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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 11:24:26 AM  
Big sigh. How can someone of such authority be so dishonest?
 
2012-06-18 11:31:31 AM  
Paragraph best summarizing whole article:

"I have always had the impression that Justice Scalia's primary approach to judging is political," Tim Jost, a professor of law at Washington and Lee University, told TPM. "Therefore, he will interpret the Commerce Clause broadly to support federal laws he likes but narrowly to strike down those he doesn't."
 
2012-06-18 11:32:48 AM  

mrshowrules: Paragraph best summarizing whole article:

"I have always had the impression that Justice Scalia's primary approach to judging is political," Tim Jost, a professor of law at Washington and Lee University, told TPM. "Therefore, he will interpret the Commerce Clause broadly to support federal laws he likes but narrowly to strike down those he doesn't."


Obvious tag... right where it belongs.
 
2012-06-18 11:35:13 AM  

JusticeandIndependence: Big sigh. How can someone of such authority be so dishonest?


He's a Republican. It's what they do.
 
2012-06-18 11:36:33 AM  
I'm pretty sure our Supreme Court has been bought.
 
2012-06-18 11:47:38 AM  
If he was born 400 years ago Antonin would have fit right in as one of the Medici or Borgia family style Popes. You know the ones with secret mistresses, private assasains and encouraged indulgences.
 
2012-06-18 11:48:15 AM  
Scalia will do whatever the hell he pleases. He doesn't fundamentally give a rat's ass about the Constitution. If he did, we might get the Fourth Amendment back.
 
2012-06-18 11:48:27 AM  

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.
 
2012-06-18 11:59:35 AM  

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.
 
2012-06-18 12:04:30 PM  

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.
 
2012-06-18 12:18:53 PM  
Scalia has been critical of Wickard v. Filburn since long before "Obamacare" was a sparkle in Obama's eye.
 
2012-06-18 12:29:03 PM  
Wonder how much he's made off of this?

/we need to amend the Constitution to end that appointment for life crap
 
2012-06-18 12:29:50 PM  

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


Do you have an example? Seriously.
 
2012-06-18 12:40:17 PM  

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


On matters such as these...or NFL contract negotiations, I defer to Kronicfeld.
 
2012-06-18 12:48:20 PM  

JusticeandIndependence: Big sigh. How can someone of such authority be so dishonest?


Golf clap.
 
2012-06-18 12:48:34 PM  
One thing is certain: Death
How we get there and how fast depends on our genetics, environment and what we do to slow it.
Health Care covers the slowing down part.
While I like the idea of freedom and not forcing people to buy something they don't want, death doesn't give a shiat.
Everyone will need health care at some point.
 
2012-06-18 12:49:44 PM  

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


I believe you, but I haven't been able to figure it out. By what mechanism is this happening? I don't see these retired lawyers living especially high on the hog (for a retired lawyer).
 
2012-06-18 12:50:43 PM  

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.


WTF dinner parties? Idiot.
 
2012-06-18 12:57:53 PM  
I kinda want to see Obamacare get overturned but not because I don't like it, I want to see the faces of those who decried how bad it was while simultaneously getting effed up the 'b' when they lose their health care coverage.


/vagina
 
2012-06-18 12:58:26 PM  
You know what? fark it, strike it down. Leave us with nowhere to go but public option. I dare you.
 
2012-06-18 12:59:36 PM  
No HERO tag?
Come on subby.

"expanded the Commerce Clause beyond all reason" by deciding that "a farmer's cultivation of wheat for his own consumption affected interstate commerce and thus could be regulated under the Commerce Clause."

no one else here thinks that isn't over-reach?
 
2012-06-18 01:00:02 PM  

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


Seriously? He basically used Wickard v. Filburn as the sole precedent for his concurring opinion in Gonzales v. Raich upholding the Controlled Substances Act.
 
2012-06-18 01:00:32 PM  

Guidette Frankentits: I kinda want to see Obamacare get overturned but not because I don't like it, I want to see the faces of those who decried how bad it was while simultaneously getting effed up the 'b' when they lose their health care coverage.


/vagina


They will blame Obama anyway. We are talking about people who think politics should be ceded to those people who wear the most American flags are are the most dedicated revolutionary war cosplayers.
 
2012-06-18 01:00:41 PM  

JusticeandIndependence: Big sigh. How can someone of such authority be so dishonest?


I'm sorry are you refering to his generally deluded and disembling nature or the fact that he and Clarence Thomas are openly taking bribes? For what it's worth, this has long been a problem with republican nominated supreme court justices.
 
2012-06-18 01:01:19 PM  

HeartBurnKid: You know what? fark it, strike it down. Leave us with nowhere to go but public option. I dare you.


There's always the "let the poor die in the streets" option. That's attractive because it reduces dependence on social services, reduces the gap in minority employment/academia, provides plenty of jobs in the sanitation/disposal/biofuel industries, and frees up blighted urban areas for redevelopment.
 
2012-06-18 01:01:52 PM  
Oh, the comments....

John Lee Johnson · Subscribe · Currently waiting for assignment at WSI

The only RATS are the DemocRATS and we will make sure they will NEVER again have the White House or a Majority on the SCOTUS and Congress. It will be ILLEGAL to be a SOCIALIST SCUM DemocRAT after we are done with you.
Reply · Like · 11 minutes ago


Oh look, it's the same guy...

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
 
2012-06-18 01:02:08 PM  

tenpoundsofcheese: No HERO tag?
Come on subby.

