Chummer45: sprawl15: Chummer45: The reasoning is that by growing his own stuff to consume, the farmer is affecting grain prices on the greater interstate market.

Not really. It was about application of a general principle to cases where the justification for the principle would be excepted. The government generally regulated wheat to regulate the national price of wheat, so does that apply to people who don't intend to enter that market? To rule that it doesn't would undermine the force of that law; it would require significant oversight to determine if wheat sold came from farms that declared that they complied with the law or if it's greymarket wheat.

That's the court acknowledging that as a practical matter, a farmer eating his own stuff isn't likely to have any effect. But the basis for the ruling wasn't "aw shucks, enforcement will be a biatch." It's that the aggregate effect of that farmer's activities would potentially affect the market. So you're sort of right, but it has more to do with the fact that the farmer's activities in the aggregate would affect interstate commerce. You can't just uphold a regulation by saying "well, it's beyond congressional power, but hey, they can do it because something something rule of law."

But that's different from regulating health care under the affordable care act because................?

Actually, no economist would agree with that. Smeone who decides to grow their own food lowers overall demand for the food that is on the market. Maybe not much, but it still lowers it. Collectively, all such farmers probably have a measurable effect.

I will say that one person I'd hate to be is Kennedy. 4 moderate judges, 4 Republican anti-American neo-nazi child rapist-diddlers, and Kennedy. He gets to be the deciding vote between good and evil. He gets to be remembered in history as to whether the U.S. chooses society or its capitalist skullfarking masters. Between ACA and gay marriage, he will either be a hero or a traitor to the United States. Let's see what he chooses.

rolladuck: tortilla burger: There's really only 2 mutually exclusive views on HCR. You either believe that everybody is inherently part of the health care system or you don't.

False dichotomy is false.

That's not a false dichotomy, it encompasses all possibilities.

These are false dichotomies:

You either believe that everybody is inherently part of the health care system or you believe nobody is. (it doesn't account for the possibility that some, but not all, are)
You either believe that everybody is inherently part of the health care system or you believe only some are. (it doesn't account for the possibility that none are)

Plutonian Nyborg: Chummer45: sprawl15: Chummer45: The reasoning is that by growing his own stuff to consume, the farmer is affecting grain prices on the greater interstate market.

Not really. It was about application of a general principle to cases where the justification for the principle would be excepted. The government generally regulated wheat to regulate the national price of wheat, so does that apply to people who don't intend to enter that market? To rule that it doesn't would undermine the force of that law; it would require significant oversight to determine if wheat sold came from farms that declared that they complied with the law or if it's greymarket wheat.

That's the court acknowledging that as a practical matter, a farmer eating his own stuff isn't likely to have any effect. But the basis for the ruling wasn't "aw shucks, enforcement will be a biatch." It's that the aggregate effect of that farmer's activities would potentially affect the market. So you're sort of right, but it has more to do with the fact that the farmer's activities in the aggregate would affect interstate commerce. You can't just uphold a regulation by saying "well, it's beyond congressional power, but hey, they can do it because something something rule of law."

But that's different from regulating health care under the affordable care act because................?

Actually, no economist would agree with that. Smeone who decides to grow their own food lowers overall demand for the food that is on the market. Maybe not much, but it still lowers it. Collectively, all such farmers probably have a measurable effect.

Exactly - by removing yourself from the market, you're affecting demand. Health care is a double-whammy though, because even if you remove yourself from the market, you still - at some point in your life - are virtually guaranteed to be in the health care market. And gee, don't we have medicare, medicaid, and requirements that hospitals operate on accident victims regardless of whether they're insured? Seems to me like it's a market that the government already massively regulates and in which it is a huge participant. It's something the government has a massive interest in regulating for the public good.

Can we just stop pretending that the idea of an individual mandate is so repugnant to conservatives? Remember, they came up with the farking idea. But as soon as the black guy does it, suddenly it's not a "market based solution" -- it's now hitler's secret plot to start the final solution and haul your grandma to the death camps and a "trampling" of the constitution.

Payback's a biatch, libs.



/so suddenly criminalizing drugs is OK because all of the liberal justices are for it
//we told dumping all over the 9th & 10th amendments would come back to haunt you

Dr Dreidel: FlashHarry: but roberts may realize that his court is headed towards historical ignominy as one of the most partisan and openly political courts in history. he may buck his party and vote to uphold it.

