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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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3761 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»



210 Comments   (+0 »)
   

Archived thread
 
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.
 
2011-03-01 03:45:52 PM  
How does the Constitutionally granted power to "Regulate Commerce between the states" equate to forcing you to purchase for-profit products?

People aren't States.
Not purchasing something is not only not Commerce, it is the opposite of Commerce.
 
2011-03-01 03:45:54 PM  

kibitzer788: 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.


If you want to use public spaces you have to buy clothes.

So, if you want to use medical facilities you have to buy insurance.
 
2011-03-01 03:48:10 PM  
None of the arguments cited force you to buy anything.

For a law professor he is not very smart and neither is the Author of the story. As a matter of fact in each case cited you are paid to perform the activity to which you are mandated.

Also each of the arguments cited is specifically mandated by the constitution.

You have a right to a trial of your peers. Which implies that your peers have a Constitutional obligation to sit on said jury.

The draft is specifically in the Constitution in the fact that the congress is given the power to "raise and support Armies". Again implying that in order to do so they can force people to participate.

This "Law Professor" is obviously not a Constitutional scholar.
 
2011-03-01 03:49:29 PM  
That was stupid.
 
2011-03-01 03:49:39 PM  

BullBearMS: forcing you to purchase for-profit products?


Law doesn't say that. It says you must be covered. You are more than free to create your own non-profit insurance coverage that meets your state requirements.
 
2011-03-01 03:49:42 PM  

kibitzer788: 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.


Like Ghandi i can make my own.
 
2011-03-01 03:49:50 PM  

12349876: kibitzer788: 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.

If you want to use public spaces you have to buy clothes.

So, if you want to use medical facilities you have to buy insurance.


What about private medical facilities? Try harder.
 
2011-03-01 03:50:07 PM  
I'm not sure that this guy should be considered a Constitutional "Scholar" given he seems to be unfamiliar with what the commerce clause is. Any average 1L at a tier 4 law school could tell you that jury duty and the draft are not conferred via the commerce clause, thus the fact that they exist has absolutely no bearing on the Constitutionality of obamacare.
 
2011-03-01 03:51:41 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.


They are not regulating inactivity, they're regulating activity and punishing people who do not comply with the activity. In these cases, the activity is itself shown to be constitutionally valid, and explicitly provided as a power to the Federal government. Article 1, Section 8:
[Congress shall have the power] To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.

There is no constitutional enumeration clearly stating the government can require people to purchase health insurance in the same way a clear enumeration of control over the Army in the same section and the 6th Amendment's requirement for jury trials.
 
2011-03-01 03:53:03 PM  

kibitzer788: What about private medical facilities? Try harder.


No private medical facility is going to allow you to be there nude.
 
2011-03-01 03:54:02 PM  

kibitzer788: Try harder.


You can lay nude in your house all day long if you're independently wealthy or a bohemian squatter. Which is also true in either case for failure to maintain coverage if you get right down to it.
 
2011-03-01 03:54:51 PM  
This law professor has obviously never heard of conscientious objection.

You can avoid the draft entirely by objecting.

Currently, the U.S. Selective Service System states, "Beliefs which qualify a registrant for conscientious objector status may be religious in nature, but don't have to be. Beliefs may be moral or ethical; however, a man's reasons for not wanting to participate in a war must not be based on politics, expediency, or self-interest. In general, the man's lifestyle prior to making his claim must reflect his current claims."

This law professor says that we regulate pacifism in order to have a draft. That's demonstrably wrong. Pacifism is a moral or ethical objection to military service. Ergo, no drafting of conscientious objectors.
 
2011-03-01 03:55:23 PM  

RIDETHEWALRUS: I'm not sure that this guy should be considered a Constitutional "Scholar" given he seems to be unfamiliar with what the commerce clause is. Any average 1L at a tier 4 law school could tell you that jury duty and the draft are not conferred via the commerce clause, thus the fact that they exist has absolutely no bearing on the Constitutionality of obamacare.


He addressed that. Disagree if you like, but at least read the article.

"The draft was held up as constitutional by the Supreme Court, but not under the "commerce clause" or the "necessary and proper clause," which are being used to defend the individual mandate. But Hills said the larger point stands: Congress has the power to ban inaction.

"If the draft is constitutional, it's constitutional to ban inaction," he said. "Congress can ban inaction, assuming that it's necessary and proper to regulate interstate commerce."
 
2011-03-01 03:55:43 PM  

DarnoKonrad: The next thing that needs to be established is if there are explicit constitutional prohibitions to exercising this power.


That's not how the Constitution works. The federal government must prove that it is enumerated to have the power it is claiming. Any powers claimed by the government are not attributed to it by default.

DarnoKonrad: Per you Boobies, we need to establish the mandate is necessary. WIth health care costs at 1/6th of GDP, that hurdle is cleared.


'Necessary' has nothing to do with the issue at hand. 'Necessary and proper' only comes into play after enumeration is shown.
 
2011-03-01 03:56:07 PM  

HotWingConspiracy: RIDETHEWALRUS: I'm not sure that this guy should be considered a Constitutional "Scholar" given he seems to be unfamiliar with what the commerce clause is. Any average 1L at a tier 4 law school could tell you that jury duty and the draft are not conferred via the commerce clause, thus the fact that they exist has absolutely no bearing on the Constitutionality of obamacare.

He addressed that. Disagree if you like, but at least read the article.

"The draft was held up as constitutional by the Supreme Court, but not under the "commerce clause" or the "necessary and proper clause," which are being used to defend the individual mandate. But Hills said the larger point stands: Congress has the power to ban inaction.

"If the draft is constitutional, it's constitutional to ban inaction," he said. "Congress can ban inaction, assuming that it's necessary and proper to regulate interstate commerce."


See my above comment about why this guy's wrong on the pacifism angle.
 
2011-03-01 03:56:09 PM  
I think there is a reasonable argument that can be made that the government can regulate our participation in the health care market because we are all participants to some extent already in that interstate market (whether you avail yourself of this market's services when you need dialysis every week, an Tylenol every once in a while, or an EMT to check your pulse when you are dead). this professors argument seems to be that since the government can compel you to do a couple things it therefore can compel you to do anything. that's not very persuasive for me. I hope the article left out some of his reasoning.
 
2011-03-01 03:56:21 PM  

RIDETHEWALRUS: I'm not sure that this guy should be considered a Constitutional "Scholar" given he seems to be unfamiliar with what the commerce clause is. Any average 1L at a tier 4 law school could tell you that jury duty and the draft are not conferred via the commerce clause, thus the fact that they exist has absolutely no bearing on the Constitutionality of obamacare.


THIS. In spades. Makes me really, seriously wonder WTF is going on at that school. I mean, I had a couple of moronic profs in my time, but they were most definitely not teaching Con Law.
 
2011-03-01 03:56:47 PM  
He's got a pretty good point.
 
2011-03-01 03:57:47 PM  

The_Six_Fingered_Man: This law professor has obviously never heard of conscientious objection.

You can avoid the draft entirely by objecting.

Currently, the U.S. Selective Service System states, "Beliefs which qualify a registrant for conscientious objector status may be religious in nature, but don't have to be. Beliefs may be moral or ethical; however, a man's reasons for not wanting to participate in a war must not be based on politics, expediency, or self-interest. In general, the man's lifestyle prior to making his claim must reflect his current claims."

This law professor says that we regulate pacifism in order to have a draft. That's demonstrably wrong. Pacifism is a moral or ethical objection to military service. Ergo, no drafting of conscientious objectors.


I was going to say that very thing ... aren't there certain religious sects that are exempt from the draft, like the Quakers?
 
2011-03-01 03:57:51 PM  

relcec: I think there is a reasonable argument that can be made that the government can regulate our participation in the health care market


The mandate has little to do with the health care market, but everything to do with the health insurance market. There is no interstate health insurance market.
 
2011-03-01 03:58:31 PM  

kibitzer788: 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.


I suppose that's true, but isn't the situation "I can buy clothes, or i can stay inside the rest of my life" a little beyond the normal expectation?

And even if you grow everything yourself, you still have to buy seeds. Unless magically God provides and every cloth material you need jsut happens to grow close enough that you're not publically naked while you harvest.
 
2011-03-01 03:59:11 PM  

chiefsfaninkc: Also each of the arguments cited is specifically mandated by the constitution.

You have a right to a trial of your peers. Which implies that your peers have a Constitutional obligation to sit on said jury.


No, it doesn't. You have a right to free speech, but that doesn't meen the government has to pay for a printing press to help you get your message out. You have a right to an attorney, but that doesn't mean that the government conscripts people to serve as public defenders: it fills that job simply by paying a salary. The government's right to empanel juries is simply an assumed, non-specified right rooted in the common-law tradition on which American jurisprudence is constructed. It's not specified in the constitution anywhere (except, conceivably, in the "General Welfare" clause) because the people writing the constitution took it to be self-evident.

The draft is specifically in the Constitution in the fact that the congress is given the power to "raise and support Armies". Again implying that in order to do so they can force people to participate.

And here, again, you're simply reading something into the words that isn't there. The fact that the Government is given the power to 'raise and support Armies' in no way implies that they have absolute power to force people to participate in those armies against their will or their conscience. It would be easy to write a constitution in which a Government was given the right to "raise and support" Armies without being given the right to compel participation in said Armies.

I love the way people always become incredibly restrictive in their interpretations of every part of the constitution if they happen to dislike one of its implications (see e.g. arguments over the 2nd amendment, or see BullBearMS's little brain fart above about the commerce clause applying only to transactions "between states") but remain maximally inclusive in their interpretations in every other case.
 
2011-03-01 03:59:11 PM  

Code_Archeologist: 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.


Dole dealt with Congress' power to spend tax revenues with conditions it saw fit. Helvering was about Social Security - a government-run insurance program, not, as here, a bizzaro hybrid public-private mess. Plus, while Congress has broad discretion to pass laws regulating health, safety or welfare, that power is constrained by any number of constitutional principles. For example, Congress cannot "commandeer" states or localities into enforcing federal law. (New York v. United States, Printz v. United States). Federal law does not automatically pre-empt inconsistent state law in the same field. (Wyeth v. Levine, Altria Group v. Good) And even its most "elastic" power - the commerce clause, cannot be used to justify regulating anything Congress desires (United States v. Lopez, United States v. Morrison). Etc. etc.

Ryan2065: 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)


This is a strawman - the argument is not about the control of activity or inactivity in generall, but rather a very specific kind of activity - commerce. Omitting the distinction between commercial activity and all activity is what makes this a strawman argument: it is substituting a proposition subtly different from the one offered, and rebutting that instead. And I don't remember anything in the rules of logic that say only the person making an argument can call an opposing argument a strawman.

The link you offered is talking about Wickard v. Filburn, which was a case about Congress' power to regulate private commercial activity. (Short version: The government was trying to stop Filburn from growing wheat that Filburn did not sell, but used on his own farm as animal feed. Amazingly, the Supreme Court held this to "affect" - and therefore be - interstate commerce, even though the wheat in question was never sold and never cross state lines.) Even assuming for the sake of argument that Wickard is correct - Congress can regulate any commercial activity that has even an indirect effect on interstate commerce, the holding of the case was related to commerce. All of the precedents mentioned by both Suderman and Tushnet - Wickard, health insurance reform, medical marijuana, etc. - are all about cases of "economic" activity or "commercial" activity, not things like the draft or jury service. I suppose you could try to make the argument that being in the military or on a jury is "commerce," but I doubt they'd be convincing.

Ryan2065: 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!


Huh? I didn't mention the government forcing people to buy guns. A military draft doesn't mean you have to buy your gun. (There is proposed South Dakota law that would require citizens to buy guns, but 1) it's more to make a point than a law, and 2) states, unlike the federal government, do have much broader powers to regulate commerce among their citizens, so such a law would probably be consistent with the federal constitution.)

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.


So I wasn't required to fill out that Selective Service card that came in the mail when I turned 18? And all that stuff about being ineligible for student loans or federal employment if you're a male and haven't registered is just scare tactics? The power and the capability of the government to call a military draft is still there, it just hasn't been used or needed since Vietnam. (Besides, volunteer forces work better.) But if there ever was a need for more troops than there were volunteers, that could change very quickly, and entirely legally too.

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


"Deserve's got nothing to do with it."
 
2011-03-01 03:59:20 PM  

RIDETHEWALRUS: I'm not sure that this guy should be considered a Constitutional "Scholar" given he seems to be unfamiliar with what the commerce clause is. Any average 1L at a tier 4 law school could tell you that jury duty and the draft are not conferred via the commerce clause, thus the fact that they exist has absolutely no bearing on the Constitutionality of obamacare.