"expanded the Commerce Clause beyond all reason" by deciding that "a farmer's cultivation of wheat for his own consumption affected interstate commerce and thus could be regulated under the Commerce Clause."

no one else here thinks that isn't over-reach?


Why did he agree with that precedent in his concurring opinion on Gonzales v. Raich?
 
2012-06-18 01:02:09 PM  
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.
 
2012-06-18 01:02:10 PM  
If the Court rigidly stood by stare decisis, "separate but equal" would still be the law of the land. And Justices sometimes change their own minds. Hugo Black deeply regretted voting in favor of the US on the issue of internment of Japanese-Americans during WWII in the Koramatsu case. Rigid adherence to some ideological concept or rigid adherence to one's own opinions come hell or high water may be de rigeur in the Politics tab, but that's not always the case with judges.
 
2012-06-18 01:02:42 PM  
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.
 
2012-06-18 01:02:48 PM  

Wangiss: 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.

WTF dinner parties? Idiot.


You got a point, sunshine?
 
2012-06-18 01:02:54 PM  

ps69: They will blame Obama anyway. We are talking about people who think politics should be ceded to those people who wear the most American flags are are the most dedicated revolutionary war cosplayers.


While that's a totally what they'll do, they jokes on them since they'll lose health insurance.


/vagina
 
2012-06-18 01:05:17 PM  

Brandyelf: Oh, the comments....

John Lee Johnson · Subscribe · Currently waiting for assignment at WSI

The only RATS are the DemocRATS and we will make sure they will NEVER again have the White House or a Majority on the SCOTUS and Congress. It will be ILLEGAL to be a SOCIALIST SCUM DemocRAT after we are done with you.
Reply · Like · 11 minutes ago

Oh look, it's the same guy...

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


Obvious trolling of TPM is obvious.
 
2012-06-18 01:05:57 PM  

MaudlinMutantMollusk: Wonder how much he's made off of this?

/we need to amend the Constitution to end that appointment for life crap


The lifetime appointment to SCOTUS was intended to put the judges above the
political process. The framer's thinking was that if they were appointed for life
they would be more fair-minded in deciding issues than if they were directly
elected or had a term of service.

In the main, this is probably been a good strategy: there is a great tradition of
judges being put on the SCOTUS breaking their previous patterns (ISTR that
Earl Warren was a conservative before his appointment, but turned out to be
one of the most progressive judges in history). Unfortunately, the lifetime
appointment also means that party hacks like Scalia and Thomas also get in.

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.
 
2012-06-18 01:06:06 PM  

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.
 
2012-06-18 01:06:28 PM  

BeesNuts: Wangiss: 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.

WTF dinner parties? Idiot.

You got a point, sunshine?


Other than the one at the top of my head? No.
 
2012-06-18 01:06:49 PM  
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?
 
2012-06-18 01:07:31 PM  

tenpoundsofcheese: No HERO tag?
Come on subby.

"expanded the Commerce Clause beyond all reason" by deciding that "a farmer's cultivation of wheat for his own consumption affected interstate commerce and thus could be regulated under the Commerce Clause."

no one else here thinks that isn't over-reach?


He thinks it's overreach when he doesn't like where it reaches. Right into our bedrooms, classrooms, dining rooms, wallets? No such thing as overreach. Commerce Clause is BROAD! fark with the REAL money and suddenly any reach is a bridge too far.

That's what really makes Scalia so detestable. His legal arguments are airtight because they are tautological and based in a body of law that he himself helped form the better part of. Our Supreme Court can now "debate" even fundamental questions about our constitution. There's "precedent" for anything.

And when they don't want to set precedent? They just say that the case is unique and not to be used elsewhere, like Bush v Gore.

History will remember this supreme court as one of the most confusing, inconsistent, and likely corrupt, courts in our history.
 
2012-06-18 01:07:33 PM  
Translation: Scalia isn't buying the liberal talking point and is instead actually making a decision based on the Constitution.
 
2012-06-18 01:07:39 PM  
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.

If you do believe that everybody is using some level of health at all times, there is no way to truly opt out because you will be treated if you get hit by a bus, regardless of whether you have health care.

If you don't believe that people are a part of the health care system at all times, then it should be a moral and legal imperative to stop treating people without health care.

We can't have it both ways, where we treat everyone while charging only some. You either charge everyone and treat everyone or charge some and treat some.
 
2012-06-18 01:07:41 PM  

Sliding Carp: JusticeandIndependence: Big sigh. How can someone of such authority be so dishonest?

He's a Republican. It's what they do.


Go troll some place else.
 
2012-06-18 01:07:49 PM  

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 his dissent in Gonzales v. Raich that all condemned current interpretation of the Commerce Clause.


FTFM.
 
2012-06-18 01:08:59 PM  
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?



It's called Above the Law. A lot of people think they are - only a select few really are.
 
2012-06-18 01:09:07 PM  
If the court does overturn the mandate, it's going to be hard to know how to react. It's been more than 75 years since the Supreme Court overturned a piece of legislation as big as ACA, and I can't think of any example of the court overturning landmark legislation this big based on a principle as flimsy and manufactured as activity vs. inactivity. When the court overturned the NRA in 1935, it was a shock - but it was also a unanimous decision and, despite FDR's pique, not really a surprising ruling given existing precedent. Overturning ACA would be a whole different kind of game changer. 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. Pile that on top of Bush v. Gore and Citizens United and you have a Supreme Court that's pretty explicitly chosen up sides in American electoral politics. This would be, in no uncertain terms, no longer business as usual. Link
 
2012-06-18 01:09:30 PM  

Serious Black: tenpoundsofcheese: No HERO tag?
Come on subby.