He won't.

Winners write the history books, and Roberts, Romney, Bush, and Cheney, just like the Nixon and Reagan apologists before them, are spending their lives' work to ensure that they don't get the treatment they so richly deserve. To 'win' this fight, as it were.

Unless Roberts has the good fortune to be on a court that increasingly votes him in the minority (unlikely unless Obama wins re-election and Scalia, Thomas and Alito all die/retire in the first 2 years), the Roberts Court will continue to do what it do. Even if he finds himself losing 8-1 every time, I feel like Roberts would only moderate if he gets the clarity that Souter, Breyer, Rhenquist and Kennedy got in their later years.

Scalia, FWIW, seems to be getting more "conservative" (hewing ever closer to his made-up-from-whole-cloth "Originalist" stance) as time goes on.

They can only win for so long, the nations' progress towards reasonable and humane treatment of our citizens (to include universal health care, equal rights for gay people, and a litany more) is inexorable. They can slow it down a bit, and do their best by killing concepts like the public option, decrying civil unions as evil, and fighting to keep well qualified people out of jobs they've earned based on personal animosity, but when you stand in the way of the steamroller of history, it doesn't stop for you.

beta_plus: Payback's a biatch, libs.

[tucsongrowup.com image 600x403]

/so suddenly criminalizing drugs is OK because all of the liberal justices are for it
//we told dumping all over the 9th & 10th amendments would come back to haunt you

Really, you're ok with millions of citizens going without healthcare and dying because of a bad property rights decision and "payback is a biatch." At some point has partisan politics maybe gone a little too far when we're ok with millions of our own suffering needless and painful deaths because we ideologically disagree with them? How far off are we, when we're this ok with the suffering of our compatriots, from just causing it ourselves?

Serious Black: timswar: I am shocked, SHOCKED that Justice Scalia would completely change his interpretation of the law based on current political beliefs.

Shocked I tell you. Just shocked.

And since Thomas is just his ventriloquist dummy we can assume feels the same as Scalia.

To be fair, Thomas has consistently held pre-Wickard views of what the Commerce Clause authorizes; see his concurrences in US v. Lopez, US v. Morrison, and Gonzales v. Raich that all condemned current interpretation of the Commerce Clause.

This is what bugs me about the Thomas and Scalia meme- Thomas is a whole lot more extreme. He and Scalia nearly always vote together because they're both far to the right of the center of the court. Thomas and Scalia overlap because the law, and the cases they here, are to the left of both of them.

Now, if the center of the court was where Scalia was, you would see the differences a lot more plainly. If the court was freshly deciding Wickard, say, on a close vote, it's very possible Thomas and Scalia would fall on opposite sides of it, with Scalia for and Thomas against. But Thomas is just so far removed from the mainstream of constitutional law these days that he's just always on the far right with Scalia, even though he is, in reality, much further right than Scalia is. But as long as a majority requires a somewhat moderate vote, you just won't see them split.

I think Scalia said it best when asked about the difference: "I'm an originalist, but I'm not crazy".

sprawl15: Chummer45: The reasoning is that by growing his own stuff to consume, the farmer is affecting grain prices on the greater interstate market.

Not really. It was about application of a general principle to cases where the justification for the principle would be excepted. The government generally regulated wheat to regulate the national price of wheat, so does that apply to people who don't intend to enter that market? To rule that it doesn't would undermine the force of that law; it would require significant oversight to determine if wheat sold came from farms that declared that they complied with the law or if it's greymarket wheat.

Good point. Wickard v. Filburn basically asked the conditional question "If somebody is engaging in a commercial activity (namely growing wheat), can we command them to engage in a different but related commercial activity (namely selling wheat)?" In contrast, this case asks the universal question "Can we command somebody to engage in a commercial activity (namely buying health insurance)?" They are different questions, but I don't think the differences are all that important in this specific case.