You're missing the point.

The draft is not in the constitution. It just says "raise and support armies" which is just as open ended as "general welfare" or "commerce among states"

If it can't "force" people into the draft, it can't "force" them anywhere for any reason.
 
2011-03-01 04:00:09 PM  

JokerMattly: I suppose that's true, but isn't the situation "I can buy clothes, or i can stay inside the rest of my life" a little beyond the normal expectation?


AFAIK, decency laws are decided by the state or local municipality.
 
2011-03-01 04:00:55 PM  

The_Six_Fingered_Man: This law professor has obviously never heard of conscientious objection.


I'm sure he has. COs are also conscripted against their will, just not for military service. They end up digging ditches or some other task.
 
2011-03-01 04:01:14 PM  

The_Six_Fingered_Man: HotWingConspiracy: RIDETHEWALRUS: I'm not sure that this guy should be considered a Constitutional "Scholar" given he seems to be unfamiliar with what the commerce clause is. Any average 1L at a tier 4 law school could tell you that jury duty and the draft are not conferred via the commerce clause, thus the fact that they exist has absolutely no bearing on the Constitutionality of obamacare.

He addressed that. Disagree if you like, but at least read the article.

"The draft was held up as constitutional by the Supreme Court, but not under the "commerce clause" or the "necessary and proper clause," which are being used to defend the individual mandate. But Hills said the larger point stands: Congress has the power to ban inaction.

"If the draft is constitutional, it's constitutional to ban inaction," he said. "Congress can ban inaction, assuming that it's necessary and proper to regulate interstate commerce."

See my above comment about why this guy's wrong on the pacifism angle.


But doesn't the health care law have similar exemptions for religious people?
 
2011-03-01 04:01:15 PM  
MasterThief
Nabb1:

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


Section I does not explicitly give Congress the power to institute a draft. Neither does the 6th Amendment provide the power to raise a jury. Rather, it comes from the necessary and proper clause.

The power to have an individual mandate also comes from the necessary and proper clause.

If the necessary and proper clause can regulate inactivity when enforcing the implied powers in Section I and in the 6th Amendment, why can't it also do so for the Commerce Clause?

/not implying I know the answer. Willing to hear the arguments. But I wouldn't call it a red herring.
 
2011-03-01 04:02:05 PM  

HotWingConspiracy: But Hills said the larger point stands: Congress has the power to ban inaction.


News Flash: Congress has the power that is vested in it by the Constitution. In some cases that looks like, and maybe is, the power "to ban inaction."* And in other cases, it's the Commerce Clause.

*I'm not sure the draft is the power to ban inaction. Jury duty, more likely, yes.
 
2011-03-01 04:02:48 PM  

MasterThief: Short version: The government was trying to stop Filburn from growing wheat that Filburn did not sell, but used on his own farm as animal feed. Amazingly, the Supreme Court held this to "affect" - and therefore be - interstate commerce, even though the wheat in question was never sold and never cross state lines.


Important thing to note: he grew over 14,000 pounds over his allowed amount, more than twice the legal limit. This wasn't a Freedom Garden to feed his poor cow Bessie.
 
2011-03-01 04:03:32 PM  
I think what we have learned here is that New York University law professor Rick Hills is ripping off the University and everyone paying tuition.
 
2011-03-01 04:03:38 PM  

sprawl15: AFAIK, decency laws are decided by the state or local municipality.


So states have the power to make you buy things, and not the government? Shoulda just made states responcible for making sure you have coverage.
 
2011-03-01 04:04:03 PM  

ju66l3r: Stylux: First, jury duty is considered a "right" not a "duty".


He calls his hairstyle Arthur.
 
2011-03-01 04:04:17 PM  
Cool huh? Under this interpretation, the government has the authority to compel you to do anything at all. Does that not merit a 'scary' tag?
 
2011-03-01 04:04:57 PM  

MasterThief: So I wasn't required to fill out that Selective Service card that came in the mail when I turned 18? And all that stuff about being ineligible for student loans or federal employment if you're a male and haven't registered is just scare tactics? The power and the capability of the government to call a military draft is still there, it just hasn't been used or needed since Vietnam. (Besides, volunteer forces work better.) But if there ever was a need for more troops than there were volunteers, that could change very quickly, and entirely legally too.


You were required to register for a draft in the event that one should be implemented but you were not drafted and no one has been drafted since the Vietnam War.

So, once again, your argument is false from the outset. It is demonstrably untrue that "raising an army" necessitates a draft and therefore the Government's right to "raise armies" cannot be said to specifically confer the right to impose the draft.
 
2011-03-01 04:06:01 PM  

Coprolalia: Section I does not explicitly give Congress the power to institute a draft. Neither does the 6th Amendment provide the power to raise a jury. Rather, it comes from the necessary and proper clause.

The power to have an individual mandate also comes from the necessary and proper clause.


The necessary and proper clause is a modification to specific enumerations: it means whatever we allow you, we also allow you the tools to do that. We will let you have an army, and whatever is necessary and proper to create that army. We will let you have jury trials, and whatever is necessary and proper to have jury trials. Neither of those are 'regulating inactivity', they're regulating constitutionally mandated activity.
 
2011-03-01 04:06:27 PM  

JokerMattly: sprawl15: AFAIK, decency laws are decided by the state or local municipality.

So states have the power to make you buy things, and not the government? Shoulda just made states responcible for making sure you have coverage.


That's how the feds got all but one state to raise the drinking age to 21. It just said it would withhold a state's highway funds until it knuckled under.
 
2011-03-01 04:07:25 PM  

DarnoKonrad: The_Six_Fingered_Man: This law professor has obviously never heard of conscientious objection.

I'm sure he has. COs are also conscripted against their will, just not for military service. They end up digging ditches or some other task.


This line: "We can forbid pacifism in order to raise an army," betrays what you believe the law professor knows. He thinks that the US government has banned pacifism, when in fact, COs are drafted into the Alternative Service Program, which is civilian in nature. Therefore, the ability to raise an army is not predicated on "forbidding pacifism."

HotWingConspiracy: But doesn't the health care law have similar exemptions for religious people?


It does. However, COs can be for reasons other than religious. They can also be moral or ethical in nature. There is no morality or ethics exclusion from PPACA.
 
2011-03-01 04:07:30 PM  

sprawl15: relcec: I think there is a reasonable argument that can be made that the government can regulate our participation in the health care market

The mandate has little to do with the health care market, but everything to do with the health insurance market. There is no interstate health insurance market.


There's no interstate health insurance market because health insurance companies have voluntarily chosen for more than 60 years to be licensed by individual states and only sell policies within those states instead of being exposed to federal anti-trust legislation. There is no federal law preventing them from selling across state lines today.
 
2011-03-01 04:07:59 PM  

JokerMattly: sprawl15: AFAIK, decency laws are decided by the state or local municipality.

So states have the power to make you buy things, and not the government?


Yes. The federal government is only allowed to control what it is enumerated to control per the Constitution. The states are not limited in the same way.

Shoulda just made states responcible for making sure you have coverage.

Or not relying on the commerce clause for a mandate and using single payer or a public option. Any of those would have avoided this.
 
2011-03-01 04:08:07 PM  

JokerMattly: sprawl15: AFAIK, decency laws are decided by the state or local municipality.

So states have the power to make you buy things, and not the government? Shoulda just made states responcible for making sure you have coverage.


You own stock in wallmart?
 
2011-03-01 04:08:48 PM  

JokerMattly: So states have the power to make you buy things, and not the government?


Short answer? Yes. The State enjoy general police powers. The Federal government does not.

This is why you can be forced to buy auto insurance on the State level.
 
2011-03-01 04:09:18 PM  

Serious Black: sprawl15: relcec: I think there is a reasonable argument that can be made that the government can regulate our participation in the health care market

The mandate has little to do with the health care market, but everything to do with the health insurance market. There is no interstate health insurance market.

There's no interstate health insurance market because health insurance companies have voluntarily chosen for more than 60 years to be licensed by individual states and only sell policies within those states instead of being exposed to federal anti-trust legislation. There is no federal law preventing them from selling across state lines today.


Sigh, not this tired disingenuous shiat again.
 
2011-03-01 04:11:33 PM  

jjorsett: Cool huh? Under this interpretation, the government has the authority to compel you to do anything at all. Does that not merit a 'scary' tag?


Law professor makes very limited point with reference to one particular argument against the HCR act: that it is not relevent to object to it on the grounds that it "regulates inaction" because the government has long been recognized to have the power to "regulate inaction."

He is making no argument here, one way or another, as to the constitutionality of the bill. He is making no argument here, one way or another, as to whether the Commerce Clause or the Necessary and Proper Clause or even Santa Claus provides sufficient or, indeed, any justification for the powers claimed under the act.

Above all, he is not arguing that simply because the government has, in certain instances, the power to regulate inaction that they therefore have that power in any and all contexts.

He is simply making the argument that simply wittering on about "regulating inaction" is an insufficient basis for a constitutional challenge to the law.

Man is this ever one of those threads where it's easy to spot the people who haven't read the article.
 
2011-03-01 04:12:36 PM  

sprawl15: Serious Black: sprawl15: relcec: I think there is a reasonable argument that can be made that the government can regulate our participation in the health care market

The mandate has little to do with the health care market, but everything to do with the health insurance market. There is no interstate health insurance market.

There's no interstate health insurance market because health insurance companies have voluntarily chosen for more than 60 years to be licensed by individual states and only sell policies within those states instead of being exposed to federal anti-trust legislation. There is no federal law preventing them from selling across state lines today.

Sigh, not this tired disingenuous shiat again.


What's disingenuous about it? If there's no interstate health insurance market, there must be a reason for it. If it's not a voluntary action by the health insurance industry, what is that reason?
 
2011-03-01 04:13:07 PM  

Snot Monster from Outer Space: Above all, he is not arguing that simply because the government has, in certain instances, the power to regulate inaction that they therefore have that power in any and all contexts.


Actually, he makes the point that if it were related to interstate commerce, Congress could regulate ANY inactivity.

"If the draft is constitutional, it's constitutional to ban inaction," he said. "Congress can ban inaction, assuming that it's necessary and proper to regulate interstate commerce."
 
2011-03-01 04:14:33 PM  

Garet Garrett: RIDETHEWALRUS: I'm not sure that this guy should be considered a Constitutional "Scholar" given he seems to be unfamiliar with what the commerce clause is. Any average 1L at a tier 4 law school could tell you that jury duty and the draft are not conferred via the commerce clause, thus the fact that they exist has absolutely no bearing on the Constitutionality of obamacare.

THIS. In spades. Makes me really, seriously wonder WTF is going on at that school. I mean, I had a couple of moronic profs in my time, but they were most definitely not teaching Con Law.


Are we seriously going to expect logic or reason from the assholes willing to argue that Congress can be trusted with the power to force you to purchase anything their wealthy friends want???
 
2011-03-01 04:14:38 PM  

Serious Black: What's disingenuous about it?


The reason is completely irrelevant. If the HCR bill changed it such that interstate commerce would exist, interstate commerce would be applicable to regulate method of sale of the product. It still would not be applicable to mandate purchase of the product without a significant expansion of federal power, which wouldn't change the conversation one bit. But that's still an "if-then" that didn't happen, so it's two degrees of irrelevant.
 
2011-03-01 04:14:40 PM  

Serious Black: sprawl15: Serious Black: sprawl15: relcec: I think there is a reasonable argument that can be made that the government can regulate our participation in the health care market

The mandate has little to do with the health care market, but everything to do with the health insurance market. There is no interstate health insurance market.

There's no interstate health insurance market because health insurance companies have voluntarily chosen for more than 60 years to be licensed by individual states and only sell policies within those states instead of being exposed to federal anti-trust legislation. There is no federal law preventing them from selling across state lines today.

Sigh, not this tired disingenuous shiat again.

What's disingenuous about it? If there's no interstate health insurance market, there must be a reason for it. If it's not a voluntary action by the health insurance industry, what is that reason?


Insurance companies are only permitted to sell insurance in the States in which they are licensed.
 
2011-03-01 04:14:53 PM  

sprawl15: Coprolalia: Section I does not explicitly give Congress the power to institute a draft. Neither does the 6th Amendment provide the power to raise a jury. Rather, it comes from the necessary and proper clause.

The power to have an individual mandate also comes from the necessary and proper clause.