"expanded the Commerce Clause beyond all reason" by deciding that "a farmer's cultivation of wheat for his own consumption affected interstate commerce and thus could be regulated under the Commerce Clause."

no one else here thinks that isn't over-reach?

Why did he agree with that precedent in his concurring opinion on Gonzales v. Raich?


ftfa: "I'm not sure there is any inconsistency between citing a decision in an opinion and thinking the decision was wrong; Justice Scalia does believe in stare decisis."

vs. others who don't seem to believe in stare decisis.
 
2012-06-18 01:09:50 PM  

Nabb1: If the Court rigidly stood by stare decisis, "separate but equal" would still be the law of the land. And Justices sometimes change their own minds. Hugo Black deeply regretted voting in favor of the US on the issue of internment of Japanese-Americans during WWII in the Koramatsu case. Rigid adherence to some ideological concept or rigid adherence to one's own opinions come hell or high water may be de rigeur in the Politics tab, but that's not always the case with judges.


You would make a good Scalia.
 
2012-06-18 01:10:21 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.


www.whosawesome.com
 
2012-06-18 01:10:38 PM  
BeesNuts

tenpoundsofcheese: No HERO tag?
Come on subby.

"expanded the Commerce Clause beyond all reason" by deciding that "a farmer's cultivation of wheat for his own consumption affected interstate commerce and thus could be regulated under the Commerce Clause."

no one else here thinks that isn't over-reach?

He thinks it's overreach when he doesn't like where it reaches. Right into our bedrooms, classrooms, dining rooms, wallets? No such thing as overreach. Commerce Clause is BROAD! fark with the REAL money and suddenly any reach is a bridge too far.

That's what really makes Scalia so detestable. His legal arguments are airtight because they are tautological and based in a body of law that he himself helped form the better part of. Our Supreme Court can now "debate" even fundamental questions about our constitution. There's "precedent" for anything.

And when they don't want to set precedent? They just say that the case is unique and not to be used elsewhere, like Bush v Gore.

History will remember this supreme court as one of the most confusing, inconsistent, and likely corrupt, courts in our history.



Which goes perfectly with our current administration.
 
2012-06-18 01:10:42 PM  

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


FTFY
 
2012-06-18 01:11:32 PM  

randomjsa: Translation: Scalia isn't buying the liberal talking point and is instead actually making a decision based on the Constitution.


Question: why did he sign onto the majority opinion that endorsed the Lopez test and issue his own concurring opinion in Gonzales v. Raich where he outright stated "Where Congress has authority to enact a regulation of interstate commerce, it possesses every power needed to make that regulation effective"? He's had 17 years to decide that Wickard v. Filburn was incorrectly decided, and he endorsed the precedent in that case at every single opportunity up till now.
 
2012-06-18 01:12:27 PM  

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.
 
2012-06-18 01:12:48 PM  
Yeah duh. I've been saying this since the case went in front of the court. He and the other GOP moles on that court are perfectly willing to not only go against precedent, but they are willing to go against their own precedent to embarrass and stymie this democratic president.
 
2012-06-18 01:13:17 PM  

DjangoStonereaver: MaudlinMutantMollusk: Wonder how much he's made off of this?

/we need to amend the Constitution to end that appointment for life crap

The lifetime appointment to SCOTUS was intended to put the judges above the
political process. The framer's thinking was that if they were appointed for life
they would be more fair-minded in deciding issues than if they were directly
elected or had a term of service.


That was the intent, but I think it's pretty safe to say that it's failed. The theory has not held up to reality, leaving us with the unintended consequence of a highly partisan congress only putting highly partisan asshats on the bench.

We do need to remove lifetime appointments to any bench. We could do judicial reviews every 10 years to re-confirm a justice's position. That gives them time to be non-political, yet still gives us the opportunity to review what morons like Thomas have done, and dump them.
 
2012-06-18 01:13:24 PM  

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


Only if you're a partisan hack.

tortilla burger: You either believe that everybody is inherently part of the health care system or you don't.


There's the broad spectrum of 'allowable implementation' to consider. You can say that the health of the citizenry is the government's responsibility (which even the most extreme libertarians would agree to in situations like a terrorist cell unleashing a viral weapon on the populace), but disagree on what is a constitutionally valid method of implementation. If the method of implementing the health care system was to outlaw/confiscate guns and sell them on the international market to fund it, that would be pretty blatantly unconstitutional.

Which is where the non-hack considerations of the HCR come up: "Is the mandate a constitutional implementation?"
 
2012-06-18 01:13:49 PM  

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.

If you do believe that everybody is using some level of health at all times, there is no way to truly opt out because you will be treated if you get hit by a bus, regardless of whether you have health care.

If you don't believe that people are a part of the health care system at all times, then it should be a moral and legal imperative to stop treating people without health care.

We can't have it both ways, where we treat everyone while charging only some. You either charge everyone and treat everyone or charge some and treat some.


Your assumptions suck a lot. Must the "system" (we don't have one, really) be federal? What about state- and county-run options? Residents of SF and other cities have had "universal" healthcare coverage for years now.

