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(Talking Points Memo)   In a sign of what's to come, Justice Scalia suddenly decides he doesn't like the legal precedent that makes Obamacare constitutional   (tpmdc.talkingpointsmemo.com) divider line 198
    More: Obvious, Scalia, obamacare, constitutionality, UCLA School of Law, Commerce Clause, healthcare reform, federalisms, Supreme Court decisions  
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5417 clicks; posted to Politics » on 18 Jun 2012 at 12:53 PM (2 years ago)   |  Favorite    |   share:  Share on Twitter share via Email Share on Facebook   more»



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2012-06-18 05:47:52 PM  

Dr. Mojo PhD: chuggernaught: John Lee Johnson · Subscribe · Currently waiting for assignment at WSI

YOU DemocRATS are the real criminals, can't wait until next year when President Romney will round most of you up and throw you in the camps for destroying our country. I'll be RIGHT there throwing the Cyklon-B into your showers, you GODLESS SOCIALIST BABYKILLING SCUM
Reply · Like · 8 minutes ago

Let the hate flow through you.jpeg

Uh wow. I don't know what's worse, his obsessive use of Holocaust imagery like it's nothing, or his obsessive use of Holocaust imagery like it's a good thing.



NO HATE LIKE LIBERAL HATE
 
2012-06-18 05:49:25 PM  

tenpoundsofcheese: 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?


Because no one actually pays for it out of their own pocket? Its an easy answer to a stupid question, and you know it.
 
2012-06-18 05:51:11 PM  

Serious Black: 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.


yeah, I agree. It makes the Commerce Clause meaningless.

As bad as these numbers are, the lack of context is even worse. If a person goes to the doctor one time in 5 years for a 15 minute check up and pay for it themselves, who cares? Why does that necessitate forcing others to buy health insurance?
 
2012-06-18 05:53:05 PM  

Madbassist1: tenpoundsofcheese: 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?

Because no one actually pays for it out of their own pocket? Its an easy answer to a stupid question, and you know it.


Really? But I thought there were so many uninsured people. Aren't they paying for a simple doctor visit?
 
2012-06-18 05:53:34 PM  
The Conservative push to re-write history continues.

The Roosevelts are now bad presidents, Kennedy sucked, Reagan was the best of the 20th century, Lincoln is the best ever, etc etc.

I'm still surprised Eisenhower hasn't been dragged through the mud yet, since he taxed the shiat out of the rich.
 
2012-06-18 05:55:16 PM  

Tigger: You can't 'not participate in healthcare' any more than not participate in the water or air system


So should the government be able to mandate how much water you buy every year?
 
2012-06-18 05:56:49 PM  

tenpoundsofcheese: Serious Black: 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.

yeah, I agree. It makes the Commerce Clause meaningless.

As bad as these numbers are, the lack of context is even worse. If a person goes to the doctor one time in 5 years for a 15 minute check up and pay for it themselves, who cares? Why does that necessitate forcing others to buy health insurance?


Because that doesn't happen so much as people going to the emergency room for checkups and not paying for it.
 
2012-06-18 06:00:10 PM  

cptjeff: tenpoundsofcheese: Serious Black: 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.

yeah, I agree. It makes the Commerce Clause meaningless.

As bad as these numbers are, the lack of context is even worse. If a person goes to the doctor one time in 5 years for a 15 minute check up and pay for it themselves, who cares? Why does that necessitate forcing others to buy health insurance?

Because that doesn't happen so much as people going to the emergency room for checkups and not paying for it.


Please provide a citation. I am 100% positive that the vast majority of ER/Doctor visits are paid for.
 
2012-06-18 06:00:22 PM  

Zumaki: The Conservative push to re-write history continues.

The Roosevelts are now bad presidents, Kennedy sucked, Reagan was the best of the 20th century, Lincoln is the best ever, etc etc.

I'm still surprised Eisenhower hasn't been dragged through the mud yet, since he taxed the shiat out of the rich.