The necessary and proper clause is a modification to specific enumerations: it means whatever we allow you, we also allow you the tools to do that. We will let you have an army, and whatever is necessary and proper to create that army. We will let you have jury trials, and whatever is necessary and proper to have jury trials. Neither of those are 'regulating inactivity', they're regulating constitutionally mandated activity.


Great. HCR is required in order to regulate the interstate commerce in health insurance and other health products and services (a market that threatens the stability of the entire US economy). It is unquestionable that the government has the right to regulate that market under the Commerce Clause. Now all the govt. needs to do is to argue that HCR is "necessary and proper" means to that end: i.e., that it can't meaningfully regulate that market without a mechanism of this kind.
 
2011-03-01 04:15:45 PM  

BullBearMS: Are we seriously going to expect logic or reason from the assholes willing to argue that Congress can be trusted with the power to force you to purchase anything their wealthy friends want???


It's bad because it's wealthy friends. If it was from poor friends, it would be OK.
 
2011-03-01 04:16:21 PM  

Snot Monster from Outer Space: HCR is required in order to regulate the interstate commerce in health insurance


There is no interstate commerce in health insurance.
 
2011-03-01 04:16:32 PM  

The_Six_Fingered_Man: Short answer? Yes. The State enjoy general police powers. The Federal government does not.

This is why you can be forced to buy auto insurance on the State level.


I suppose the answer I'm looking to for "Why doesn't the law just make the states responcible for making sure people are insured" is "the federal government can't really make states do that."
 
2011-03-01 04:16:41 PM  

The_Six_Fingered_Man: Snot Monster from Outer Space: Above all, he is not arguing that simply because the government has, in certain instances, the power to regulate inaction that they therefore have that power in any and all contexts.

Actually, he makes the point that if it were related to interstate commerce, Congress could regulate ANY inactivity.

"If the draft is constitutional, it's constitutional to ban inaction," he said. "Congress can ban inaction, assuming that it's necessary and proper to regulate interstate commerce."


How is this supposed to be counter to what I said? Perhaps you're unclear on what the word "assuming" means?
 
2011-03-01 04:17:18 PM  

sprawl15: Coprolalia: Section I does not explicitly give Congress the power to institute a draft. Neither does the 6th Amendment provide the power to raise a jury. Rather, it comes from the necessary and proper clause.

The power to have an individual mandate also comes from the necessary and proper clause.

The necessary and proper clause is a modification to specific enumerations: it means whatever we allow you, we also allow you the tools to do that. We will let you have an army, and whatever is necessary and proper to create that army. We will let you have jury trials, and whatever is necessary and proper to have jury trials. Neither of those are 'regulating inactivity', they're regulating constitutionally mandated activity.


I am not yet seeing the difference. Raising an army, creating juries, and regulating health insurance are all "activities." However, the necessary and proper clause allows, to ensure that Congress has the tools to actually have those powers, to make citizens do something. Citizens who were doing nothing are now forced to join the army, show up for jury duty, or purchase health insurance.

I think what you are trying to do is evaluate the individual mandate under the Commerce Clause. But I think you can say that regulating health insurance is clearly under the commerce clause. And to make the regulation of health insurance work, you can use the necessary and proper clause to reach inactivity, ie make people purchase health insurance.
 
2011-03-01 04:17:32 PM  
I'm not a legal scholar and I can say this guy is full of shiat. You don't pay to serve a jury, you don't pay to get 'drafted'.
 
2011-03-01 04:17:47 PM  

sprawl15: relcec: I think there is a reasonable argument that can be made that the government can regulate our participation in the health care market

The mandate has little to do with the health care market, but everything to do with the health insurance market. There is no interstate health insurance market.


doesn't matter. everyone avails themselves of healthcare in some form at some time (Tylenol, EMTs, dialysis services, nurses, doctors (that were trained with medicare funds), healthcare IT services, meds from all over the world, at the very end of it all a coroner's report) that is interstate in nature. everyone therefore is liable to have their activity regulated by the federal government, including buying insurance products that are only offered in their state. the government interest at stake is promoting healthcare of the citizenry and insuring that there are no free riders on this new program (also getting the young and healthy paying in. I think it is a somewhat reasonable argument. I don't like the idea of it because it doesn't seem like you leave much that they can't touch, but I guess it was already that way.
 
2011-03-01 04:19:27 PM  

sprawl15: Snot Monster from Outer Space: HCR is required in order to regulate the interstate commerce in health insurance

There is no interstate commerce in health insurance.


False. If I get a medical procedure while visiting New York, my California-based insurance company will pay for it. That's interstate commerce involving a health insurance company.
 
2011-03-01 04:20:20 PM  

Snot Monster from Outer Space: The_Six_Fingered_Man: Snot Monster from Outer Space: Above all, he is not arguing that simply because the government has, in certain instances, the power to regulate inaction that they therefore have that power in any and all contexts.

Actually, he makes the point that if it were related to interstate commerce, Congress could regulate ANY inactivity.

"If the draft is constitutional, it's constitutional to ban inaction," he said. "Congress can ban inaction, assuming that it's necessary and proper to regulate interstate commerce."

How is this supposed to be counter to what I said? Perhaps you're unclear on what the word "assuming" means?


You stated that he does not argue that Congress has the ability to "regulate inactivity in any and all contexts." He actually does make that argument, stating exactly what I wrote. Permitting that Congress can show it is necessary and proper to regulate interstate commerce, they can regulate any and all inaction.
 
2011-03-01 04:21:22 PM  

stewmadness: I'm not a legal scholar and I can say this guy is full of shiat. You don't pay to serve a jury, you don't pay to get 'drafted'.


1) why is paying constitutionally relevant 2) you are forced to pay taxes which provide funds for juries and soldiers.
 
2011-03-01 04:21:32 PM  

sprawl15: BullBearMS: Are we seriously going to expect logic or reason from the assholes willing to argue that Congress can be trusted with the power to force you to purchase anything their wealthy friends want???

It's bad because it's wealthy friends. If it was from poor friends, it would be OK.


Which poor friends have enough bribe money?

From PBS's Bill Moyer's Journal:

Just to be certain Congress sticks with the program, [the Health Insurance Industry has] been showering megabucks all over Capitol Hill. From the beginning, they wanted to make sure that the bill that comes out of the Finance Committee next week puts for-profit health insurance companies first, by forcing the uninsured to buy medical policies from them. Money not only talks, it writes the prescriptions.

In just the last few months, the health care industry has spent 380 million dollars on lobbying, advertising and campaign contributions. And a million and a half of it went to -- don't hold your breath -- Finance Committee Chairman Baucus, who said he saw "a lot to like" in two proposed public options but voted "no."

SEN. MAX BAUCUS: My job is to put together a bill that gets 60 votes. Now I can count and no one has been able to show me how we can count up to 60 votes with a public option in the bill.

BILL MOYERS: Of course not. They can't get 60 votes. Not when the people who want a public alternative can't possibly scrape up the millions of dollars Baucus has received from the health sector during his political career.

Over the last two decades, the current members of the Senate Finance Committee - you're looking at them -- have collected nearly 50 million dollars from the health sector. A long-term investment that's now paying off like a busted slot machine.
 
2011-03-01 04:21:41 PM  

stewmadness: I'm not a legal scholar and I can say this guy is full of shiat. You don't pay to serve a jury, you don't pay to get 'drafted'.


You can "say" that anyone is full of shiat. What you and everyone else involved in this thread thus far has failed to do is to "show" that this is the case.

Mostly we just see people arguing with straw men (hint: he says absolutely nothing whatsoever about the applicability of the commerce clause to HCR).
 
2011-03-01 04:22:10 PM  

Coprolalia: I am not yet seeing the difference. Raising an army, creating juries, and regulating health insurance are all "activities." However, the necessary and proper clause allows, to ensure that Congress has the tools to actually have those powers, to make citizens do something. Citizens who were doing nothing are now forced to join the army, show up for jury duty, or purchase health insurance.


The 'something' must be a Constitutionally mandated power. Drafts and jury duties are nominally ways to ensure the government can create an army or create a jury. The mandate does not ensure the government can do anything, it only enforces itself. It is not a 'tool', it is the end.

Now, the 'inactivity' argument is doubly stupid because jury duty must be done regardless of what you were doing. It has nothing to do with inactivity. Same with the draft. There are waivers that are applicable for some people depending on action, but those are irrelevant to the nature of either the draft or jury duty.
 
2011-03-01 04:25:15 PM  

Coprolalia: stewmadness: I'm not a legal scholar and I can say this guy is full of shiat. You don't pay to serve a jury, you don't pay to get 'drafted'.

1) why is paying constitutionally relevant 2) you are forced to pay taxes which provide funds for juries and soldiers.


Not everyone is forced to pay income taxes, which is where the pool of money for juries and soldiers is taken from.
 
2011-03-01 04:25:37 PM  

The_Six_Fingered_Man: Snot Monster from Outer Space: The_Six_Fingered_Man: Snot Monster from Outer Space: Above all, he is not arguing that simply because the government has, in certain instances, the power to regulate inaction that they therefore have that power in any and all contexts.

Actually, he makes the point that if it were related to interstate commerce, Congress could regulate ANY inactivity.

"If the draft is constitutional, it's constitutional to ban inaction," he said. "Congress can ban inaction, assuming that it's necessary and proper to regulate interstate commerce."

How is this supposed to be counter to what I said? Perhaps you're unclear on what the word "assuming" means?

You stated that he does not argue that Congress has the ability to "regulate inactivity in any and all contexts." He actually does make that argument, stating exactly what I wrote. Permitting that Congress can show it is necessary and proper to regulate interstate commerce, they can regulate any and all inaction.


Christ almight: read your own words will you? Contexts in which Congress has demonstrated a necessary and proper role in the regulation of interstate commerce =/= "any and all contexts."

Perhaps you need to picture a Venn diagram: can you picture a great big circle that is labelled "any and all contexts" and then picture a much, much smaller circle entirely enclosed within that one which is labelled "contexts in which Congress has demonstrated a necessary and proper role in the regulation of interstate commerce." There--does that help you understand? If not, I'm afraid there may be no hope for you whatsoever.
 
2011-03-01 04:27:15 PM  

The_Six_Fingered_Man: Not everyone is forced to pay income taxes


Not everyone will be forced to pay for their health insurance under HCR. There are considerable subsidies involved for the poor and low-wage.
 
2011-03-01 04:28:07 PM  

sprawl15: The 'something' must be a Constitutionally mandated power.


You've never heard of the proper meaning of the phrase "begging the question" have you?
 
2011-03-01 04:28:18 PM  
Having a citizenry that is not ill and has access to medical care is in the best interest of the nation. To not offer this to everyone could be a major risk to national security.
 
2011-03-01 04:28:44 PM  

BullBearMS:

Your blog links suck.

Snot Monster from Outer Space: False. If I get a medical procedure while visiting New York, my California-based insurance company will pay for it. That's interstate commerce involving a health insurance company.


That is not health insurance commerce to the degree that we're talking about. And you know it.

relcec: sprawl15: relcec: I think there is a reasonable argument that can be made that the government can regulate our participation in the health care market

The mandate has little to do with the health care market, but everything to do with the health insurance market. There is no interstate health insurance market.

doesn't matter. everyone avails themselves of healthcare in some form at some time


It absolutely does matter. You cannot justify health insurance under interstate commerce by saying health care affects interstate commerce. They are different things. The sale of police badges across state lines does not allow the federal government to regulate local police forces under the interstate commerce clause.
 
2011-03-01 04:29:00 PM  

Snot Monster from Outer Space: The_Six_Fingered_Man: Snot Monster from Outer Space: The_Six_Fingered_Man: Snot Monster from Outer Space: Above all, he is not arguing that simply because the government has, in certain instances, the power to regulate inaction that they therefore have that power in any and all contexts.

Actually, he makes the point that if it were related to interstate commerce, Congress could regulate ANY inactivity.

"If the draft is constitutional, it's constitutional to ban inaction," he said. "Congress can ban inaction, assuming that it's necessary and proper to regulate interstate commerce."

How is this supposed to be counter to what I said? Perhaps you're unclear on what the word "assuming" means?

You stated that he does not argue that Congress has the ability to "regulate inactivity in any and all contexts." He actually does make that argument, stating exactly what I wrote. Permitting that Congress can show it is necessary and proper to regulate interstate commerce, they can regulate any and all inaction.

Christ almight: read your own words will you? Contexts in which Congress has demonstrated a necessary and proper role in the regulation of interstate commerce =/= "any and all contexts."