Suppose we changed it to a conditional question "If somebody is engaging in a commercial activity (namely purchasing health care), can we command them to engage in a different but related commercial activity (namely purchasing health insurance)?" If that were the question we were faced with, I don't think anyone would argue that the precedent established by Wickard v. Filburn applies. The condition is thus important to make sure that the command applies to the relevant people rather than being overbroad. Well, what if the relevant condition we're using is already so broad that it encompasses virtually everyone? One of the amicus briefs filed on behalf of the government (and cited by Charles Fried in his unequivocal opinion that the mandate is constitutional) stated that 85% of Americans use health care in a one-year timeframe and 95% of Americans use health care in a five-year timeframe. Do we need a condition on that command in this case when the condition is already tautologically true?

Serious Black: sprawl15: Chummer45: The reasoning is that by growing his own stuff to consume, the farmer is affecting grain prices on the greater interstate market.

Not really. It was about application of a general principle to cases where the justification for the principle would be excepted. The government generally regulated wheat to regulate the national price of wheat, so does that apply to people who don't intend to enter that market? To rule that it doesn't would undermine the force of that law; it would require significant oversight to determine if wheat sold came from farms that declared that they complied with the law or if it's greymarket wheat.

Good point. Wickard v. Filburn basically asked the conditional question "If somebody is engaging in a commercial activity (namely growing wheat), can we command them to engage in a different but related commercial activity (namely selling wheat)?" In contrast, this case asks the universal question "Can we command somebody to engage in a commercial activity (namely buying health insurance)?" They are different questions, but I don't think the differences are all that important in this specific case.

Suppose we changed it to a conditional question "If somebody is engaging in a commercial activity (namely purchasing health care), can we command them to engage in a different but related commercial activity (namely purchasing health insurance)?" If that were the question we were faced with, I don't think anyone would argue that the precedent established by Wickard v. Filburn applies. The condition is thus important to make sure that the command applies to the relevant people rather than being overbroad. Well, what if the relevant condition we're using is already so broad that it encompasses virtually everyone? One of the amicus briefs filed on behalf of the government (and cited by Charles Fried in his unequivocal opinion that the mandate is constitutional) stated that 85% of Americans use health care in a one-year timeframe a ...

I wonder how many Americans would actually think they participate in the healthcare system... I'd wager that there are a bunch of insured people, people who go to the doctor, or poor people who go to subsidized clnics who don't think they are participating.

rolladuck: Chummer45:
How come? The basis for the Wickard ruling is that growing grain for personal consumption affects interstate commerce, because it increases that farmer's supply, he won't buy it on the market - and therefore, it has the potential to bring grain prices down on the interstate market. So, if the government requires a farmer to cultivate 40 acres of his property to increase supply and bring grain prices down, how is it any different? Both regulate interstate commerce for the same purpose.

[#include.slippery_slope] By the logic of the Wickard ruling, I engage in interstate, and even international commerce every time I have sex with my wife. When I have sex with my wife instead of hiring a prostitute, I source the services from within my home. Since I didn't hire a prostitute, or even an underage sex slave, I did not allow my demand for their services to be manifest on the global market, and my wife was participating in their industry by competing and offering her services at a much lower price. Therefore, the prices for their services was driven down, and the girls are subject to even more repugnant conditions, torture and humiliation by their pimps. Furthermore, since she will not have sex with most other men (I won't kid myself, there are some guys who, if they came to my place, she'd probably tell me to step out... I'd do the same to her in favor of more than a handful of women), she unfairly discriminates against a huge portion of her customer base, and is subject to racial, sexist, agist, and many other discrimination statutes.

I can get behind "interstate commerce" when I purchase meat, produce, power, water, and cheap Chinese crap. I can't get behind the logic that non-participation in a system "affects" the system and is therefore involvement.

I, for one, have abstained from selling my services as a hitman.

rolladuck: Chummer45:
How come? The basis for the Wickard ruling is that growing grain for personal consumption affects interstate commerce, because it increases that farmer's supply, he won't buy it on the market - and therefore, it has the potential to bring grain prices down on the interstate market. So, if the government requires a farmer to cultivate 40 acres of his property to increase supply and bring grain prices down, how is it any different? Both regulate interstate commerce for the same purpose.