Build yourself a decent healthcare system right where you are. Don't make me pay if it sucks. The federal government is great for defense, roads, even environmental regulations if you like. But its ability to manage certain things is embarrassing.
 
2012-06-18 01:13:53 PM  
FTFA: Scalia writes that he "does not swear that the opinions that he joins or writes in the future will comply with what is written here," in part because "a judge must remain open to persuasion by counsel."

So ... bribery?
 
2012-06-18 01:14:08 PM  
Serious Black

randomjsa: Translation: Scalia isn't buying the liberal talking point and is instead actually making a decision based on the Constitution.

Question: why did he sign onto the majority opinion that endorsed the Lopez test and issue his own concurring opinion in Gonzales v. Raich where he outright stated "Where Congress has authority to enact a regulation of interstate commerce, it possesses every power needed to make that regulation effective"? He's had 17 years to decide that Wickard v. Filburn was incorrectly decided, and he endorsed the precedent in that case at every single opportunity up till now.


I think he finally came to his senses.
 
2012-06-18 01:14:14 PM  

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


Except for when he likes it, or something.
 
2012-06-18 01:17:03 PM  
I fervently disagree with Wickard, but like the ACA. Aside from all of that, if they overturn the Wickard precedent, there is a whole lot of confusion over what is/is not covered by the commerce clause.... there are tens of thousands of cases citing Wickard wherein the court has used the "reasonably related to interstate commerce" litmus... if that is no longer the case, then many of our laws, including the CSA, are placed in serious question.
 
2012-06-18 01:17:13 PM  

karnal: Serious Black

randomjsa: Translation: Scalia isn't buying the liberal talking point and is instead actually making a decision based on the Constitution.

Question: why did he sign onto the majority opinion that endorsed the Lopez test and issue his own concurring opinion in Gonzales v. Raich where he outright stated "Where Congress has authority to enact a regulation of interstate commerce, it possesses every power needed to make that regulation effective"? He's had 17 years to decide that Wickard v. Filburn was incorrectly decided, and he endorsed the precedent in that case at every single opportunity up till now.

I think he finally came to his senses.


He finally came to his senses right after a hearing on a major domestic legislative achievement by a Democratic president and Congress? That hardly seems coincidental.
 
2012-06-18 01:20:07 PM  

BeesNuts: tenpoundsofcheese: No HERO tag?
Come on subby.

"expanded the Commerce Clause beyond all reason" by deciding that "a farmer's cultivation of wheat for his own consumption affected interstate commerce and thus could be regulated under the Commerce Clause."

no one else here thinks that isn't over-reach?

He thinks it's overreach when he doesn't like where it reaches. Right into our bedrooms, classrooms, dining rooms, wallets? No such thing as overreach. Commerce Clause is BROAD! fark with the REAL money and suddenly any reach is a bridge too far.

That's what really makes Scalia so detestable. His legal arguments are airtight because they are tautological and based in a body of law that he himself helped form the better part of. Our Supreme Court can now "debate" even fundamental questions about our constitution. There's "precedent" for anything.

And when they don't want to set precedent? They just say that the case is unique and not to be used elsewhere, like Bush v Gore.

History will remember this supreme court as one of the most confusing, inconsistent, and likely corrupt, courts in our history.


Scalia isn't even the worst on the court at this point, Roberts is by far the biggest farking fascist on the court. Is it a business vs. citizens case? Already know the answer, Roberts will rule for business. With his position as head of the court, he also gets a large amount of influence on which cases they hear.

Roberts is the biggest problem, and the Chief Justice is young. He's probably not going anywhere for a long time. At least Scalia and Thomas are old and likely to retire/die sooner than later.
 
2012-06-18 01:20:26 PM  

Serious Black: He's had 17 years to decide that Wickard v. Filburn was incorrectly decided, and he endorsed the precedent in that case at every single opportunity up till now.


No. Citing a precedent is NOT endorsing it. It is respecting stare decisis. Would you rather justices not respect precedent? Isn't that what you are arguing?
 
2012-06-18 01:20:37 PM  
Ok I can't believe I'm actually defending this, but here goes.

Unless Scalia uses some broadly different interpretation of Wickard v. Filburn today than what he used seven years ago, and only time will tell, he hasn't flip-flopped yet. Not to say he won't flip-flop, but that he hasn't yet.

There is nothing inconsistent with:

1. Privately disagreeing with a decision, and offering your reasons for it while
2. Publicly upholding the decision you disagree with as a matter of professional ethics.

Neither inhabits the same domain. A doctor might be personally for personal ethics, but bound by oath to not to assist in performing it as a matter of professional ethics. A police officer might be against marijuana criminalization off-duty, but on duty is bound to enforce the law. Etc., etc.

Similarly, the principle of charity forces me to, in this case, extend to Scalia every presumption that his arguments inhabit two separate domains, the personal and the professional, until he demonstrates otherwise, which he very well may.
 
2012-06-18 01:22:32 PM  

Dr. Mojo PhD: A doctor might be personally for personal ethics


Jesus I need coffee. A doctor might personally be for euthanasia.

/The keys are like right next to each other
 
2012-06-18 01:22:49 PM  
What I find laughable is the notion that if Wickard is valid, then Obamacare must be constitutional. One does not necessarily follow the other.
 
2012-06-18 01:22:51 PM  

tenpoundsofcheese: Serious Black: He's had 17 years to decide that Wickard v. Filburn was incorrectly decided, and he endorsed the precedent in that case at every single opportunity up till now.