Perhaps you need to picture a Venn diagram: can you picture a great big circle that is labelled "any and all contexts" and then picture a much, much smaller circle entirely enclosed within that one which is labelled "contexts in which Congress has demonstrated a necessary and proper role in the regulation of interstate commerce." There--does that help you understand? If not, I'm afraid there may be no hope for you whatsoever.


At this point, there is very little that Congress could not classify as substantially affecting interstate commerce. Do you deny that the Commerce Clause has been expanded beyond what it should be?

That said, if they can obtain a ruling stating that the personal consumption of a plant grown entirely within one state substantially affects interstate commerce (legal commerce or not) then there is very little that is outside that scope.

Therefore, Congress can use the N&P clause to regulate any inactivity they deem substantially affects interstate commerce, which is just about anything these days.
 
2011-03-01 04:29:51 PM  

sprawl15:
The 'something' must be a Constitutionally mandated power. Drafts and jury duties are nominally ways to ensure the government can create an army or create a jury. The mandate does not ensure the government can do anything, it only enforces itself. It is not a 'tool', it is the end.


My health insurance knowledge is admittedly limited. However, I think there is a clear argument that the mandate is a tool to make sure the regulation works. The federal government is regulating how insurance can be sold and bought, which it can do under the Commerce Clause. However, regulations such as the inability to deny people coverage will not work if people are allowed to game the system by not buying coverage until they are sick. Thus, the individual mandate is a tool to allow a law that keeps people from being denied coverage.


Now, the 'inactivity' argument is doubly stupid because jury duty must be done regardless of what you were doing. It has nothing to do with inactivity. Same with the draft. There are waivers that are applicable for some people depending on action, but those are irrelevant to the nature of either the draft or jury duty.


Can you clarify what you mean here? Duty must be done regardless of what you were doing? You could give Congress the power to pay people to show up to the jury without giving them the power to mandate people show up. How is mandating people buy health insurance not something you have to do regardless of what you were doing?
 
2011-03-01 04:31:48 PM  

Snot Monster from Outer Space: sprawl15: The 'something' must be a Constitutionally mandated power.

You've never heard of the proper meaning of the phrase "begging the question" have you?


The only way this question can make sense is if you have no idea what you're talking about and don't understand my post.

The constitution grants certain powers. To exercise those powers, the constitution also grants additional powers necessary and proper to carry out those first powers. Saying the mandate is 'necessary and proper' to itself, and thus is constitutional, is redundant and is "begging the question", so to speak.
 
2011-03-01 04:32:46 PM  

The_Six_Fingered_Man: Coprolalia: stewmadness: I'm not a legal scholar and I can say this guy is full of shiat. You don't pay to serve a jury, you don't pay to get 'drafted'.

1) why is paying constitutionally relevant 2) you are forced to pay taxes which provide funds for juries and soldiers.

Not everyone is forced to pay income taxes, which is where the pool of money for juries and soldiers is taken from.


But you could be if the government chose to. But you were just pointing out the factual inaccuracy not showing how jury and draft are different right?
 
2011-03-01 04:33:22 PM  

Snot Monster from Outer Space: Christ almight: read your own words will you? Contexts in which Congress has demonstrated a necessary and proper role in the regulation of interstate commerce =/= "any and all contexts."

Perhaps you need to picture a Venn diagram: can you picture a great big circle that is labelled "any and all contexts" and then picture a much, much smaller circle entirely enclosed within that one which is labelled "contexts in which Congress has demonstrated a necessary and proper role in the regulation of interstate commerce." There--does that help you understand? If not, I'm afraid there may be no hope for you whatsoever.


I believe SCOTUS has ruled that it is up to congress to determine what is necessary and proper, not the SCOTUS. If congress said that forcing everyone to buy hybrids was necessary and proper for regulating interstate commerce, presumably of the auto market, then that law would be A-OK. Or buy guns, or whatever it is. Since congress decides what is necessary and proper, and they can ban inaction to as a necessary and proper measure to regulate interstate commerce, then they can ban any and all inaction, provided it can be connected to interstate commerce.

/hint: almost everything can
 
2011-03-01 04:33:23 PM  

MasterThief: This is a strawman - the argument is not about the control of activity or inactivity in generall, but rather a very specific kind of activity - commerce. Omitting the distinction between commercial activity and all activity is what makes this a strawman argument: it is substituting a proposition subtly different from the one offered, and rebutting that instead. And I don't remember anything in the rules of logic that say only the person making an argument can call an opposing argument a strawman.

The link you offered is talking about Wickard v. Filburn, which was a case about Congress' power to regulate private commercial activity. (Short version: The government was trying to stop Filburn from growing wheat that Filburn did not sell, but used on his own farm as animal feed. Amazingly, the Supreme Court held this to "affect" - and therefore be - interstate commerce, even though the wheat in question was never sold and never cross state lines.) Even assuming for the sake of argument that Wickard is correct - Congress can regulate any commercial activity that has even an indirect effect on interstate commerce, the holding of the case was related to commerce. All of the precedents mentioned by both Suderman and Tushnet - Wickard, health insurance reform, medical marijuana, etc. - are all about cases of "economic" activity or "commercial" activity, not things like the draft or jury service. I suppose you could try to make the argument that being in the military or on a jury is "commerce," but I doubt they'd be convincing.


So I take it you didn't even read the article I posted, did you? Just looked it over and formed your opinion of the article and the article's argument from the skim? You seem to be saying that no one is arguing that congress cannot regulate inactivity, but that congress cannot regulate this particular kind of inactivity. Let me point out, again, that people are in fact making the argument that Congress cannot regulate inactivity. Here is the title of the article I posted

"No, Congress Has Not Regulated Inactivity Before"

Here is a direct quote from the article:

"So no, Congress hasn't regulated inactivity before."

Just because you personally are not arguing that congress can't regulate inactivity doesn't mean others aren't arguing it. Setting these people right isn't a strawman.


MasterThief: Huh? I didn't mention the government forcing people to buy guns.


Oh, I'm sorry, you are just a troll who lies:

MasterThief: 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.

 
2011-03-01 04:34:42 PM  

MasterThief: 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.


Yes, well, we haven't ever had our healthcare held hostage by insurance companies, either, have we, Einstein?
 
2011-03-01 04:35:37 PM  

sprawl15: That is not health insurance commerce to the degree that we're talking about. And you know it.


Every single health insurance company is directly involved in massive interstate movements of money. They pay for out-of-state procedures (including times when they move people directly out of state in order to gain access to a procedure that is not available in-state), they reinsure with national--and international--reinsurance companies, the medical products they pay for are sourced from throughout the country. By any conceivable measure they are major players in interstate commercial transactions. You're clasping at utterly illusory straws.
 
2011-03-01 04:37:29 PM  

Snot Monster from Outer Space: The_Six_Fingered_Man: Not everyone is forced to pay income taxes

Not everyone will be forced to pay for their health insurance under HCR. There are considerable subsidies involved for the poor and low-wage.


The subsidies do not pay for the entire cost of the health insurance. At the very lowest end of the spectrum, those at 100% of FPL will be required to pay 2% of the cost of their premiums.
 
2011-03-01 04:38:09 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.


First of all, I should mention that I think the individual mandate will be upheld. It will be analyzed as a commerce clause / necessary and proper clause issue, and upheld under the rational used in Gonzales v. Raich. That case held that the federal government can regulate things that aren't "interstate commerce" so long as they are a necessary part of a larger regulatory scheme that does regulate interstate commerce. This is also essentially the same rationale that the Court applied in McCulloch v. Maryland two centuries earlier.

That said, anyone who thinks that the individual mandate is Constitutional under Article 1, Section 8, Clause 1 (the Tax & Spend clause or General Welfare Clause) has either never been to U.S. law school, or failed Constitutional Law. The only thing that all four of the federal judges who have heard cases about the individual mandate agree on is that it cannot be upheld under Article 1, Section 8, Clause 1. Even the judges that have upheld the mandate's contitutionality on other grounds have stated clearly that it can't be upheld under that clause.

One thing that every Con Law professor should be able to agree on is this: There is no federal congressional power to legislate or regulate for the general welfare. The power of Congress is limited to those ends enumerated in the Constitution, and those means that are necessary and proper to carry out those ends.

And finally, as has already been pointed out, neither the Draft nor Jury Duty is an excercise of Congress' power to regulate commerce. They are both applications of the necessary and proper clause, just not as applied to the commerce clause.
 
2011-03-01 04:38:51 PM  

sprawl15: Snot Monster from Outer Space: sprawl15: The 'something' must be a Constitutionally mandated power.

You've never heard of the proper meaning of the phrase "begging the question" have you?

The only way this question can make sense is if you have no idea what you're talking about and don't understand my post.

The constitution grants certain powers. To exercise those powers, the constitution also grants additional powers necessary and proper to carry out those first powers. Saying the mandate is 'necessary and proper' to itself, and thus is constitutional, is redundant and is "begging the question", so to speak.


The whole thing that is at stake in this argument is whether or not HRC properly falls under the Constitutionally mandated powers of the federal government. You are simply assuming that it does not as a premise of your argument. That is what "begging the question" (from the Latin for this particular kind of fallacy: petitio principii) refers to.
 
2011-03-01 04:39:32 PM  

Coprolalia: But you could be if the government chose to. But you were just pointing out the factual inaccuracy not showing how jury and draft are different right?


The government cannot force you to pay income taxes if you have no income.

I've already pointed out the professor's inaccuracy wrt the draft. The US does not prohibit pacifism in order to raise an army.
 
2011-03-01 04:39:36 PM  

Coprolalia: However, I think there is a clear argument that the mandate is a tool to make sure the regulation works.


The mandate is a tool to make sure people buy insurance. It is intended as a method to assuage insurance company profits. It is in no way required, legally. It may be 'required' practically to make the insurance companies not go under or jack up rates, but that is not the same thing.

Coprolalia: Can you clarify what you mean here? Duty must be done regardless of what you were doing?


"Inactivity" has nothing to do with jury duty. If you're working, already sitting on a jury, or you have nothing to do, you are called for jury duty under penalty. It has nothing to do with a specific activity or inactivity.

Coprolalia: How is mandating people buy health insurance not something you have to do regardless of what you were doing?


Juries are constitutionally enumerated per the 6th Amendment. Jury duty is 'necessary and proper' to fair juries. If the 6th Amendment was repealed, jury duty (and penalties for not showing up) would no longer be a federal power. The mandate is not a constitutional requirement. It is not 'necessary and proper' to any constitutionally enumerated power.

For 'necessary and proper' to even come into play, there must be a constitutionally enumerated power allowed outside the necessary and proper clause. That has not been shown.
 
2011-03-01 04:41:26 PM  

sprawl15: Serious Black: What's disingenuous about it?

The reason is completely irrelevant. If the HCR bill changed it such that interstate commerce would exist, interstate commerce would be applicable to regulate method of sale of the product. It still would not be applicable to mandate purchase of the product without a significant expansion of federal power, which wouldn't change the conversation one bit. But that's still an "if-then" that didn't happen, so it's two degrees of irrelevant.


States are allowed to create interstate compacts with each other according to Section 1333 of HR 3590. Said section also allows the Secretary of HHS to give a provider the ability to sell nationwide unless the state decides to opt-out of accepting nationwide plans. Unless you're talking about letting all health insurance providers sell plans based on the state where the business is incorporated rather than the state where the beneficiary lives (which I think you and I agree is a horrible idea), then there's already about as much of interstate sales as there can be without going to a federal exchange.

/would have preferred the federal exchange all the same
 
2011-03-01 04:42:30 PM  
Dennis Kucinich:

"We lost the initiative the minute that our party jumped into bed with the insurance companies. And soon they were looking at increasing taxes as a way of subsidizing insurance companies. It's just madness."

"We're redistributing the wealth of the nation upwards by giving the insurance companies 30 million new customers, $50 billion a year more in revenue."

"If we give insurance companies a monopoly on health care, if we put no controls on premiums, if we give them antitrust exemptions... Is this the direction we build in to protect health care for people, or to protect insurance companies?"
 
2011-03-01 04:43:01 PM  
If Congress can force you to buy health insurance, they can force you to purchase a GM car too.

After all, transportation is an economic activity too. Everyone gets transported at sometime. We can't have anymore of these economic freeloaders hitching rides with other people or relying on public transportation.

GM is now a Government operation, they need your money too.
 