Don't get me started.
 
2012-06-18 06:03:40 PM  

Zumaki: The Conservative push to re-write history continues.

The Roosevelts are now bad presidents,


because FDR's New Deal did nothing for unemployment, he detained citizens without trial and threatened the supreme court if they didn't advance his agenda?

Kennedy sucked,

Kennedy fortuitously announced that the key to reviving a stuck economy would be to cut taxes and return more money to the individual, allowing him to spend it in his community which would create jobs. If he wrote an editorial and it was posted on fark, it would be lambasted as some sort of right-wing, tea party racist, von-mises twaddle that would result in millions dying in the streets where the rest of us would have to flock to places like Ethiopia and Somalia for a shot at a stable government.

Reagan was the best of the 20th century, Lincoln is the best ever, etc etc.

Reagan's major flaw was the deficit, which he acknowledged in his memoirs. The job growth record of the 80s and the election of 84' pretty much shows you that it is only people under 30 who read way too much Slate that think Reagan was a lousy president.

I'm still surprised Eisenhower hasn't been dragged through the mud yet, since he taxed the shiat out of the rich.

In order to pay for a war, confiscatory tax policies are necessary. For me, neocon war hawks can die a slow death. ike was right. Every bomb you build to destroy a neighborhood somewhere else is a neighborhood that could be rebuilt at home. The GOP over the last 30 years does not get a pass on this, though neither do the democrats, to be fair.
 
2012-06-18 06:09:33 PM  

Zumaki: Lincoln is the best ever, etc etc.



The biggest rewrite is that Lincoln was a Republican in the modern sense, and not only that, but a conservative!
 
2012-06-18 06:11:36 PM  

tenpoundsofcheese: Serious Black: 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.

yeah, I agree. It makes the Commerce Clause meaningless.

As bad as these numbers are, the lack of context is even worse. If a person goes to the doctor one time in 5 years for a 15 minute check up and pay for it themselves, who cares? Why does that necessitate forcing others to buy health insurance?


Quite simply, there is no way to make sure that sick people can get the health care they need without getting everybody into the risk pool. Most private insurers simply refuse to offer coverage to people with pre-existing conditions because there is no way for them to make such coverage actuarially sound. Given that these people are the most likely to have extremely high annual costs (think six digits or higher), it seems pretty cruel to force them to beg for change at the local Dairy Queen to stop themselves from going into bankruptcy or, worse, denying them the care they need to survive.
 
2012-06-18 06:23:02 PM  

cptjeff: tenpoundsofcheese: Serious Black: 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.

yeah, I agree. It makes the Commerce Clause meaningless.

As bad as these numbers are, the lack of context is even worse. If a person goes to the doctor one time in 5 years for a 15 minute check up and pay for it themselves, who cares? Why does that necessitate forcing others to buy health insurance?

Because that doesn't happen so much as people going to the emergency room for checkups and not paying for it.


Citation? Or are you guessing?
 
2012-06-18 07:38:06 PM  

sprawl15: 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.



I agree. And this is why conservatives are massive trolls. These events unfolded as follows.

1. conservatives don't like "government run" health care, so they come up with the "market based" solution based on an individual mandate.
2. Obama comes to office promising to work on a bipartisan basis.
3. It's apparent that there is sufficient conservative opposition that public option won't get passed.
4. the only viable alternative is to go with the "individual mandate" (an idea invented by conservative think tanks).
5. the affordable care act is passed
6. Conservatives file tons of lawsuits, claiming that fartbongo is teh kenyan usurper trampling what they imagine the constitution to be.
7. SCOTUS finds it unconstitutional?
8. Conservatives say "ha ha ha ha ha, fartbongo sucks"
9. People with preexisting conditions continue to die. conservatives have no ideas of their own.
10......???
11. Profit?
 