[#include.slippery_slope] By the logic of the Wickard ruling, I engage in interstate, and even international commerce every time I have sex with my wife. When I have sex with my wife instead of hiring a prostitute, I source the services from within my home. Since I didn't hire a prostitute, or even an underage sex slave, I did not allow my demand for their services to be manifest on the global market, and my wife was participating in their industry by competing and offering her services at a much lower price. Therefore, the prices for their services was driven down, and the girls are subject to even more repugnant conditions, torture and humiliation by their pimps. Furthermore, since she will not have sex with most other men (I won't kid myself, there are some guys who, if they came to my place, she'd probably tell me to step out... I'd do the same to her in favor of more than a handful of women), she unfairly discriminates against a huge portion of her customer base, and is subject to racial, sexist, agist, and many other discrimination statutes.

I can get behind "interstate commerce" when I purchase meat, produce, power, water, and cheap Chinese crap. I can't get behind the logic that non-participation in a system "affects" the system and is therefore involvement.

That said, the numbers show that 85 percent of Americans do participate in a given one year period, and 95 percent participate in any given 5 year period... there are a whole lot of people who think like you, that being uninsured is somehow tantamount to not participating... you are participating, you're just counting on everyone else to pay for it when you declare bankruptcy due to medical bills (the number one cause of personal bankruptcies in the US)... so we have a whole bunch of uninsured people (many of whom would probably like to be insured), creating a huge drag on the economy as a whole, but your argument is that because they refuse to take one action, while they engage in a hundred others, that we should pretend that they aren't interacting at all with the larger system?

mrshowrules: NuttierThanEver: Grand_Moff_Joseph: Vodka Zombie: I'm pretty sure our Supreme Court has been bought.

It absolutely has. Clubs and outside groups throw all of the justices loads of dinner parties, speaking engagements, etc. None of that should be occuring at all, for any of them.

Frankly, I'd go a step further and say that the SCOTUS was flawed from day one due to allowing POTUS to nominate judges. OF COURSE they'd nominate judges that are friendly to their political tilt - it's what any politician would do. These judges, like most others, need to be elected by the people.

Could not disagree more, I think this would lead to even more politicization. If anything I think congress should get to nominate 10 people, the president gets 10 nominees and 10 more names get pulled from the ranks of all federal judges with excellent ratings from the American Bar. They get put in a tumbler and we draw a name at random.

Don't draw names have a Spelling Bee/elimination type quiz on American and Constitutional Law.

What if the judges vetting the answers to these questions are fundamentalist right wing "christians?"

beta_plus: Payback's a biatch, libs.

[tucsongrowup.com image 600x403]

/so suddenly criminalizing drugs is OK because all of the liberal justices are for it
//we told dumping all over the 9th & 10th amendments would come back to haunt you

You must be smoking something. Liberals are FAR more likely to support legalization than conservatives.

and yet he gets to keep his job, even when he says he's going to abuse his power...

Chummer45: But the basis for the ruling wasn't

Eh, I wasn't clear.

I meant to say that it's my opinion that necessary and proper was a much more solid justification than the commerce clause justification used by the courts. The decision that any action that action that could have an effect on interstate commerce falls under jurisdiction has a very strong implication that has never been really addressed: EVERY action can theoretically have an impact on interstate commerce, yet the commerce clause is obviously not intended to grant plenary police powers. If going to bed on time is beneficial to interstate commerce, why couldn't the government mandate it? (etc., etc)

What line is drawn has never really been clear, and a straightforward guidance as to what kinds of impact to interstate commerce allows one to fall under federal jurisdiction simply doesn't exist.

Serious Black: Wickard v. Filburn basically asked the conditional question "If somebody is engaging in a commercial activity (namely growing wheat), can we command them to engage in a different but related commercial activity (namely selling wheat)?

No, Wickard had nothing to do with commanding people to sell wheat. The guy wanted the wheat for himself (to feed his chickens, iirc). Though calling it a 'command' is a stretch, it would be closer to say that they 'commanded' him to buy on the market instead of growing his own (beyond the allowable amount).

Serious Black: Do we need a condition on that command in this case when the condition is already tautologically true?

I would much rather have had this whole debate simplified by not going with a mandate methodology and instead providing a universal service (via single payer/public option). The mandate is a tarpit that ties the answer to a lot of fundamental question marks of our federal system to a very noble cause.

Jesus Farking Christ: 4 moderate judges,

Ruth Bader Ginsburg openly stating to the media that she doesn't like the US constitution because it does not compel the government to take care of its citizens is hardly a "moderate" position. It is essentially the same premise as FDR's second bill or rights were he argued for nebulous things like "fair wages" which could never be quantified.