2011-03-01 04:44:55 PM  

The_Six_Fingered_Man: Coprolalia: But you could be if the government chose to. But you were just pointing out the factual inaccuracy not showing how jury and draft are different right?

The government cannot force you to pay income taxes if you have no income.

I've already pointed out the professor's inaccuracy wrt the draft. The US does not prohibit pacifism in order to raise an army.


I am going to go a little off topic. Couldn't the federal government tax people who make no income? Just chalk it up as debt?
 
2011-03-01 04:45:10 PM  

Snot Monster from Outer Space: The whole thing that is at stake in this argument is whether or not HRC properly falls under the Constitutionally mandated powers of the federal government. You are simply assuming that it does not as a premise of your argument. That is what "begging the question" (from the Latin for this particular kind of fallacy: petitio principii) refers to.


I am assuming that it does not fall under the necessary and proper clause because that is not how that clause works. The mandate must be justified under interstate commerce, and it still may. I'm not going to say the mandate can be justified by the necessary and proper clause any more than I'm going to claim it can be justified by the 3rd Amendment, and refusal to do so is not "begging the question".

Snot Monster from Outer Space: Every single health insurance company is directly involved in massive interstate movements of money.


So what? That is still not interstate purchase of health insurance, which is the topic at hand.
 
2011-03-01 04:48:14 PM  

Serious Black: States are allowed to create interstate compacts with each other according to Section 1333 of HR 3590.


And if my aunt had balls, she'd be my uncle.

Serious Black: Unless you're talking about letting all health insurance providers sell plans based on the state where the business is incorporated rather than the state where the beneficiary lives (which I think you and I agree is a horrible idea), then there's already about as much of interstate sales as there can be without going to a federal exchange.


Yeah, it would be a farking terrible idea, but that doesn't matter. If it let health insurers behave like credit card companies, it would only be able to regulate method of sale. The government can no more mandate purchasing of health insurance, even under that bizarro world, than it can currently mandate you purchase a credit card.
 
2011-03-01 04:48:56 PM  

Coprolalia: The_Six_Fingered_Man: Coprolalia: But you could be if the government chose to. But you were just pointing out the factual inaccuracy not showing how jury and draft are different right?

The government cannot force you to pay income taxes if you have no income.

I've already pointed out the professor's inaccuracy wrt the draft. The US does not prohibit pacifism in order to raise an army.

I am going to go a little off topic. Couldn't the federal government tax people who make no income? Just chalk it up as debt?


Not without MASSIVELY rewriting the Internal Revenue Code. You are only taxed on your adjusted gross income. No income, no tax.
 
2011-03-01 04:49:16 PM  

sprawl15: Coprolalia: However, I think there is a clear argument that the mandate is a tool to make sure the regulation works.

The mandate is a tool to make sure people buy insurance. It is intended as a method to assuage insurance company profits. It is in no way required, legally. It may be 'required' practically to make the insurance companies not go under or jack up rates, but that is not the same thing.



I am pretty certain the Courts will give the governments stated purpose for the provision their deference in this case. I do not think the government will argue it was to assuage company profits.



Coprolalia: Can you clarify what you mean here? Duty must be done regardless of what you were doing?

"Inactivity" has nothing to do with jury duty. If you're working, already sitting on a jury, or you have nothing to do, you are called for jury duty under penalty. It has nothing to do with a specific activity or inactivity.



It's a penalty for not doing something. Don't show up to jury duty: there are penalties. Don't buy health insurance: their are penalties. Don't get a draft card: you are penalized.
 
2011-03-01 04:50:13 PM  

kibitzer788: Snot Monster from Outer Space: Christ almight: read your own words will you? Contexts in which Congress has demonstrated a necessary and proper role in the regulation of interstate commerce =/= "any and all contexts."

Perhaps you need to picture a Venn diagram: can you picture a great big circle that is labelled "any and all contexts" and then picture a much, much smaller circle entirely enclosed within that one which is labelled "contexts in which Congress has demonstrated a necessary and proper role in the regulation of interstate commerce." There--does that help you understand? If not, I'm afraid there may be no hope for you whatsoever.

I believe SCOTUS has ruled that it is up to congress to determine what is necessary and proper, not the SCOTUS.


Then you believe wrong. SCOTUS properly gives great deference to Congress on the issue, but it does not cede the power to decide this issue to them.

If congress said that forcing everyone to buy hybrids was necessary and proper for regulating interstate commerce, presumably of the auto market, then that law would be A-OK. Or buy guns, or whatever it is. Since congress decides what is necessary and proper, and they can ban inaction to as a necessary and proper measure to regulate interstate commerce, then they can ban any and all inaction, provided it can be connected to interstate commerce.

/hint: almost everything can


And "almost everything" isn't "everything," so that concession in itself confirms my original point (that the TFA is not an argument that says that Congress has a blank check to regulate any and all inactivity, but rather a very narrow argument to the effect that merely pointing out that the HCR "regulates inactivity" does not amount to a meaningful challenge to its constitutionality). But, further, "almost everything" is just stupid hyperbole. The Commerce Clause has not, in fact, been invoked to regulate "almost everything." It has been invoked to regulate a wide variety of things because we are engaged in a very wide variety of commercial activities. Even your attempt to come up with examples of "crazy" extensions of the Commerce Clause in your post clearly relate to activities that are, in fact, commercial in nature. Even everyone's favorite "crazy" extension of the Commerce Clause--Gonzales v. Raich--involves an activity that has clear commercial implications. It would be child's play to come up with an infinite list of activities that no federal court would ever consider allowing Congress to evoke the Commerce Clause in order to regulate.

Saying "I don't like some of the Supreme Court's extensions of the Commerce Clause" isn't the same thing as "the Supreme Court has declared that the Commerce Clause is universally applicable to all human activity of any kind!!!!" no matter how much you want it to.
 
2011-03-01 04:51:31 PM  
*RAGE governor disconnected*

I used to think I was a Republican because I was for things like welfare reform. Now I'm supposed to be against legislation that makes people PAY THEIR OWN FARKING WAY? Go ahead you stupid "baggers" call me a RINO. I'll run my horn right the FARK through your chest.

Who the FARK in their right mind doesn't TRULY believe that if you are able to pay for it you shouldn't have health insurance? Spare me all the self-righteous BULLSHIAT about "gubmint can't make me buy health care insurance". It shouldn't have to force you, a-hole! You should responsible enough to take care of yourself. If you aren't, then FARK you! You deserve what you get and if that means a "tax penalty" or a swift kick in the ass then so be it. I'd much prefer that if you were stupid enough to forego buying your own insurance, the ER admitting nurse would be able to kick your stupid sick/injured/diseased ass out into the street to free up a Doc for somebody smarter (like me, god forbid).

Unfortunately, that isn't the country we live in, so I'll have to settle for the tax penalty.

You a-holes really believe that everyone should be "free" to willfully ignore the risk of not being insured because when and if they ever need it, somebody else will pick up the tab? How the FARK does that even make sense?

*RAGE governor reconnected*

/still for welfare reform
//RINO my ass
 
2011-03-01 04:51:45 PM  

sprawl15: I am assuming that it does not fall under the necessary and proper clause because that is not how that clause works.


And, once again, you're assuming what should be your conclusion as a premise of your argument. That is circular reasoning or "begging the question."

Making ever plainer statements of your argumentative fallacy is not a way of extricating yourself from that fallacy.
 
2011-03-01 04:53:13 PM  

sprawl15: Snot Monster from Outer Space: The whole thing that is at stake in this argument is whether or not HRC properly falls under the Constitutionally mandated powers of the federal government. You are simply assuming that it does not as a premise of your argument. That is what "begging the question" (from the Latin for this particular kind of fallacy: petitio principii) refers to.

I am assuming that it does not fall under the necessary and proper clause because that is not how that clause works. The mandate must be justified under interstate commerce, and it still may. I'm not going to say the mandate can be justified by the necessary and proper clause any more than I'm going to claim it can be justified by the 3rd Amendment, and refusal to do so is not "begging the question".

Snot Monster from Outer Space: Every single health insurance company is directly involved in massive interstate movements of money.

So what? That is still not interstate purchase of health insurance, which is the topic at hand.


No, the "topic at hand" is whether or not health insurance is part of "commerce between the states." Nobody claimed that health insurance could be directly purchased across state boundaries, and nor is that remotely relevant to the constitutional questions at hand.
 
2011-03-01 04:57:55 PM  

Coprolalia: I do not think the government will argue it was to assuage company profits.


That's the exact argument. You said it yourself: "However, regulations such as the inability to deny people coverage will not work if people are allowed to game the system by not buying coverage until they are sick."

Coprolalia: It's a penalty for not doing something. Don't show up to jury duty: there are penalties. Don't buy health insurance: their are penalties. Don't get a draft card: you are penalized.


Your argument is making my head hurt. You're mixing up legalese with colloquial language, and it's resulting in stupid analogies.

You have to do X, else Y.

X has to be an enumerated power. Y is normally a 'necessary and proper'. In the case of jury duty, X is the 6th Amendment. Y is the penalty for not showing up. In the case of the health care mandate, the mandate is either X or Y, it is not both.

A law cannot be passed as 'necessary and proper' to enforce itself.
 
2011-03-01 05:00:11 PM  

sprawl15: In the case of jury duty, X is the 6th Amendment.


We've covered this multiple times in this thread. The sixth amendment says nothing, at all, about any individual "duty" to serve on a jury.
 
2011-03-01 05:03:13 PM  

sprawl15: X has to be an enumerated power. Y is normally a 'necessary and proper'.


Oh, and as for HCR:

Regulating commerce between the states is the enumerated power.
The individual mandate is the "necessary and proper" action taken to achieve that end.

Just as for juries:

Providing for people's right to a jury trial is the enumerated power, and enforcing an individual mandate to make oneself available to jury duty is the "necessary and proper" action taken to achieve that end.
 
2011-03-01 05:08:30 PM  

Snot Monster from Outer Space: sprawl15: I am assuming that it does not fall under the necessary and proper clause because that is not how that clause works.

And, once again, you're assuming what should be your conclusion as a premise of your argument. That is circular reasoning or "begging the question."

Making ever plainer statements of your argumentative fallacy is not a way of extricating yourself from that fallacy.


Uh...no. You either haven't been paying attention or are intentionally being thick. Saying something doesn't meet the definition of a category is not a logical fallacy by default. Either show that my definition is wrong, or stop whining that it doesn't meet your worldview.

Snot Monster from Outer Space: Nobody claimed that health insurance could be directly purchased across state boundaries


Then the purchase of health insurance is not interstate commerce and not mandatable by the interstate commerce clause.
 
2011-03-01 05:10:17 PM  
The government regulates my ability to not kick this guy in the nads for his bad comparisons
 
2011-03-01 05:11:31 PM  

Snot Monster from Outer Space: sprawl15: In the case of jury duty, X is the 6th Amendment.

We've covered this multiple times in this thread. The sixth amendment says nothing, at all, about any individual "duty" to serve on a jury.


Simplistic example is simple. Call the internets.

Snot Monster from Outer Space: Regulating commerce between the states is the enumerated power.
The individual mandate is the "necessary and proper" action taken to achieve that end.


THIS is what 'begging the question' is. You're saying the mandate is constitutional because it is 'necessary and proper' to achieve a mandate. It's recursive.
 
2011-03-01 05:14:55 PM  
My inclination would be to point out that neither jury duty nor the draft requires you to buy a privately created and sold product.

I'd also tend to argue that, just from a layman's perspective, the army and juries seem to be explicitly demanded services that the federal government has to provide according to the constitution, whereas there's no actual demand that the feds force people to have health insurance in there.

But, hey, he's a law professor, so I imagine he's much more familiar with how flimsy an excuse can be and still be considered legally valid.

//We would not even be having this stupid argument if Obama had manned up and supported a tax increase instead of back-ending the taxes into a new system that resembles a cell phone contract more than a law. Non-participation fee indeed.

//Feels kind of strange to be annoyed by a politician trying to not break a campaign promise. But there it is.
 
2011-03-01 05:15:26 PM  

sprawl15: relcec: sprawl15: relcec: I think there is a reasonable argument that can be made that the government can regulate our participation in the health care market

The mandate has little to do with the health care market, but everything to do with the health insurance market. There is no interstate health insurance market.

doesn't matter. everyone avails themselves of healthcare in some form at some time

It absolutely does matter. You cannot justify health insurance under interstate commerce by saying health care affects interstate commerce. They are different things. The sale of police badges across state lines does not allow the federal government to regulate local police forces under the interstate commerce clause.