2012-06-18 07:45:21 PM  

Chummer45: 1. conservatives don't like "government run" health care, so they come up with the "market based" solution based on an individual mandate.
2. Obama comes to office promising to work on a bipartisan basis.


stopped reading right there.
when someone comes into office and declares "I won" in response to the republican plan to lower the lower class and middle class tax rates, I don't know why people keep thinking he is bipartisan.
 
2012-06-18 08:04:53 PM  

tenpoundsofcheese: the republican plan to lower the lower class and middle class tax rates, I don't know why people keep thinking he is bipartisan.



What plan? The Republican plan is to raise taxes on the lower and middle class so the rich and corporations can have lower rates. You're full of shiat as usual.
 
2012-06-18 08:31:04 PM  

intelligent comment below:

>quotes prominent troll

/lol

Chummer45: I agree. And this is why conservatives are massive trolls.


The Republicans are assuming people are selfish assholes. The Democrats are not. Lucky for the GOP, people, by and large, are selfish assholes. People don't want to hear complicated answers, they want a sound bite to vomit into conversations later.
 
2012-06-18 08:35:27 PM  

intelligent comment below: tenpoundsofcheese: the republican plan to lower the lower class and middle class tax rates, I don't know why people keep thinking he is bipartisan.


What plan? The Republican plan is to raise taxes on the lower and middle class so the rich and corporations can have lower rates. You're full of shiat as usual.


I am not going to take this off topic, so google it and I'll discuss in another thread about taxes. but since you attacked, I decided to reply.

look at the plan proposed in January 2009. You are wrong.
 
2012-06-18 08:44:59 PM  

sprawl15: >quotes prominent troll

/lol



Projecting once again?
 
2012-06-18 08:46:17 PM  

tenpoundsofcheese: I am not going to take this off topic, so google it and I'll discuss in another thread about taxes. but since you attacked, I decided to reply.

look at the plan proposed in January 2009. You are wrong.



http://www.theblaze.com/stories/ap-gop-may-allow-tax-increase-that-ob a ma-seeks-to-block/
 
2012-06-18 08:46:58 PM  
Another

http://www.washingtonpost.com/opinions/the-gop-will-raise-taxes--on-t h e-middle-class-and-working-poor/2011/08/23/gIQAEDJuZJ_story.html
 
2012-06-18 08:49:46 PM  

rolladuck: 3) Declaring something to be good for society does not make it legal to remove people's rights to take no action regarding it. This rule MUST be the same whether you like the particular context of the law or not. Otherwise, when an opposing ideology is in power, they may decide that it is good for society that every person pray before their meal, or everyone carry a concealed weapon in public, or any number of other things that you find undesirable. Armed with some feel-good quotes from email forwards, dubious scientific research and drones from every state that voted for Bush twice, they will throw your previous argument that "it's good for society so it's perfectly legal to do this" right back into your face while pulling the lever in favor of removing your right to not carry a firearm or pray before your meals.


Most of your post is bullsh*t, but these issues warranted special attention:

Declaring something to be good for society does not make it legal to remove people's rights to take no action regarding it.


There is no "right," Constitutional or otherwise, to refrain from participation in any market.

they may decide that it is good for society that every person pray before their meal,

Prior to the 14th Amendment, the power to compel every person to pray before their meal resided within the scope of state police power. However, the 14th Amendment incorporated the 1st Amendment against the states, taking the power to compel prayer outside the scope of their police power. To my knowledge, no federal law has ever attempted to compel prayer. Even in the unlikely event such an act were held to be within the scope of an enumerated power, the 1st Amendment would still bar its enforcement.

everyone carry a concealed weapon in public,

States may permissibly require people to carry weapons pursuant to their police powers. The power to compel people to carry weapons may be within the scope of some federal enumerated power, but I wouldn't know which one. Just as there is no Constitutional right against participation in any market, there is no Constitutional right not to carry a weapon.

they will throw your previous argument that "it's good for society so it's perfectly legal to do this" right back into your face while pulling the lever in favor of removing your right to not carry a firearm or pray before your meals.