Aside from that, Can we just overturn Wickard FFS? The Articles of Confederation failed due to states engaging in tariff wars with each other. In order to regulate or "make regular" the commerce between the states, The founders empowered Congress is empowered to make laws.

Whereas "regulate" used to mean to facilitate, today it essentially means to control, dictate or shepherd.

The interpretation of Wickard would allow congress to bust up a Union strike because the lack of production would affect interstate commerce. In interpreting healthcare as interstate commerce, it could force a doctor into work. When we welcome the oversteps with which we agree, we are inevitably forced to deal with the oversteps with which we disagree.

Serious Black: One of the amicus briefs filed on behalf of the government (and cited by Charles Fried in his unequivocal opinion that the mandate is constitutional) stated that 85% of Americans use health care in a one-year timeframe and 95% of Americans use health care in a five-year timeframe.

so we should punish the 5-15% who don't use health care? that makes no sense.

besides, what does "using health care" even mean and why is it relevant? if I go to a doctor for a check up and pay out of my own pocket, why should that subject other people to buying insurance that they don't want to buy?

o5iiawah: The interpretation of Wickard would allow congress to bust up a Union strike because the lack of production would affect interstate commerce.

Brilliant.
Congress should be proactive and state that any strike or union action that would impact commerce is illegal.
Commerce Clause FTW!!

beta_plus
Payback's a biatch, libs.

Your mental deficiencies are without end.

tenpoundsofcheese
so we should punish the 5-15% who don't use health care? that makes no sense.

15% don't use it in a 1 year period. Around 5% in a five year period... how many do you suppose never get around to using much health care at all? Hint: that's going to be significantly less than 5% and there's obviously no way to know who will need it and who won't.

Never mind. I'm sure your response will be either delusional and/or utterly devoid of anything resembling compassion for those who cannot get adequate health care. Fark 'em, amiright?

To those of you who think that Presidential elections don't matter, consider this: Scalia was appointed by Ronald Reagan, and shows how Ronnie's Curse on America still blights this nation to this very day.

sprawl15: tortilla burger: There's really only 2 mutually exclusive views on HCR.

Only if you're a partisan hack.Or a Sith (ftfy)


Only Sith Lords deal in absolutes...

o5iiawah: Whereas "regulate" used to mean to facilitate, today it essentially means to control, dictate or shepherd.

Actually, according to Judge Laurence Silberman, "to regulate" included in part of its definition "to command" back in the 1780's.

tenpoundsofcheese: Serious Black: One of the amicus briefs filed on behalf of the government (and cited by Charles Fried in his unequivocal opinion that the mandate is constitutional) stated that 85% of Americans use health care in a one-year timeframe and 95% of Americans use health care in a five-year timeframe.

so we should punish the 5-15% who don't use health care? that makes no sense.

besides, what does "using health care" even mean and why is it relevant? if I go to a doctor for a check up and pay out of my own pocket, why should that subject other people to buying insurance that they don't want to buy?

I was a little bit off on the exact numbers. The report cited in Charles Fried's amicus brief came from the CDC in 2010, and they defined using health care as seeing a health care professional like a doctor, a nurse, a PA, etc. (I'll put them all under the heading of doctor for brevity). The exact numbers were 82.5% had seen a doctor in the previous year, 95.9% had seen a doctor in the previous five years, and just under 1% had never seen a doctor in their entire life. If that doesn't qualify as a large enough proportion to regulate or a distinct enough entry point into a market to regulate, then the Commerce Clause is meaningless.

Beyond that, the law wouldn't prevent you from purchasing a catastrophic health insurance policy with a high deductible that requires you to pay out-of-pocket for most checkups with a doctor; bronze plans (with a 60% actuarial value) would top out with a deductible/out-of-pocket maximum at $6,000, an amount that almost everyone I know would agree qualifies as catastrophic given their financial situation.

"Justice Scalia does believe in stare decisis."

[citation needed]

Dusk-You-n-Me: It would mean that the Supreme Court had officially entered an era where they were frankly willing to overturn liberal legislation just because they don't like it.