I'm not saying healthcare affects interstate commerce, I'm saying it is interstate commerce and we are all market participants at this point and as such congress can regulate our behavior in that market in ways that are rationally related to a legitimate interest.

some people never buy insurance, but they still go to the ER a lot. these people are participating in a healthcare market that is interstate, and often global, in nature. the meds, the nurses, the steel and concrete that built the hospital, the IT services, a large part of what is in those ERs is either sourced out of state or out of country. these people are market participants in an interstate market and as such congress can require them to purchase health insurance.
I already mentioned what the government interest was.
everyone in this country at some time or another, be it on a daily basis or on their death bed is a participant in this interstate market, and as such congress can require them to participate in a insurance scheme.

now I'm not aware of them ever attaching duties on end point consumers like they have on say interstate shipping companies to bond their trucks, but I don't think it's an unreasonable argument.
 
2011-03-01 05:16:33 PM  

Snot Monster from Outer Space: sprawl15: In the case of jury duty, X is the 6th Amendment.

We've covered this multiple times in this thread. The sixth amendment says nothing, at all, about any individual "duty" to serve on a jury.


That's not how the Constitution works, you know. The Constitution mentions juries four times, I believe. Thus, there is constitutional authority for the use of "juries." To figure out what that implies in terms of the powers of government to compel individual service on grand or petit juries, you need to dig a little deeper, and look at the common law or existing statutory laws. Jury service was and has always been considered to be an incident of citizenship. No additional constitutional text was or is necessary to reflect that individual jury service may be compelled by the Constitution (on the federal level) and by the respective constitutions of the various states, commonwealths, and territories.
 
2011-03-01 05:17:21 PM  

Snot Monster from Outer Space: Regulating commerce between the states is the enumerated power.
The individual mandate is the "necessary and proper" action taken to achieve that end.


Look, there's a rabbit in my hat! I wonder how that got there?!?
 
2011-03-01 05:20:07 PM  
Ryan2065:

So I take it you didn't even read the article I posted, did you? Just looked it over and formed your opinion of the article and the article's argument from the skim? You seem to be saying that no one is arguing that congress cannot regulate inactivity, but that congress cannot regulate this particular kind of inactivity. Let me point out, again, that people are in fact making the argument that Congress cannot regulate inactivity. Here is the title of the article I posted

"No, Congress Has Not Regulated Inactivity Before"

Here is a direct quote from the article:

"So no, Congress hasn't regulated inactivity before."

Just because you personally are not arguing that congress can't regulate inactivity doesn't mean others aren't arguing it. Setting these people right isn't a strawman.


Every mention of activity in the Reason link you posted, or the NYT link that it was based on, was a discussion of economic/commercial activity - growing wheat, buying weed, getting health insurance. NOT all activity, as Wills argument goes, not jury service, not the draft. Just one kind of activity: commerce.

MasterThief: Huh? I didn't mention the government forcing people to buy guns.

Oh, I'm sorry, you are just a troll who lies:

MasterThief: 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.

Please check the link in the initial post. That is 1) a quote from Sen. Jeff Sessions in a Senate hearing, not from me, 2) about a law passed in 1792 that is no longer in force.

Since I cannot choke you over TCP/IP for being clueless, please find the nearest belt, drawstring, or electrical cord, and do so yourself. 30 seconds should be enough. From what I've seen, it will not affect your ability to argue coherently.
 
2011-03-01 05:22:54 PM  

relcec: sprawl15:Interstate Commerce talk


Literally everything - every little thing - you do impacts interstate commerce. When you get up in the morning, whether you eat enough roughage to have regular bowel movements, whether you work as a taxi driver or an opera singer, whether you drink socially or to get drunk (or not at all), whether you have sex daily or monthly (or not at all). These, and more. The ties are just as direct.

My question to you is this. As a normative matter (that is, in the abstract of what you believe "should" be, not what you believe "is"), do you want the federal government to be able to regulate those choices?

Just a yes or no.
 
2011-03-01 05:51:08 PM  

MasterThief: 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 eco ...


Did you just open with an appeal to history? Like, "It's been done this way for a long time so that makes it correct" type BS?
 
2011-03-01 06:13:29 PM  
MasterThief:

words

What you don't grasp is the concept of "reasoning by analogy." It's not that difficult.

The Constitution does not expressly empower Congress to compel people to purchase firearms for military service. Rather, it speaks in general terms about "raising a militia" or some such. Nonetheless, the founders believed the power to compel the purchase of firearms was implied by the power to raise a militia.

Likewise, the Constitution nowhere expressly empowers Congress to compel jury duty. Rather, it grants a right to certain defendants to trial by jury, but it does not state how juries are to be assembled. Nonetheless, for the duration of the Republic, Americans have understood that the power to compel jury service is implied.

Nowhere does the Constitution expressly empower Congress to mandate the purchase of health insurance. Instead, it speaks in vague terms about the power to "regulate commerce." Congressional authority to mandate health insurance is implied by the commerce clause.
 
2011-03-01 06:19:42 PM  

Garet Garrett: relcec: sprawl15:Interstate Commerce talk

Literally everything - every little thing - you do impacts interstate commerce. When you get up in the morning, whether you eat enough roughage to have regular bowel movements, whether you work as a taxi driver or an opera singer, whether you drink socially or to get drunk (or not at all), whether you have sex daily or monthly (or not at all). These, and more. The ties are just as direct.

My question to you is this. As a normative matter (that is, in the abstract of what you believe "should" be, not what you believe "is"), do you want the federal government to be able to regulate those choices?

Just a yes or no.


The Constitutional test for Congress' authority to regulate interstate commerce is not "any connection with commerce, however slight." Rather, to regulate ostensibly "local" activities, there must be a "close and substantial relationship" to interstate commerce. Hence, the Supreme Court has said in recent years that there is an insufficient nexus between violence against women and interstate commerce for the federal Violence Against Women Act to be within the scope of the commerce power.

It isn't completely clear where the line is drawn. But to me, the basic import of the Morrison decision is that Congress must really be regulating conduct that is pretty clearly economic.
 
2011-03-01 06:49:30 PM  
Otherwise Just Fine Quote 2011-03-01 05:51:08 PM


Did you just open with an appeal to history? Like, "It's been done this way for a long time so that makes it correct" type BS?

>>>>

That's how the law works
 
2011-03-01 06:51:30 PM  

Big Al: Otherwise Just Fine Quote 2011-03-01 05:51:08 PM


Did you just open with an appeal to history? Like, "It's been done this way for a long time so that makes it correct" type BS?

>>>>

That's how the law works


Sort of. But only sort of.
 
2011-03-01 06:51:48 PM  

Snot Monster from Outer Space: BullBearMS's little brain fart above about the commerce clause applying only to transactions "between states"


Talking about brain farts.....perhaps you ought to brush up on the commerce clause, particularly the part that says "among the several states". Perhaps you can get a 3rd grader to explain it to you.

captain_heroic44: Congressional authority to mandate health insurance is implied by the commerce clause.


No, it's not. If I don't buy insurance, no commerce is taking place, therefore there is no commerce for them to regulate. Mandating commerce, so that you can then regulate it, is a far cry from regulating existing commerce. And nothing about the commerce clause gives them power to mandate commerce to start with. The argument that they can regulate it because it is commerce "among the several states" AFTER it's been purchased means they can therefore require you to purchase it is, as has already been pointed out, a recursive argument. It is an entire new power attempting to be crammed into a clause that NEVER was intended to include such a thing.
 
2011-03-01 07:11:45 PM  

FubarBDilligaf: No, it's not. If I don't buy insurance, no commerce is taking place, therefore there is no commerce for them to regulate. Mandating commerce, so that you can then regulate it, is a far cry from regulating existing commerce. And nothing about the commerce clause gives them power to mandate commerce to start with. The argument that they can regulate it because it is commerce "among the several states" AFTER it's been purchased means they can therefore require you to purchase it is, as has already been pointed out, a recursive argument. It is an entire new power attempting to be crammed into a clause that NEVER was intended to include such a thing.


Because you'll never engage in commerce in health care.
 
2011-03-01 07:22:48 PM  
MasterThief:

No, he's a law professor. But in a way, most law profs are kind of like RINOs.

A healthy majority of Congressional Republican politicians are lawyers.


"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 Defense,"

Times change. We no longer need to "Provide for the Common Defense" as much as we need to "Promote the General Welfare".


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.

You know our current President taught Constitutional Law, right?
 
2011-03-01 07:30:31 PM  

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


wat?
 
2011-03-01 07:42:13 PM  
 
2011-03-01 07:57:21 PM  

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

wat?

Batson v. Kentucky

. Yeah, I rolled my eyes the first time I read that case as well.
 
2011-03-01 08:10:05 PM  

sprawl15: Then the purchase of health insurance is not interstate commerce and not mandatable by the interstate commerce clause.


Ah yes. Just as the interstate commerce clause in no way applies to an airline ticket if you buy it from a company that is registered in your state.

The applicability of the interstate commerce law applies to the nature of the business, not to where individual purchases of the business's products occur.

Are you taking part in some kind of competition to say the stupidest thing possible on Fark today or something?
 
2011-03-01 08:13:20 PM  

sprawl15: Snot Monster from Outer Space: sprawl15: In the case of jury duty, X is the 6th Amendment.

We've covered this multiple times in this thread. The sixth amendment says nothing, at all, about any individual "duty" to serve on a jury.

Simplistic example is simple. Call the internets.

Snot Monster from Outer Space: Regulating commerce between the states is the enumerated power.
The individual mandate is the "necessary and proper" action taken to achieve that end.

THIS is what 'begging the question' is. You're saying the mandate is constitutional because it is 'necessary and proper' to achieve a mandate. It's recursive.


Good Christ you are amazing. No, this is not "begging the question" because I'm not deriving a conclusion from this. Begging the question is assuming your conclusion as a premise of your argument. I'm stating a proposition. It isn't "begging the question" to say "I believe that this statute is unconstitutional." It's begging the question to say "this statute is unconstitutional because its terms are clearly not sanctioned by the constitution." That was what you were doing.
 
2011-03-01 08:15:04 PM  

Garet Garrett: Snot Monster from Outer Space: sprawl15: In the case of jury duty, X is the 6th Amendment.

We've covered this multiple times in this thread. The sixth amendment says nothing, at all, about any individual "duty" to serve on a jury.

That's not how the Constitution works, you know. The Constitution mentions juries four times, I believe. Thus, there is constitutional authority for the use of "juries." To figure out what that implies in terms of the powers of government to compel individual service on grand or petit juries, you need to dig a little deeper, and look at the common law or existing statutory laws. Jury service was and has always been considered to be an incident of citizenship. No additional constitutional text was or is necessary to reflect that individual jury service may be compelled by the Constitution (on the federal level) and by the respective constitutions of the various states, commonwealths, and territories.


Read the thread. You're repeating an argument I already made. I wasn't arguing that compelling people to serve on juries are unconstitutional, just saying that the sixth amendment is not what establishes their constitutionality--as you plainly understand.
 
2011-03-01 08:17:00 PM  

Garet Garrett: Literally everything - every little thing - you do impacts interstate commerce...whether you have sex daily or monthly (or not at all)


Um, unless you're ordering hookers from another state (which I believe is already illegal) how on earth do you imagine that this affects "interstate commerce"?
 
2011-03-01 08:18:28 PM  

FubarBDilligaf: Talking about brain farts.....perhaps you ought to brush up on the commerce clause, particularly the part that says "among the several states". Perhaps you can get a 3rd grader to explain it to you.


Dude, I was quoting BullBearMS. If you want to try to explain it to him, go ahead.
 
2011-03-01 08:21:28 PM  

FubarBDilligaf: If I don't buy insurance, no commerce is taking place, therefore there is no commerce for them to regulate.


That is not how "regulating commerce" works. You need not be personally participating in the commercial activity being regulated in order to be subject to the regulations Congress imposes in order to regulate the entire field of that commercial practice. Thus you don't have to buy a plane ticket to be subject to Federal regulations applying to air traffic.
 
2011-03-01 08:29:27 PM  

Snot Monster from Outer Space: Thus you don't have to buy a plane ticket to be subject to Federal regulations applying to air traffic.


How else might you be subject to the regulations if not actually engaged in the commerce action?

Snot Monster from Outer Space: Um, unless you're ordering hookers from another state (which I believe is already illegal) how on earth do you imagine that this affects "interstate commerce"?


Ever bought lingerie for your woman? How about condoms? Birth control? What about KY Warming Lotion? All interstate commerce.
 