The quote you posted did not refer to the "good of society." Rather, it referred to the concept of "inevitable participation" in the health care market. Even if we magic into existence some right against market participation, the fact is that everyone will inevitably participate in the health care market. Thus, the Commerce Clause permits regulation of the point of sale of that participation, or so the argument goes.
 
2012-06-18 09:27:43 PM  

intelligent comment below: http://www.washingtonpost.com/opinions/the-gop-will-raise-taxes--on-t h e-middle-class-and-working-poor/2011/08/23/gIQAEDJuZJ_story.html


Do you not know what I meant when I said JANUARY 2009 ???

(hint: that is a date)
 
2012-06-18 09:57:16 PM  

tenpoundsofcheese: Do you not know what I meant when I said JANUARY 2009 ???

(hint: that is a date)



You mean their powerless BS pandering to win votes in the 10 election? Exactly. When they finally had the power in Congress I posted what they tried to do, raise taxes on the low and middle class.

Conservative tool.
 
2012-06-18 10:01:53 PM  
What happens with the past rulings that used the old commerce clause definition? Scalia used it to overturn California's voter approved medical marijuana law, and there wasn't much else besides that commerce clause excuse in the ruling. The sclibs pretty much just signed onto Scalia's opinion without adding anything.

This should mean the Cal pot decision is not valid and med marijuana is legal in California and can't be regulated by the feds. More precisely, anyone busted should easily have their case dismissed on that basis.

Correct if I'm wrong on that.
 
2012-06-18 10:09:48 PM  

Sliding Carp: The people you describe would STILL blame Obama for everything that happens to them.

Romney could pull a random redneck out of the audience and go full Kali-Ma on him and take a bite out of the still-beating heart, then hand around the RNC to smear the blood all over themselves, and the victim's fishing buddies would blame Obama for it.


Yes but that's not what I'm getting at. I get all schadenfreudey knowing that that person won't have health care.
 
2012-06-18 10:48:46 PM  

rolladuck: E.g., I should be able to be a participant in emergency treatment, but if I choose, not preventative services. Just as I can choose to not have an alarm system in my home, yet expect police response if I call 9-1-1 when a burglar strikes.


So since emergency rooms are required to stabilize patients, like police officers are required to protect citizens against criminals, should taxes be raised to provide single-payer emergency services or should all citizens be required to obtain medical insurance with minimum coverage for emergency services?

Or, since going to an emergency room is pretty much the most expensive way to treat people, should we come up with some system to allow them to seek more appropriate care, like say require insurance to allow them to go to outpatient facilities and save the emergency rooms for, say, emergencies?

Any way we as a country do this, it's going to cost money. Why conservatives want the most expensive and least pragmatic solution possible makes me doubt their claim of being more financially sound.
 
2012-06-18 10:51:36 PM  
 
2012-06-18 11:07:39 PM  
Scalia should be removed and replaced. It's obvious he doesn't care about the country or its people, and is only in it for personal gain and politics. Replace him with a conservative if you like, I don't care. Just put someone in there that isn't that scumbag.
 
2012-06-18 11:09:12 PM  

intelligent comment below: tenpoundsofcheese: Do you not know what I meant when I said JANUARY 2009 ???

(hint: that is a date)


You mean their powerless BS pandering to win votes in the 10 election?



2009 != 2010
you don't seem to understand dates do you?
 
2012-06-18 11:22:23 PM  

Guidette Frankentits: Sliding Carp: The people you describe would STILL blame Obama for everything that happens to them.

Romney could pull a random redneck out of the audience and go full Kali-Ma on him and take a bite out of the still-beating heart, then hand around the RNC to smear the blood all over themselves, and the victim's fishing buddies would blame Obama for it.

Yes but that's not what I'm getting at. I get all schadenfreudey knowing that that person won't have health care.


Ah, got it now. I love you.
 
2012-06-18 11:31:52 PM  

rolladuck: firefly212: 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?