I think it would be good to have the ACA overturned and I'm very liberal on health care. At the same time we need *some* limit to the commerce clause as in its current form it's kind of run amuck.

that bosnian sniper: DjangoStonereaver: This court, though, has to be the most politicized court since at least before the Civil War, and the conservative water carriers aren't anywhere near done with their damage.

Two words for you: Lochner era.

EVERYONE detested that speaking, floating, glowing green ball!!!

the_geek: Dusk-You-n-Me: It would mean that the Supreme Court had officially entered an era where they were frankly willing to overturn liberal legislation just because they don't like it.

I think it would be good to have the ACA overturned and I'm very liberal on health care. At the same time we need *some* limit to the commerce clause as in its current form it's kind of run amuck.

It's almost like a set of guidelines written in the past designed to conform to the standards of the past are not readily applicable to present day.

/not talking about the bible this time

the_geek: Dusk-You-n-Me: It would mean that the Supreme Court had officially entered an era where they were frankly willing to overturn liberal legislation just because they don't like it.

I think it would be good to have the ACA overturned and I'm very liberal on health care. At the same time we need *some* limit to the commerce clause as in its current form it's kind of run amuck amok.

Sorry, pet peave.

that bosnian sniper: DjangoStonereaver: This court, though, has to be the most politicized court since at least before the Civil War, and the conservative water carriers aren't anywhere near done with their damage.

Two words for you: Lochner era.

I just looked up that decision, btw. What an incredibly warped and intellectually dishonest line of reasoning to be seen!!

The thing I don't get about Scalia is why more people (Conservatives primarily) don't see through his sham-show.

He presents himself as a Conservative "strict constructionist" who believes in limited court powers, and keeping the court out of policy-making. But in many of his opinions (especially the important ones) it's blatantly obvious that he goes in with the outcome in mind, cherry-picks some case-law, cheerfully dismisses the reams of prior jurisprudence that disagrees with him, and then acts as if his conclusion is the only one that can be made.

He's a political hack who refuses to admit to himself that he bases his decisions on his own political views, not the law.

I've known many people who have conceded that, sure, politics is a mess, both parties are bad (so vote Republican), and the judiciary is a snakepit, activist judges on both sides (but especially libby lib--vote Republican), and federal bureaucracy is a jungle, etc. etc. etc....

"...but you have to admit, I mean, *anybody* can see, that Antonin Scalia...now *there* is a man of principle, there is a man of dignity...deeply intelligent, thoughtful, rational, knowledgeable, wise, humble, virtuous, godly, dignified" and so on until I finally vomit.

But most important of all, he's a strict constructionist who merely lets the will of the Founding Fathers flow forth but never, in any way, ever, takes part in something so disgustingly sordid as partisan politics, and if you think that he does, it just goes to show how far this country has fallen, that anyone can fail to recognize that Antonin Scalia singlehandedly keeps our Noble Republic aloft on his broad, broad shoulders with his honest, broad-minded, even-handed, totally strict constructionist review of the cases before the Supreme Court.

He never changes his mind on anything, because...how can you? When you're merely strictly constructing the divine will of the divine Founding Fathers.

/vote Republican

cefm: The thing I don't get about Scalia is why more people (Conservatives primarily) don't see through his sham-show.

He presents himself as a Conservative "strict constructionist" who believes in limited court powers, and keeping the court out of policy-making. But in many of his opinions (especially the important ones) it's blatantly obvious that he goes in with the outcome in mind, cherry-picks some case-law, cheerfully dismisses the reams of prior jurisprudence that disagrees with him, and then acts as if his conclusion is the only one that can be made.

He's a political hack who refuses to admit to himself that he bases his decisions on his own political views, not the law.

And he enjoys rubbing our collective noses in it.

ComicBookGuy: cefm: The thing I don't get about Scalia is why more people (Conservatives primarily) don't see through his sham-show.

He presents himself as a Conservative "strict constructionist" who believes in limited court powers, and keeping the court out of policy-making. But in many of his opinions (especially the important ones) it's blatantly obvious that he goes in with the outcome in mind, cherry-picks some case-law, cheerfully dismisses the reams of prior jurisprudence that disagrees with him, and then acts as if his conclusion is the only one that can be made.

He's a political hack who refuses to admit to himself that he bases his decisions on his own political views, not the law.

And he enjoys rubbing our collective noses in it.

The maturity level you'd expect from a conservative brat.