2011-03-01 08:29:48 PM  

Snot Monster from Outer Space: sprawl15: Coprolalia: Section I does not explicitly give Congress the power to institute a draft. Neither does the 6th Amendment provide the power to raise a jury. Rather, it comes from the necessary and proper clause.

The power to have an individual mandate also comes from the necessary and proper clause.

The necessary and proper clause is a modification to specific enumerations: it means whatever we allow you, we also allow you the tools to do that. We will let you have an army, and whatever is necessary and proper to create that army. We will let you have jury trials, and whatever is necessary and proper to have jury trials. Neither of those are 'regulating inactivity', they're regulating constitutionally mandated activity.

Great. HCR is required in order to regulate the interstate commerce in health insurance and other health products and services (a market that threatens the stability of the entire US economy). It is unquestionable that the government has the right to regulate that market under the Commerce Clause. Now all the govt. needs to do is to argue that HCR is "necessary and proper" means to that end: i.e., that it can't meaningfully regulate that market without a mechanism of this kind.


Theres nothing about health insurance that involves interstate commerce, which is the real argument against the individual mandate. Essentially, allowing the feds to step in this way would render enumerated powers meaningless and allow them to take over any function of the states, which is unconstitutional. For example, the feds could tell you exactly what you are allowed to eat, drink, build, get licensed for,etc. in any state. The regulation of inaction argument is a straw man, its all about the commerce clause.
 
2011-03-01 08:31:11 PM  

captain_heroic44: Nowhere does the Constitution expressly empower Congress to mandate the purchase of health insurance. Instead, it speaks in vague terms about the power to "regulate commerce." Congressional authority to mandate health insurance is implied by the commerce clause.


That's a better General Welfare argument than commerce clause. That being said...

THIS IS A FREAKING TAX. Right there at the start of Section 8. It is a tax for the purpose of promoting the general welfare of the United States. Furthermore, such a tax is bolstered by its intention - to regulate interstate commerce. This thing is so constitutionally sound, it's absurd... but not as absurd as those Fed Soc activist judges who try to make a big splash by playing off of political platitudes.

This argument doesn't matter. Supreme Court will define it very narrowly as falling within Congress' plenary taxation power, and that will be that. No grand question on the scope of the Commerce Clause, because quite frankly, the Supes don't want to deal with it here. This is a politically hard case, and as every one of those justices know, hard cases make bad law.
 
2011-03-01 08:32:33 PM  

Animatronik: Theres nothing about health insurance that involves interstate commerce


Except for the billions upon billions of dollars that move between states as a direct result of the health insurance business. Yeah, apart from that, there's no connection whatsoever.
 
2011-03-01 08:34:57 PM  

The_Six_Fingered_Man: Ever bought lingerie for your woman? How about condoms? Birth control? What about KY Warming Lotion? All interstate commerce.


Um, are you seriously trying to suggest that you could walk into even the most lunatic federal district court in the land and try to make an argument for the constitutionality of a law regulating the frequency of copulation because said copulators might buy their condoms from an out-of-state supplier? Do you actually need someone to point out why this is Charlie Sheen crazy or will you withdraw the example?
 
2011-03-01 08:38:43 PM  

The_Six_Fingered_Man: How else might you be subject to the regulations if not actually engaged in the commerce action?


Try pointing a laser pointer at an airplane and you'll find out.

But that's just a recent example that was in the news. There are lots of other examples of federal laws pertaining to the airline business that will have an impact on you regardless of whether you participate in the commercial activity at hand.
 
2011-03-01 08:40:58 PM  

AnotherDisillusionedCollegeStudent: captain_heroic44: Nowhere does the Constitution expressly empower Congress to mandate the purchase of health insurance. Instead, it speaks in vague terms about the power to "regulate commerce." Congressional authority to mandate health insurance is implied by the commerce clause.

That's a better General Welfare argument than commerce clause. That being said...

THIS IS A FREAKING TAX. Right there at the start of Section 8. It is a tax for the purpose of promoting the general welfare of the United States. Furthermore, such a tax is bolstered by its intention - to regulate interstate commerce. This thing is so constitutionally sound, it's absurd... but not as absurd as those Fed Soc activist judges who try to make a big splash by playing off of political platitudes.

This argument doesn't matter. Supreme Court will define it very narrowly as falling within Congress' plenary taxation power, and that will be that. No grand question on the scope of the Commerce Clause, because quite frankly, the Supes don't want to deal with it here. This is a politically hard case, and as every one of those justices know, hard cases make bad law.


I think that the Supremes might be hard pressed to reclassify the penalty into a tax, given their prior decisions about what constitutes a tax.

Bailey v. Drexel Furniture stated: "there comes a time in the extension of the penalizing features of the so-called tax when it loses its character as such and becomes a mere penalty with the characteristics of regulation and punishment."

US v La Franca offered: "A tax is an enforced contribution to provide for the support of government; a penalty, as the word is here used, is an exaction imposed by statute as punishment for an unlawful act." Justice Souter added: "if the concept of penalty means anything, it means punishment for an unlawful act or omission, and a punishment for an unlawful omission is what this exaction is." By contrast, "a tax is a pecuniary burden laid upon individuals or their property, regardless of their consent, for the purpose of defraying the expenses of government or of undertakings authorized by it." (I realize that some Farkers might jump on this part)

Furthermore, Congress decided to remove this penalty from the normal tax collection procedures. In fact, they originally called it an excise tax, then changed the wording in the reconciliation bill to a penalty. This shows that Congress knows how to write a tax, and in the beginning it did so, only to change it, likely for political reasons. Therefore, the penalty cannot stand on taxation power grounds.
 
2011-03-01 08:42:34 PM  

Snot Monster from Outer Space: The_Six_Fingered_Man: Ever bought lingerie for your woman? How about condoms? Birth control? What about KY Warming Lotion? All interstate commerce.

Um, are you seriously trying to suggest that you could walk into even the most lunatic federal district court in the land and try to make an argument for the constitutionality of a law regulating the frequency of copulation because said copulators might buy their condoms from an out-of-state supplier? Do you actually need someone to point out why this is Charlie Sheen crazy or will you withdraw the example?


The example is no more crazy than the Supreme Court saying that the growing and consumption of plant grown entirely within one state significantly affects interstate commerce, even though that commerce is illegal in the eyes of the Federal government.
 
2011-03-01 08:43:11 PM  

The_Six_Fingered_Man: Snot Monster from Outer Space: The_Six_Fingered_Man: Ever bought lingerie for your woman? How about condoms? Birth control? What about KY Warming Lotion? All interstate commerce.

Um, are you seriously trying to suggest that you could walk into even the most lunatic federal district court in the land and try to make an argument for the constitutionality of a law regulating the frequency of copulation because said copulators might buy their condoms from an out-of-state supplier? Do you actually need someone to point out why this is Charlie Sheen crazy or will you withdraw the example?

The example is no more crazy than the Supreme Court saying that the growing and consumption of plant grown entirely within one state significantly affects interstate commerce, even though that commerce is illegal in the eyes of the Federal government.


But alas, I must be gone. I'll check in later.
 
2011-03-01 08:44:59 PM  

The_Six_Fingered_Man: Snot Monster from Outer Space: Thus you don't have to buy a plane ticket to be subject to Federal regulations applying to air traffic.

How else might you be subject to the regulations if not actually engaged in the commerce action?

Snot Monster from Outer Space: Um, unless you're ordering hookers from another state (which I believe is already illegal) how on earth do you imagine that this affects "interstate commerce"?

Ever bought lingerie for your woman? How about condoms? Birth control? What about KY Warming Lotion? All interstate commerce.


Yes, those things are interstate commerce because they are made in one state and sold in another. Or imported.

A better example would be buying food in a restaurant, building codes, things like that. Do you think that all restaurant health inspections, building codes, and other strictly local activities should be federal? How about when you have a garage sale, is that a fedrally regulated activity? And if so, why bother with any other govt at all? Why not make ALL govt in the U.S. part of the federal govt?
 
2011-03-01 08:50:51 PM  

Animatronik: The_Six_Fingered_Man: Snot Monster from Outer Space: Thus you don't have to buy a plane ticket to be subject to Federal regulations applying to air traffic.

How else might you be subject to the regulations if not actually engaged in the commerce action?

Snot Monster from Outer Space: Um, unless you're ordering hookers from another state (which I believe is already illegal) how on earth do you imagine that this affects "interstate commerce"?

Ever bought lingerie for your woman? How about condoms? Birth control? What about KY Warming Lotion? All interstate commerce.

Yes, those things are interstate commerce because they are made in one state and sold in another. Or imported.

A better example would be buying food in a restaurant, building codes, things like that. Do you think that all restaurant health inspections, building codes, and other strictly local activities should be federal? How about when you have a garage sale, is that a fedrally regulated activity? And if so, why bother with any other govt at all? Why not make ALL govt in the U.S. part of the federal govt?


... Well the US Constitution is the highest law in the land, it's not really rocket surgery here buddy.
 
2011-03-01 08:58:10 PM  

AnotherDisillusionedCollegeStudent: THIS IS A FREAKING TAX. Right there at the start of Section 8. It is a tax for the purpose of promoting the general welfare of the United States. Furthermore, such a tax is bolstered by its intention - to regulate interstate commerce. This thing is so constitutionally sound, it's absurd... but not as absurd as those Fed Soc activist judges who try to make a big splash by playing off of political platitudes.

This argument doesn't matter. Supreme Court will define it very narrowly as falling within Congress' plenary taxation power, and that will be that. No grand question on the scope of the Commerce Clause, because quite frankly, the Supes don't want to deal with it here. This is a politically hard case, and as every one of those justices know, hard cases make bad law.


No. It's not. That's the only thing that all four of the federal judges that have ruled on this case agree on. The government's position that this can be defended under Art. 1 Sec. 8 Cls. 1 is currently 0 for 4 in the district courts. Even the two courts who upheld the mandates as constitutional did so under the Commerce power, after clearly stating that they were rejecting the government's position that this is a tax.
 
2011-03-01 09:00:33 PM  

Stylux: Animatronik: The_Six_Fingered_Man: Snot Monster from Outer Space: Thus you don't have to buy a plane ticket to be subject to Federal regulations applying to air traffic.

How else might you be subject to the regulations if not actually engaged in the commerce action?

Snot Monster from Outer Space: Um, unless you're ordering hookers from another state (which I believe is already illegal) how on earth do you imagine that this affects "interstate commerce"?

Ever bought lingerie for your woman? How about condoms? Birth control? What about KY Warming Lotion? All interstate commerce.

Yes, those things are interstate commerce because they are made in one state and sold in another. Or imported.

A better example would be buying food in a restaurant, building codes, things like that. Do you think that all restaurant health inspections, building codes, and other strictly local activities should be federal? How about when you have a garage sale, is that a fedrally regulated activity? And if so, why bother with any other govt at all? Why not make ALL govt in the U.S. part of the federal govt?

... Well the US Constitution is the highest law in the land, it's not really rocket surgery here buddy.


Right. Read what it says, do some thinking, and come back and make a thought-based post.

Why do ylu think medical marijuana is legal in some states but not others?
 
2011-03-01 09:02:20 PM  

Talondel: No. It's not. That's the only thing that all four of the federal judges that have ruled on this case agree on. The government's position that this can be defended under Art. 1 Sec. 8 Cls. 1 is currently 0 for 4 in the district courts. Even the two courts who upheld the mandates as constitutional did so under the Commerce power, after clearly stating that they were rejecting the government's position that this is a tax.


This kinda thing is why I support having congress state their constitutional authority in each law. They are fishing several differing argument in order to find an reasoning that will support the law.
 
2011-03-01 09:17:30 PM  

AnotherDisillusionedCollegeStudent: That's a better General Welfare argument than commerce clause. That being said...


The point was to illustrate the relationship between "express" and "implied." The Constitution need not enumerate in detail everything Congress can do, because it speaks in general terms instead. The power to raise militias implies a power to mandate the purchase of firearms for use in a militia. Or to buy firearms and issue them to militia members. Or whatever.


THIS IS A FREAKING TAX. Right there at the start of Section 8. It is a tax for the purpose of promoting the general welfare of the United States.


I agree in principle. But part of the political problem is that Congress wanted to impose a tax, but didn't want to call it a tax for political reasons. So they called it a "mandate," instead, and made it enforceable via the tax power. I don't see a legal problem with this approach, and I think it will ultimately pass muster before a conservative Supreme Court. But I can sort of understand why some people are confused.