No. Citing a precedent is NOT endorsing it. It is respecting stare decisis. Would you rather justices not respect precedent? Isn't that what you are arguing?


I'll wait to see what Scalia's decision regarding the individual mandate is before rendering a verdict on how he respects precedent.
 
2012-06-18 01:22:51 PM  
Oh good, the check cleared.
 
2012-06-18 01:22:54 PM  

tenpoundsofcheese: Serious Black: He's had 17 years to decide that Wickard v. Filburn was incorrectly decided, and he endorsed the precedent in that case at every single opportunity up till now.

No. Citing a precedent is NOT endorsing it. It is respecting stare decisis. Would you rather justices not respect precedent? Isn't that what you are arguing?


That's what you're arguing.
 
2012-06-18 01:23:06 PM  

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.
 
2012-06-18 01:23:31 PM  
You people are missing the point:

Scalia was for an overarching Federal regulatory power when it was about keeping people off the debbil weed. A weed that KILLS people; it's about HEALTH.

Scalia is against an overarching Federal regulatory power now when it's about forcing the American people to buy things. Things that mkae you POOR; it's about BUSINESS.

Get it? You stupid libs and your point-missing...
 
2012-06-18 01:24:06 PM  

tenpoundsofcheese: No HERO tag?
Come on subby.

"expanded the Commerce Clause beyond all reason" by deciding that "a farmer's cultivation of wheat for his own consumption affected interstate commerce and thus could be regulated under the Commerce Clause."

no one else here thinks that isn't over-reach?


tell that to the war on drugs.
 
2012-06-18 01:24:36 PM  
FTFA: He notes that while precedent factored into some of them, in other cases it's "because wisdom has come late."

Sounds like he's rationalizing and making excuses for what he's going to do. "Too soon old, too late smart".
 
2012-06-18 01:26:06 PM  
"I have always had the impression that Justice Scalia's primary approach to judging is political," Tim Jost, a professor of law at Washington and Lee University, told TPM. "Therefore, he will interpret the Commerce Clause broadly to support federal laws he likes but narrowly to strike down those he doesn't."

Exactly right. It doesn't matter what the law is, as these guys have proven time and again that they'll do whatever they want. I also find it amusing that people think they even care about the impressions created by a divided court. None of them do. There is no doubt in my mind that Alito, Thomas, Scalia, and Roberts will do whatever they think will help conservatism the most, precedents and outcomes of their actions be damned.
 
2012-06-18 01:28:38 PM  
Toss me in with the he's obviously corrupt crowd. Hasn't he been spotted at events sponsored by the people that brought us Citizen's United? Shouldn't that be a red flag that he's been bought?

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
 
2012-06-18 01:29:11 PM  
What's the Vegas line on Scalia finding that the part of the health care bill that prohibits insurance companies from dropping people because of pre-existing condintions unconstitutional, but the part that requires people to buy insurance is fine and dandy?

/even odds that Obamacare will be struck down by a 5-4 split, and that it'll be the exact same split from Citizens United
 
2012-06-18 01:33:26 PM  

Cataholic: What I find laughable is the notion that if Wickard is valid, then Obamacare must be constitutional. One does not necessarily follow the other.


Actually, according to Judge Laurence Silberman, that's exactly what it means.
 
2012-06-18 01:33:37 PM  

chuggernaught: Toss me in with the he's obviously corrupt crowd. Hasn't he been spotted at events sponsored by the people that brought us Citizen's United? Shouldn't that be a red flag that he's been bought?

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


This is how every single conservative thinks, thet won't admit it, but they want us to comply or die.
 
2012-06-18 01:34:16 PM  

Serious Black: tenpoundsofcheese: Serious Black: He's had 17 years to decide that Wickard v. Filburn was incorrectly decided, and he endorsed the precedent in that case at every single opportunity up till now.

No. Citing a precedent is NOT endorsing it. It is respecting stare decisis. Would you rather justices not respect precedent? Isn't that what you are arguing?

I'll wait to see what Scalia's decision regarding the individual mandate is before rendering a verdict on how he respects precedent.


apples != oranges.

Just because someone claims commerce clause, doesn't mean that it is.
you can have a precedent and also decide that the case has nothing to do with that precedent.
 
2012-06-18 01:35:57 PM  

dababler: chuggernaught: Toss me in with the he's obviously corrupt crowd. Hasn't he been spotted at events sponsored by the people that brought us Citizen's United? Shouldn't that be a red flag that he's been bought?

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

This is how every single conservative thinks, thet won't admit it, but they want us to comply or die.


You have inspired me to flip the Poe coin.
 
2012-06-18 01:40:26 PM  

tenpoundsofcheese: Serious Black: tenpoundsofcheese: Serious Black: He's had 17 years to decide that Wickard v. Filburn was incorrectly decided, and he endorsed the precedent in that case at every single opportunity up till now.

No. Citing a precedent is NOT endorsing it. It is respecting stare decisis. Would you rather justices not respect precedent? Isn't that what you are arguing?

I'll wait to see what Scalia's decision regarding the individual mandate is before rendering a verdict on how he respects precedent.

apples != oranges.

Just because someone claims commerce clause, doesn't mean that it is.
you can have a precedent and also decide that the case has nothing to do with that precedent.


So how exactly does the substantial effects doctrine as spelled out in Wickard v. Filburn and affirmed in too many court cases to list here not apply to a command to purchase health insurance or pay a nominal fee?