I have several angles for thought that do not quite live up to your assessment of my argument.

1) It should be possible to participate in one part of an industry without being considered participating in the entire industry. E.g., I should be able to be a participant in emergency treatment, but if I choose, not preventative services. Just as I can choose to not have an alarm system in my home, yet expect police response if I call 9-1-1 when a burglar strikes.

2) Choosing to not participate in an economy that you have little to no risk of requiring does not influence that economy. If someone's projections or economic forecast for the economy requires my participation, they are doing it wrong. I should not be held accountable for someone else's bad math.

3) Declaring something to be good for society does not make it legal to remove people's rights to take no action regarding it. This rule MUST be the same whether you like the particular context of the law or not. Otherwise, when an opposing ideology is in power, they may decide that it is good for society that every person pray before their meal, or everyone carry a concealed weapon in public, or any number of other th ...


With respect to your first point... maybe it should be, but it isn't... the reality is that the 911 call you make is paid for by taxes, police and fire departments collect a portion of the taxes you pay regardless of whether or not you use them... it's a form of insurance for those emergencies. You pay no such taxes for medical insurance for yourself at this time (oddly enough we all pay insurance bills for the poor, the young, and the old by way of taxes, but none for ourselves). The reality is also that the failure to take care of things proactively leads to needless costs in the ER... I can't even count the number of easily prevented illnesses I saw go through when I worked for a hospital consultant.... pneumonia that could have been treated for less than 50 bucks people would let go until it was an ER-worthy condition that ended up costing thousands... their non-participation in preventative care, whether they liked it or not, was directly related to their cost-inducting with respect to ER costs.

With respect to the second point, the assumption is that you have little to no risk of participating... statistically fewer than 1.5 percent of people will not participate over the course of their lifetime, and fewer than 5% will not participate over a given 5 year period. From a mathematical perspective, the only bad math in the logic isn't someone else's.

With respect to the third point... I agree wholeheartedly... if they overturn Wickard, we're going to need some clear guidance on what exactly the power of congress to regulate matters of interstate commerce actually is, where does it begin, where does it end, how do we re-define the Wickard standard of anything even tangentially related to interstate commerce (it was the Wickard case that originally ruled that his non-participation in the wheat market at large reasonably affected said market and subsequently was able to be regulated by congress, so this isn't a particularly new argument). It needs to be consistent, to be sure... we can't argue that the government has a place in my doctors office in something as personal regulating what he can or can't prescribe under the ospices of interstate commerce, but then argue that once I get to the front desk of the doctor's office, all of a sudden there's some magical wall of privacy that would keep the government out... there also needs to be consistency with regard to medicaid/medicare/ssd taxation... if you can't mandate that I pay for my own health insurance, can you force me to pay for other people's? There's a whole lot to this decision, and I hope that (whichever way it goes) the justices writing the opinion understand the vast array of potential consequences... they failed to do that with Citizen's United and Griswald, and I'm hoping they don't continue the pattern.
 
2012-06-18 11:47:21 PM  

Prank Call of Cthulhu: In Scalia's new book, a 500-page disquisition on statutory construction being published this week,

I do not recommend buying this book. Mrs. PCoC decided she wanted some statutory for our garden, you know, like a statue of George Washington and maybe some Greeks and shiat like that. Class the place up. I bought this book 'cause I thought I could save a few bucks by making my own out of concrete or something instead of buying that expensive marble shiat from one of those lawn statutory stores. Anyway, I'm like 300 pages in and this doofus is still talking about court cases and I still haven't learned shiat about constructing statutory.


We need internet oscars or some sh*t. That was just beautiful, man.
 
2012-06-19 12:02:44 AM  

tenpoundsofcheese: 2009 != 2010
you don't seem to understand dates do you?



Are you clueless or dumb or both?

I said their 09 stance was to win votes in the 10 election.

Is this a really tough concept to grasp?
 
