filburn and the most ass-pulled interpretations of the Necessary and Proper clause. To the extent Prof. Hills doesn't understand or appreciate this, he's missing the point.




You're argument is the mandate is unconstitutional because it's novel in this context. Which is exceedingly weak.

Per you Boobies, we need to establish the mandate is necessary. WIth health care costs at 1/6th of GDP, that hurdle is cleared. The next thing that needs to be established is if there are explicit constitutional prohibitions to exercising this power. And there are none that I've read.
 
2011-03-01 03:36:33 PM

revrendjim: The government requires you to buy clothes. Seriously, try going without for a while and see what happens (OK, wait till summer).


This is snarky, but its also a little true, right? If States have decency laws that require you to be covered, they're also requiring you buy something - whether it be the material to weave your own cloth or fabric to make your own clothes or just fully made clothes)
 
2011-03-01 03:38:39 PM

weiserfireman: The Governments ability to raise a military is from Section I of the Constitution. It's ability to draft soldiers comes from that power and does not rely on the Commerce Clause

Right to a Jury Trial is conferred specifically by the 6th Amendment to the Constitution. The power to force people to serve on Juries rises from this. It is not come from the Commerce Clause

It is a poor red herring argument to compare these two things to the Insurance Mandate


Can you imagine the firestorm if these idiots (who defend anything their political team decides to do) had been forced to purchase items from Halliburton by the Bush Administration?

However these are the same derpmeisters who thought there was nothing wrong with President Obama ordering the Assassination of American Citizens. They will defend literally anything as long as their team does it.
 
2011-03-01 03:38:56 PM

Stylux: First, jury duty is considered a "right" not a "duty".


georgeislove.files.wordpress.com
 
2011-03-01 03:41:21 PM

JokerMattly: revrendjim: The government requires you to buy clothes. Seriously, try going without for a while and see what happens (OK, wait till summer).

This is snarky, but its also a little true, right? If States have decency laws that require you to be covered, they're also requiring you buy something - whether it be the material to weave your own cloth or fabric to make your own clothes or just fully made clothes)


This is correct as well. You can raise your own flax, make your own thread, and weave your own clothes. You will have met the mandate to be clothed. Or you can buy some cloths.

Same is true of the mandate. You can start your own insurance company, find policy holders, and meet the mandate to be covered. Or you can buy some coverage.

Ignoring charitable or public solutions in either case.
 
2011-03-01 03:43:03 PM

weiserfireman: The Governments ability to raise a military is from Section I of the Constitution. It's ability to draft soldiers comes from that power and does not rely on the Commerce Clause

Right to a Jury Trial is conferred specifically by the 6th Amendment to the Constitution. The power to force people to serve on Juries rises from this. It is not come from the Commerce Clause

It is a poor red herring argument to compare these two things to the Insurance Mandate


How does the right to have a jury trial "specifically" imply the duty of all citizens to make themselves available to serve on juries? You have the right to bear arms, but that doesn't mean the goverment is compelled to buy you a gun. You have a right to have a judge at your jury trial, but the government doesn't force people to go to law school and become judges; it offers a salary to entice people into that position.

I'm not arguing about whether or not the Government has a right to empanel a jury by force, but I think it's extremely dubious to say that that right is created by the 6th amendment to the constitution.
 
2011-03-01 03:43:14 PM

JokerMattly: revrendjim: The government requires you to buy clothes. Seriously, try going without for a while and see what happens (OK, wait till summer).

This is snarky, but its also a little true, right? If States have decency laws that require you to be covered, they're also requiring you buy something - whether it be the material to weave your own cloth or fabric to make your own clothes or just fully made clothes)


Decency laws only apply in public, I believe. I can hang around in the nude in my house all day, if I feel like it.
 
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