"Cases since Wickard have minimized the significance of any particular individual's behavior yet further. They have repeatedly confirmed that the actual impact of any one individual's conduct on interstate commerce is immaterial, so long as a rational basis exists for believing that a congressional enactment, as a whole, substantially relates to interstate commerce. A single individual need not even be engaged in any economic activity-i.e. not participating in any local or interstate market-so long as the individual is engaged in some type of behavior that would undercut a broader economic regulation if left unregulated. And a single individual need not even be engaging in the harmful activity that Congress deems responsible for a national economic problem; it is enough that in general, most do. Thus, when Congress finds that organized crime harms interstate commerce, and that most loan sharks are part of organized crime, Congress can regulate even those individual loan sharks who are not part of organized crime. Similarly, it is irrelevant that an indeterminate number of healthy, uninsured persons will never consume health care, and will therefore never affect the interstate market. Broad regulation is an inherent feature of Congress's constitutional authority in this area; to regulate complex, nationwide economic problems is to necessarily deal in generalities. Congress reasonably determined that as a class, the uninsured create market failures; thus, the lack of harm attributable to any particular uninsured individual, like their lack of overt participation in a market, is of no consequence.

That a direct requirement for most Americans to purchase any product or service seems an intrusive exercise of legislative power surely explains why Congress has not used this authority before-but that seems to us a political judgment rather than a recognition of constitutional limitations. It certainly is an encroachment on individual liberty, but it is no more so than a command that restaurants or hotels are obliged to serve all customers regardless of race, that gravely ill individuals cannot use a substance their doctors described as the only effective palliative for excruciating pain, or that a farmer cannot grow enough wheat to support his own family. The right to be free from federal regulation is not absolute, and yields to the imperative that Congress be free to forge national solutions to national problems, no matter how local-or seemingly passive-their individual origins."
 
2012-06-18 01:40:58 PM  

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.
 
2012-06-18 01:41:19 PM  

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.


Yeah, about that. Iowa voted out state supreme court judges because of their decision on gay marriage. That's a horrible misuse of democracy. Some judges may make political rulings sometimes but if we force them to be politicians they will all make political rulings always.
 
2012-06-18 01:41:44 PM  

Stratohead: tenpoundsofcheese: No HERO tag?
Come on subby.

"expanded the Commerce Clause beyond all reason" by deciding that "a farmer's cultivation of wheat for his own consumption affected interstate commerce and thus could be regulated under the Commerce Clause."

no one else here thinks that isn't over-reach?

tell that to the war on drugs.


Exactly... to "conservatives" growing your own plants and ingesting them is a matter of interstate commerce when they don't like it, but regulating a vast network of healthcare financing, bloc grants, state insurers, and private insurers is not related to interstate commerce.
 
2012-06-18 01:41:59 PM  
Just another activist judge legislating from the bench?
 
2012-06-18 01:43:04 PM  

Nem Wan: 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.

Yeah, about that. Iowa voted out state supreme court judges because of their decision on gay marriage. That's a horrible misuse of democracy. Some judges may make political rulings sometimes but if we force them to be politicians they will all make political rulings always.


What ways would you allow people to govern themselves? Democracy bad, republic bad... what do you think is okay?
 
2012-06-18 01:43:07 PM  
i231.photobucket.com

/hot
 
2012-06-18 01:48:37 PM  

Serious Black: tenpoundsofcheese: Serious Black: tenpoundsofcheese: Serious Black: He's had 17 years to decide that Wickard v. Filburn was incorrectly decided, and he endorsed the precedent in that case at every single opportunity up till now.

No. Citing a precedent is NOT endorsing it. It is respecting stare decisis. Would you rather justices not respect precedent? Isn't that what you are arguing?

I'll wait to see what Scalia's decision regarding the individual mandate is before rendering a verdict on how he respects precedent.

apples != oranges.

Just because someone claims commerce clause, doesn't mean that it is.
you can have a precedent and also decide that the case has nothing to do with that precedent.

So how exactly does the substantial effects doctrine as spelled out in Wickard v. Filburn and affirmed in too many court cases to list here not apply to a command to purchase health insurance or pay a nominal fee?

Thus, when Congress finds that organized crime harms interstate commerce, and that most loan sharks are part of organized crime, Congress can regulate even those individual loan sharks who are not part of organized crime. .


you may want to brush up on Wickard v. Filburn. Just citing the case you want to agree with to make your point seems a little silly.
 
2012-06-18 01:49:51 PM  
"I have always had the impression that Justice Scalia's primary approach to judging is political," Tim Jost, a professor of law at Washington and Lee University, told TPM. "Therefore, he will interpret the Commerce Clause broadly to support federal laws he likes but narrowly to strike down those he doesn't."

"This is typical Scalia," added Adam Winkler, a professor at UCLA School of Law. "He respects precedents when they fit his conservative ideology and disregards them when they don't. ... "Once again, we see that Scalia's originalism is a charade."


Ding!

He notes that while precedent factored into some of them, in other cases it's "because wisdom has come late political favors have come late."

Fixed it for him
 
2012-06-18 01:50:18 PM  

Serious Black: tenpoundsofcheese: No HERO tag?
Come on subby.

"expanded the Commerce Clause beyond all reason" by deciding that "a farmer's cultivation of wheat for his own consumption affected interstate commerce and thus could be regulated under the Commerce Clause."

no one else here thinks that isn't over-reach?