2012-06-19 08:40:26 AM  

Wangiss: You have a right to anything the governments in which you reside have no power to enforce. Article X, you totalitarian asshole.


You must mean "Amendment 10," because there are only 7 articles in the United States Constitution. The 10th Amendment protects states rights. The "or to the people" clause of that amendment has, to my knowledge, ever been held to protect an independent individual right. Either way, your "argument," if you can call it that, contains two fatal flaws:

1) Contrary to widely and passionately held belief on the right, the 10th Amendment does not textually create any independent limit to the enumerated powers. Rather, it states that what isn't enumerated is left to the states, or to the people. Thus, properly speaking, the first question in any Constitutional analysis involving federal statute is always "does this lie within the scope of an enumerated power?" You can resolve this question wholly without reference to the 10th Amendment. If, and only if, you find that a federal action does not fall within the scope of an enumerated power, do you refer to the 10th Amendment. And then all it tells us is that that power falls to the states, or to the people, respectively.

2) Which leads to the second fatal flaw in your argument: the 10th Amendment empowers states, it doesn't limit them. Even if there is no federal power to compel people to carry weapons, for example, the 10th Amendment explicitly says such a power DOES belong to the states!
 
2012-06-19 09:24:40 AM  

tenpoundsofcheese: apoptotic: Can someone explain to me how a sitting Supreme Court justice selling a book in which he lays out his opinion of laws that will impact his decision in a current case wouldn't be a conflict of interest?

wut? where is the conflict? Are you saying that he would only rule in a particular way in order to sell more books?

Justices have made their views known via scholarly work and other rulings.


I'm not sure if you were one of them, but remember the Sotomayor "conflict-of-interest" nonsense vis-a-vis the Ricci case? Cause I do. In which Sotomayor making a verbal statement at a seminar was considered adequate cause for recusal by pretty much every conservative on these boards who felt compelled to comment on it.

/Thomas' conflict is more palpable than any of the others.
//I for one, think that we will never see a SC Justice recuse themselves. Unless, maybe they are actually involved directly in the case material.
///And even then...
 
2012-06-19 10:17:06 AM  

bugontherug: Wangiss: You have a right to anything the governments in which you reside have no power to enforce. Article X, you totalitarian asshole.

You must mean "Amendment 10," because there are only 7 articles in the United States Constitution. The 10th Amendment protects states rights. The "or to the people" clause of that amendment has, to my knowledge, ever been held to protect an independent individual right. Either way, your "argument," if you can call it that, contains two fatal flaws:

1) Contrary to widely and passionately held belief on the right, the 10th Amendment does not textually create any independent limit to the enumerated powers. Rather, it states that what isn't enumerated is left to the states, or to the people. Thus, properly speaking, the first question in any Constitutional analysis involving federal statute is always "does this lie within the scope of an enumerated power?" You can resolve this question wholly without reference to the 10th Amendment. If, and only if, you find that a federal action does not fall within the scope of an enumerated power, do you refer to the 10th Amendment. And then all it tells us is that that power falls to the states, or to the people, respectively.

2) Which leads to the second fatal flaw in your argument: the 10th Amendment empowers states, it doesn't limit them. Even if there is no federal power to compel people to carry weapons, for example, the 10th Amendment explicitly says such a power DOES belong to the states!


You are so very right. States have the power to enact sweeping health care legislation, whereas the federal government does not. Perhaps we should enumerate such a power. Until we do, it's left to the states.

/I sincerely thank you for reading through my broken-phone ultraderp instead of insulting me for my faux pas. I tried to correct that post so very many times to no avail.
 
2012-06-19 01:12:09 PM  

kronicfeld: Scalia has been critical of Wickard v. Filburn since long before "Obamacare" was a sparkle in Obama's eye.


But he has upheld it whenever the law being challenged in his court is a law that he supports. See Gonzales v. Raich (upholding federal marijuana laws under the Commerce Power).
 
2012-06-19 01:16:32 PM  

tenpoundsofcheese: Madbassist1: tenpoundsofcheese: 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?