Furthermore, such a tax is bolstered by its intention - to regulate interstate commerce. This thing is so constitutionally sound, it's absurd... but not as absurd as those Fed Soc activist judges who try to make a big splash by playing off of political platitudes.


I know of no authority for the proposition that the constitutionality of a tax can be "bolstered" by its intent to regulate interstate commerce. On the contrary, authority from the 20's says exactly the opposite: that a tax imposed for the purpose of regulating commerce is unconstitutional unless what is being taxed also lies within the scope of the commerce power. While widely criticized, and not cited by any court in several decades, the authority was never technically overturned. If memory serves, the case was Baily v. Drexel Furniture. But I'm not 100% on that, and I'm too lazy to look it up just now.


This argument doesn't matter. Supreme Court will define it very narrowly as falling within Congress' plenary taxation power, and that will be that.

I think so. But because of the recent politicization of the Supreme Court, I think it could be a 5-4 decision.


No grand question on the scope of the Commerce Clause, because quite frankly, the Supes don't want to deal with it here. This is a politically hard case, and as every one of those justices know, hard cases make bad law.


I tend to agree with you.
 
2011-03-01 09:19:34 PM  
But to be clear, I don't think DoJ should waltz into the courtroom with only a tax power argument. They need to (and will) argue any of several bases for ACA's constitutionality. Commerce Clause included.
 
2011-03-01 09:21:20 PM  

Snot Monster from Outer Space: Animatronik: Theres nothing about health insurance that involves interstate commerce

Except for the billions upon billions of dollars that move between states as a direct result of the health insurance business. Yeah, apart from that, there's no connection whatsoever.


Again, if it is not an activity that to a large extent involves crossing state lines, you're going to have a tough time arguing that its federally-regulated. For example, there are companies that do business in multiple states but they have to abide by the laws of each state because the fact that they do business in more than one state does not make it interstate commerce.

example: Toll Bros. Just because they build houses in Virginia doesn't mean that they can ignore building codes in Pennsylvania.

When it comes to food and drug products that are sold nationally, we never hear about individual state laws unless a particular state wants to tack something extra on top of federal regs. The reason is that this type of commerce is predominantly an interstate federal activity, so as a whole it falls in the domain of the FDA and USDA. some things go to state courts and the feds lose. Thats the way it goes, and this is no different.

Also, please don't fall into the trap of "well SOME federally-regulated activities MAY take place entirely within one state, therefore ANY activity is a federal activity even if from the individual's perspective it takes place ENTIRELY within one state!"

If you believe that then you may as well throw out Article I of the constitution, and by the way, I have large tracts in Florida i'd like to offer to you for sale.
 
2011-03-01 09:30:55 PM  

The_Six_Fingered_Man: The example is no more crazy than the Supreme Court saying that the growing and consumption of plant grown entirely within one state significantly affects interstate commerce, even though that commerce is illegal in the eyes of the Federal government.


Just to be clear: you're saying that if Congress lifted the prohibition on the interstate movement of marijuana, that it could then permissibly ban the growing and consumption of marijuana at the state level?

You seem to have grossly misunderstood Wickard v. Filburn.
 
2011-03-01 09:37:17 PM  

The_Six_Fingered_Man: Bailey v. Drexel Furniture stated: "there comes a time in the extension of the penalizing features of the so-called tax when it loses its character as such and becomes a mere penalty with the characteristics of regulation and punishment."


Baily was never technically overturned. But the kinds of regulatory taxes at issue in Baily are standard practice today. You should know that huge portions of the tax code are written less for their revenue effect than for their behavioral effects. The Supreme Court cannot resurrect Baily without gutting the current tax code.
 
2011-03-01 09:38:42 PM  

captain_heroic44: But to be clear, I don't think DoJ should waltz into the courtroom with only a tax power argument. They need to (and will) argue any of several bases for ACA's constitutionality. Commerce Clause included.


That's what they're paid for.

The_Six_Fingered_Man: Furthermore, Congress decided to remove this penalty from the normal tax collection procedures. In fact, they originally called it an excise tax, then changed the wording in the reconciliation bill to a penalty. This shows that Congress knows how to write a tax, and in the beginning it did so, only to change it, likely for political reasons. Therefore, the penalty cannot stand on taxation power grounds.


If you make that the core of your argument, that deciding vote in favor of the bill will be Scalia. Just sayin' - your side of the debate wants to stay as far away from legislative intent as absolutely possible.
 
2011-03-01 09:40:36 PM  

captain_heroic44: The_Six_Fingered_Man: The example is no more crazy than the Supreme Court saying that the growing and consumption of plant grown entirely within one state significantly affects interstate commerce, even though that commerce is illegal in the eyes of the Federal government.

Just to be clear: you're saying that if Congress lifted the prohibition on the interstate movement of marijuana, that it could then permissibly ban the growing and consumption of marijuana at the state level?


Also: do you deny the existence of a black interstate market in marijuana? And do you agree that permitting the local production and consumption of marijuana makes it next to impossible to enforce a ban on the interstate movement of marijuana?
 
2011-03-01 09:41:46 PM  

Talondel: No. It's not. That's the only thing that all four of the federal judges that have ruled on this case agree on. The government's position that this can be defended under Art. 1 Sec. 8 Cls. 1 is currently 0 for 4 in the district courts. Even the two courts who upheld the mandates as constitutional did so under the Commerce power, after clearly stating that they were rejecting the government's position that this is a tax.


And you know what else? All it takes is five votes in favor of that argument to make all four of those judges completely wrong. They're also being very careful to follow stare decisis in this case, given its high profile, even when the guiding law is completely batshiat and irrelevant, such as Bailey.
 
2011-03-01 09:47:08 PM  

AnotherDisillusionedCollegeStudent: Talondel: No. It's not. That's the only thing that all four of the federal judges that have ruled on this case agree on. The government's position that this can be defended under Art. 1 Sec. 8 Cls. 1 is currently 0 for 4 in the district courts. Even the two courts who upheld the mandates as constitutional did so under the Commerce power, after clearly stating that they were rejecting the government's position that this is a tax.

And you know what else? All it takes is five votes in favor of that argument to make all four of those judges completely wrong. They're also being very careful to follow stare decisis in this case, given its high profile, even when the guiding law is completely batshiat and irrelevant, such as Bailey.


The Court might even finally overturn Bailey.
 
2011-03-01 09:51:36 PM  

kibitzer788: 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.


kibitzer788: 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.



They incentivize the purchase of clothes. They do not enforce it.
 
2011-03-01 09:56:09 PM  

AnotherDisillusionedCollegeStudent: And you know what else? All it takes is five votes in favor of that argument to make all four of those judges completely wrong. They're also being very careful to follow stare decisis in this case, given its high profile, even when the guiding law is completely batshiat and irrelevant, such as Bailey.


Yeah, all it takes is 5 Supreme Court justices willing to overturn decades of precedent to uphold it as a Tax when they could easily uphold it under the Commerce clause without overturning anything. Go listen to the first 4 minutes of oral argument from Chicago v. McDonald and tell me how likely you think it is for that to happen.
 
2011-03-01 09:58:01 PM  

Yeah_Right: The_Six_Fingered_Man: This law professor has obviously never heard of conscientious objection.

You can avoid the draft entirely by objecting.

Currently, the U.S. Selective Service System states, "Beliefs which qualify a registrant for conscientious objector status may be religious in nature, but don't have to be. Beliefs may be moral or ethical; however, a man's reasons for not wanting to participate in a war must not be based on politics, expediency, or self-interest. In general, the man's lifestyle prior to making his claim must reflect his current claims."

This law professor says that we regulate pacifism in order to have a draft. That's demonstrably wrong. Pacifism is a moral or ethical objection to military service. Ergo, no drafting of conscientious objectors.

I was going to say that very thing ... aren't there certain religious sects that are exempt from the draft, like the Quakers?


There are provisions of exclusion for the individual mandate also. What is your point?
 
2011-03-01 10:07:46 PM  
 
2011-03-01 10:14:24 PM  

Talondel: Yeah, all it takes is 5 Supreme Court justices willing to overturn decades of precedent to uphold it as a Tax when they could easily uphold it under the Commerce clause without overturning anything. Go listen to the first 4 minutes of oral argument from Chicago v. McDonald and tell me how likely you think it is for that to happen.


Like oral argument has anything to do with how the Court decides.

Also, you have noticed that this particular court has no problem with overturning decades-old precedent when they disagree with it, haven't you? Not only that, but that they have a fairly narrow reading of the Commerce Clause? Finally, that the taxation argument is the only one that would satisfy both the originalists and the more liberal justices?

A Commerce Clause argument also has the potential to open a huge can of worms, based on the particular wording of the decision - the constitutionality of the Social Security Act of 1965, which no one has ever directly challenged. The Justices are all too aware of this, and do not want to touch this question with a 40 foot pole.
 
2011-03-01 10:23:14 PM  
Jury duty and the draft?

Neither Jury Duty NOR the draft are constitutional and neither are used by the federal government except under guise of national emergency when the Constitution is partially suspended.

WHAT THE fark IS THE IDIOT SMOKING AND WHO THE fark LET HIM GET A DEGREE?

Both of these operate off the concept of a republic, a land in which each and every man is willing to take the responsibility of his nation upon himself.

You're allowed to kill people, did I mention that? Congress has been REPEATEDLY DENIED when they've tried to take that right away.

Jury Duty is respect for society, an opinion on the future of your local lawmaking, what you believe the laws mean and how they should be applied. It is not "did this farker kill that farker because he farked the farker's farker?"

You don't get jury trials for that. You get jury trials to see if the circumstances were to some extent legal. Its a reference and I can walk up to fifty farkers after leaving the farkers farking body and ask each one to tell the cops what they saw.

And not a god damned one of them has to, they cannot even be forced to tell the police anything. There's no law, state or federal or natural that requires they tell.

I cannot be forced to pay for something I do not receive.
I cannot be forced to pay for something I do not need.
I cannot be forced to pay for something I did not do.
THIS IS "LIBERTY" and BY GOD if I don't get it, there will be death!

If congress cannot tell me that I'll be housing soldiers in my living room, they cannot tell me I have to pay for my neighbor's tit job because she's unhappy and thinks her flappies are why her husband beats her.

In this example the answer is to kill the farking fark. Its cheaper, its right, its just and it defends the Republic.

They CAN, however, then make me cover her expenses if he was paying them...

The world isn't a clean safe wonderful unicorns-farking-in-the-park place. Its dog necrophilia dog and anybody who says otherwise is either metaphorically getting into position and fumbling their zipper or stupid.
 
2011-03-01 10:51:30 PM  

AnotherDisillusionedCollegeStudent: Like oral argument has anything to do with how the Court decides.


No, oral argument doesn't have anything to do with how they decide. But it can and does tell you what the Justices think about the importance of certain issues.

So, now go listen to the first four minutes like I asked, and then come back and tell me what the Court thinks about needlessly overturning precedent when there's a simpler way to reach the same conclusion. Here's the url:

http://www.oyez.org/cases/2000-2009/2009/2009_08_1521
 
2011-03-01 10:55:30 PM  
prjindigo Quote 2011-03-01 10:23:14 PM

img1.fark.net
 
2011-03-02 03:45:03 AM  

Talondel: So, now go listen to the first four minutes like I asked, and then come back and tell me what the Court thinks about needlessly overturning precedent when there's a simpler way to reach the same conclusion. Here's the url:


Get the fark over yourself.
 
2011-03-02 09:56:06 AM  

AnotherDisillusionedCollegeStudent: Get the fark over yourself.


i5.photobucket.com

i5.photobucket.com
 
2011-03-02 10:04:11 AM  
 
2011-03-02 10:05:20 AM  
that is,

i66.photobucket.com
 
2011-03-02 10:14:12 AM  
Naturally then, if the government can regulate inactivity like the legal age of consent, then the government has the right to legislate that everyone must perform in a donkey show. That's about how much sense this makes.
 
2011-03-02 11:33:20 AM  

BullBearMS: 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?


I did. You did. We all did.

We also buy items from Monsanto. And Koch Industries. And Lockheed Martin, Boeing, BAE, Merrimac, Aeroflex, ITT, Hewlett Packard, Xe, IBM, Ball, Accenture, General Dynamics...

We purchase items for OTHER COUNTRIES, too. We buy Israel and Egypt lots of fancy toys so they won't shoot at one another. We purchase food and clean water for the third world.

I'm not a huge fan of the mandate, but I'm hard pressed to see *any* relevance in anything you've ever said about it.
 
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