Why did he agree with that precedent in his concurring opinion on Gonzales v. Raich?


It doesn't matter: Wickard v. Filburn basically says Congress can regulate economic activity even if it is local use, because it effects the larger economy. It doesn't say that Congress can *REQUIRE* you to engage in a certain economic activity simply by virtue of being alive. In other words, Congress can regulate activity under Wickard, but not inactivity. Under Wickard, if you want to plant wheat (or in Gonzales, marijuana), that's an economic activity and the federal government can regulate that under the very stretched and strained understanding of the Commerce Clause.

What the government *CAN'T* do is require that every person with X amount of arable property plant wheat. Even the most strained reading of Wickard doesn't allow that. And that's what PPACA is doing: Requiring everyone, whether they want to or not, to engage in an economic activity. Congress just doesn't have the authority under the Constitution to do that.

/Thinks Wickard was over-reach.
//But that's ear-elephant.
 
2012-06-18 01:50:39 PM  

Serious Black: So how exactly does the substantial effects doctrine as spelled out in Wickard v. Filburn and affirmed in too many court cases to list here not apply to a command to purchase health insurance or pay a nominal fee?


Significantly in that a mandate is not a regulatory action. Regulation implicitly implies an activity to be regulated. Because of this, it doesn't directly apply, which is why the argument is made that it's regulation of the health insurance market in general due to the way that involvement in the health care market is pretty much going to happen and uninsured individuals impact the prices of that health care.

Which is why it's substantially different from, say, a law that would require insurance at hospitals before you could receive any (even emergency) care. That would be direct regulation of the health care market.
 
2012-06-18 01:52:05 PM  

firefly212: I fervently disagree with Wickard, but like the ACA. Aside from all of that, if they overturn the Wickard precedent, there is a whole lot of confusion over what is/is not covered by the commerce clause.... there are tens of thousands of cases citing Wickard wherein the court has used the "reasonably related to interstate commerce" litmus... if that is no longer the case, then many of our laws, including the CSA, are placed in serious question.


I'm sure this is considered a long-awaited feature, and not a dangerous bug.
 
2012-06-18 01:52:08 PM  

tenpoundsofcheese: No HERO tag?
Come on subby.

"expanded the Commerce Clause beyond all reason" by deciding that "a farmer's cultivation of wheat for his own consumption affected interstate commerce and thus could be regulated under the Commerce Clause."

no one else here thinks that isn't over-reach?


The problem is line-drawing. The reasoning is that by growing his own stuff to consume, the farmer is affecting grain prices on the greater interstate market. Yeah, it's a bit protracted, but it's important to keep in mind the historical context. Before Wickard, the Supreme Court's favorite pastime was to strike down economic regulations. So, the court would say "this commerce isn't interstate commerce, but this is." The line drawing became virtually impossible, and really just allowed the justices to make it up as they went along.

So, since Wickard, the Supreme Court will generally uphold any commerce regulation as regulating interstate commerce. The whole point of the article is that just a few years ago, Scalia used Wickard as the basis for the federal government being able to prevent someone from growing marijuana in their back yard for their own consumption.

But now Scalia's saying Wickard was wrongly decided, so what changed? Nothing. Scalia wants to strike down the health care law, so now he's willing to say "oh, now I think that the Wickard decision was wrong." That's the hallmark of an activist judge - and Scalia is as activist as they come. Considering the numerous long-standing precedents that the conservative wing of the court has overturned in recent years, any conservative who biatches about "activist liberal judges" because they don't "respect precedent" and make "political decisions" needs to be cockpunched.
 
2012-06-18 01:53:30 PM  

dittybopper: Serious Black: tenpoundsofcheese: No HERO tag?
Come on subby.

"expanded the Commerce Clause beyond all reason" by deciding that "a farmer's cultivation of wheat for his own consumption affected interstate commerce and thus could be regulated under the Commerce Clause."

no one else here thinks that isn't over-reach?

Why did he agree with that precedent in his concurring opinion on Gonzales v. Raich?

It doesn't matter: Wickard v. Filburn basically says Congress can regulate economic activity even if it is local use, because it effects the larger economy. It doesn't say that Congress can *REQUIRE* you to engage in a certain economic activity simply by virtue of being alive. In other words, Congress can regulate activity under Wickard, but not inactivity. Under Wickard, if you want to plant wheat (or in Gonzales, marijuana), that's an economic activity and the federal government can regulate that under the very stretched and strained understanding of the Commerce Clause.

What the government *CAN'T* do is require that every person with X amount of arable property plant wheat. Even the most strained reading of Wickard doesn't allow that. And that's what PPACA is doing: Requiring everyone, whether they want to or not, to engage in an economic activity. Congress just doesn't have the authority under the Constitution to do that.

/Thinks Wickard was over-reach.
//But that's ear-elephant.


Your argument is based on the idea that non-payment for the base level of coverage mandated by hospital ER treatments does not constitute economic activity... the problem is that uninsured people cost our medical facilities (hospital ERs mostly) billions of dollars every year because these people choose not to pay, though they are inherently active within the healthcare system by virtue of being alive and covered by our minimum standards of care.
 
2012-06-18 01:53:35 PM  
...and undo Romneycare too? Let the fun begin!
 
2012-06-18 01:54:11 PM  

Wangiss: Nem Wan: 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.

Yeah, about that. Iowa voted out state supreme court judges because of their decision on gay marriage. That's a horrible misuse of democracy. Some judges may make political rulings sometimes but if we force them to be politicians they will all make political rulings always.