Because no one actually pays for it out of their own pocket? Its an easy answer to a stupid question, and you know it.

Really? But I thought there were so many uninsured people. Aren't they paying for a simple doctor visit?


I paid for a doctor visit out of my own pocket. Consisted of a consultation, blood draw and lab work. Came to about $680 give or take. Thats why people go to the ER.
 
2012-06-19 02:04:04 PM  

Wangiss: You are so very right. States have the power to enact sweeping health care legislation, whereas the federal government does not. Perhaps we should enumerate such a power. Until we do, it's left to the states.

/I sincerely thank you for reading through my broken-phone ultraderp instead of insulting me for my faux pas. I tried to correct that post so very many times to no avail.



Except never stated that the federal government has no power to enact sweeping health care legislation. To the extent that health care affects interstate commerce, sweeping health care legislation DOES fall within the scope of an enumerated power.
 
2012-06-19 02:50:02 PM  

bugontherug: Wangiss: You are so very right. States have the power to enact sweeping health care legislation, whereas the federal government does not. Perhaps we should enumerate such a power. Until we do, it's left to the states.

/I sincerely thank you for reading through my broken-phone ultraderp instead of insulting me for my faux pas. I tried to correct that post so very many times to no avail.


Except never stated that the federal government has no power to enact sweeping health care legislation. To the extent that health care affects interstate commerce, sweeping health care legislation DOES fall within the scope of an enumerated power.


To the extent

To the extent

To the extent

To the extent
 
2012-06-19 03:37:20 PM  

Wangiss: bugontherug: Wangiss: You have a right to anything the governments in which you reside have no power to enforce. Article X, you totalitarian asshole.

You must mean "Amendment 10," because there are only 7 articles in the United States Constitution. The 10th Amendment protects states rights. The "or to the people" clause of that amendment has, to my knowledge, ever been held to protect an independent individual right. Either way, your "argument," if you can call it that, contains two fatal flaws:

1) Contrary to widely and passionately held belief on the right, the 10th Amendment does not textually create any independent limit to the enumerated powers. Rather, it states that what isn't enumerated is left to the states, or to the people. Thus, properly speaking, the first question in any Constitutional analysis involving federal statute is always "does this lie within the scope of an enumerated power?" You can resolve this question wholly without reference to the 10th Amendment. If, and only if, you find that a federal action does not fall within the scope of an enumerated power, do you refer to the 10th Amendment. And then all it tells us is that that power falls to the states, or to the people, respectively.

2) Which leads to the second fatal flaw in your argument: the 10th Amendment empowers states, it doesn't limit them. Even if there is no federal power to compel people to carry weapons, for example, the 10th Amendment explicitly says such a power DOES belong to the states!

You are so very right. States have the power to enact sweeping health care legislation, whereas the federal government does not. Perhaps we should enumerate such a power. Until we do, it's left to the states.

/I sincerely thank you for reading through my broken-phone ultraderp instead of insulting me for my faux pas. I tried to correct that post so very many times to no avail.



You're a little late to the party, but many of us feel that the commerce clause (especially when combined with the necessary and proper clause) sufficiently enumerates such power. Or are you of the mindset that every law should be a constitutional amendment, since the constitution doesn't clearly enumerate the specifics?
 
2012-06-19 03:49:37 PM  
"Or are you of the mindset that every law should be a constitutional amendment, since the constitution doesn't clearly enumerate the specifics?"

That sounds like a deliberate exaggeration, but I'd say that if the federal government wants to govern something, we should approve their authority to govern it by ratifying their authority by a significant majority. I would imagine it is very clear to you that no wide majority of American citizens (nor states) does approve of the federal government's governing health care. How few states or citizens do you think should be required to approve of federal government in-reach into new spheres for it to be codified? Another point, states already have this authority. There is no need to federalize it.
 
2012-06-19 03:52:50 PM  

Wangiss: To the extent

To the extent

To the extent

To the extent


I rock a mic like a vandal, light the stage and watch me jump like a candle!
 
2012-06-19 03:57:25 PM  
I would also state that the interstate commerce of health insurance and medical services should indeed be regulated by the federal government. Insurers should have the ability to sell into any state whose laws do not prohibit the sale of their particular services. States should not be allowed to boycott products from other states. That's the main thrust of the commerce clause. Since interstate sales of insurance is already illegal, the commerce clause actually precludes federal interaction. The whole thing's upside down.

It bothers me that the will of the people is an afterthought in this situation. If BHO or anyone else on The Hill wants to get people insured, they should use their pulpits to encourage those governments who have the authority to enact such beneficial legislation. County hospitals have seen success in many places. Best practices should be studied. Mayors, county officials and governors could gain incredible political capital by implementing systems that save lives in places where the people welcome them.

Healthcare is, by my reading of the Tenth Amendment, a right given to the states or to the people. Take advantage of it!
 
2012-06-19 03:58:19 PM  

Dr. Mojo PhD: I rock a mic like a vandal, light the stage and watch me jump like a candle!


Dude you gotta see my car
 
2012-06-20 03:16:24 PM  

firefly212: Or are you of the mindset that every law should be a constitutional amendment, since the constitution doesn't clearly enumerate the specifics?


When the commerce clause, general welfare clause and necessary and proper clause are run hard and put up wet as justification for overreach, what is the point of enumerating power? There was no need to enumerate the power of government to establish a post office since it could be argued that the practice of sending mail is interstate commerce. There was no need to enumerate the power of congress to set laws for bankruptcies and patents since those things can be considered interstate commerce.

Liberals know why the commerce clause was written - it just makes it less convenient for them to justify the things they want to do.

We're being told that simply be existing, we are affecting commerce in some way and can now have our lives controlled and We're being told that 'general welfare' is in the eye of the legislator.
 
2012-06-21 03:33:42 PM  

o5iiawah: firefly212: Or are you of the mindset that every law should be a constitutional amendment, since the constitution doesn't clearly enumerate the specifics?

When the commerce clause, general welfare clause and necessary and proper clause are run hard and put up wet as justification for overreach, what is the point of enumerating power? There was no need to enumerate the power of government to establish a post office since it could be argued that the practice of sending mail is interstate commerce. There was no need to enumerate the power of congress to set laws for bankruptcies and patents since those things can be considered interstate commerce.

Liberals know why the commerce clause was written - it just makes it less convenient for them to justify the things they want to do.

We're being told that simply be existing, we are affecting commerce in some way and can now have our lives controlled and We're being told that 'general welfare' is in the eye of the legislator.


I don't think this is a liberal v. conservative issue... the commerce clause, and the Wickard interpretation of it in particular, end up doing weird things to both sides... the Conservatives love Wickard when it means they can regulate the lives of people they don't like (marijuana users, etc), but hate it when it gives government license to affect their lives... the Liberals love Wickard when it means they can use it to curb freeloaders (even individual non-participation) putting a drag on our economy (like the ACA), but hate when it the same individual effects reach to the world of drugs.

Both parties are on both sides of Wickard, depending on the subject to which it is being applied... the only way they're the same is that they're both hypocritical as hell.

You make it seem like this is a new thing like "now" we're going to have our lives and medical practices controlled by Congress... as someone with MS, whose neurologist, like the AMA and AAN, knows that marijuana has been much better for spasticity relating to MS than many of the other treatments out there, I'd like to point out that Conservatives have been cheering for government having a seat in my doctors office for decades now. The new argument, for Conservatives is that the government has a place in my doctors office at the desk for medical decision making, but when I get to the front desk to pay, all of a sudden theres a new magical right to my decision-making they weren't aware of minutes before. The liberal argument is basically the converse, they say the government has a place at the front desk (as they believe that affects interstate commerce), but shouldn't be following you behind closed doors at your doctors office.
 
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