What ways would you allow people to govern themselves? Democracy bad, republic bad... what do you think is okay?


Yeah, that's not what he said. You could try addressing the substance of the argument.
 
2012-06-18 01:56:26 PM  

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.
 
2012-06-18 01:58:47 PM  

dittybopper: Serious Black: tenpoundsofcheese: No HERO tag?
Come on subby.

"expanded the Commerce Clause beyond all reason" by deciding that "a farmer's cultivation of wheat for his own consumption affected interstate commerce and thus could be regulated under the Commerce Clause."

no one else here thinks that isn't over-reach?

Why did he agree with that precedent in his concurring opinion on Gonzales v. Raich?

It doesn't matter: Wickard v. Filburn basically says Congress can regulate economic activity even if it is local use, because it effects the larger economy. It doesn't say that Congress can *REQUIRE* you to engage in a certain economic activity simply by virtue of being alive. In other words, Congress can regulate activity under Wickard, but not inactivity. Under Wickard, if you want to plant wheat (or in Gonzales, marijuana), that's an economic activity and the federal government can regulate that under the very stretched and strained understanding of the Commerce Clause.

What the government *CAN'T* do is require that every person with X amount of arable property plant wheat. Even the most strained reading of Wickard doesn't allow that. And that's what PPACA is doing: Requiring everyone, whether they want to or not, to engage in an economic activity. Congress just doesn't have the authority under the Constitution to do that.

/Thinks Wickard was over-reach.
//But that's ear-elephant.


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.

I understand that you don't like Wickard, but even Scalia acknowledges that you have to overrule it if you want to overturn the Affordable Care Act.
 
2012-06-18 02:04:29 PM  

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................?
 
2012-06-18 02:04:34 PM  
Anyone that thinks that the "commerce clause" hasn't been stretched beyond all reason has their head firmly implanted in their ass. The "commerce clause" (much like the "welfare clause") has been used to increase the power of the federal government at the expense of individual liberty. Then again, this being fark, I wouldn't be surprised that so many approve of the government being involved in every aspect of our lives.
 
2012-06-18 02:06:36 PM  
Had Wickard happened before Reefer Madness was made, this scene wouldn't have been the same. That crazy 10th amendment thing....
 
2012-06-18 02:08:38 PM  
did anyone seriously think that scalia wouldn't vote to overturn obamacare?

the votes to watch are kennedy and even maybe roberts.

breyer, ginsberg, kagan and sotomayor will vote for, scalia, alito, and thomas will vote against.

as usual, kennedy is the swing vote. 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.
 
2012-06-18 02:08:53 PM  

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.
 
2012-06-18 02:09:26 PM  
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.
 
2012-06-18 02:09:43 PM  

slayer199: Then again, this being fark, I wouldn't be surprised that so many approve of the government being involved in every aspect of our lives.


you mean like telling us whom we can and can't marry?
 
2012-06-18 02:10:14 PM  

Nabb1: If the Court rigidly stood by stare decisis, "separate but equal" would still be the law of the land. And Justices sometimes change their own minds. Hugo Black deeply regretted voting in favor of the US on the issue of internment of Japanese-Americans during WWII in the Koramatsu case. Rigid adherence to some ideological concept or rigid adherence to one's own opinions come hell or high water may be de rigeur in the Politics tab, but that's not always the case with judges.


Yeah, we're a little more suspicious of it when it's suddenly coinciding with something this politicized.
 
2012-06-18 02:11:54 PM  

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.


Hmmm....

Tough call considering that the Taney court tended not to overturn prior rulings except in the Dred Scott case,
though that one case could arguably be cited as pouring the gasoline onto the tinder of antebellum Union's
disparate attitudes toward slavery that would erupt into war.

I fear it will take something like a war to shake out this court.
 
2012-06-18 02:16:18 PM  

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)
 
2012-06-18 02:20:07 PM  

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.
 
2012-06-18 02:20:41 PM  

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.
 
2012-06-18 02:23:06 PM  

Dr. Mojo PhD: 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)


It's not a false dichotomy.

It is however hilarious in that it posits people who aren't part of the healthcare system.
 
2012-06-18 02:26:15 PM  
Payback's a biatch, libs.

tucsongrowup.com

/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
 
2012-06-18 02:26:21 PM  

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.
 
2012-06-18 02:27:23 PM  

NuttierThanEver: If anything I think congress should get to nominate 10 people


With Congress the way it is today, I don't think this is a good idea. Such a process could take decades.
 
2012-06-18 02:29:34 PM  

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?
 
2012-06-18 02:32:40 PM  

Wangiss: Vodka Zombie: I'm pretty sure our Supreme Court has been bought.

I believe you, but I haven't been able to figure it out. By what mechanism is this happening? I don't see these retired lawyers living especially high on the hog (for a retired lawyer).


As I understand it, (and not specifically for the Supreme Court, but generically for politicians) a big part of it is corporate donations to vanity charities run by the politician's wife or other family members, that then provides salary and expenses to the relatives.
 
2012-06-18 02:33:44 PM  

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".
 
2012-06-18 02:37:31 PM  

Guidette Frankentits: I kinda want to see Obamacare get overturned but not because I don't like it, I want to see the faces of those who decried how bad it was while simultaneously getting effed up the 'b' when they lose their health care coverage.


/vagina


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.
 
2012-06-18 02:40:07 PM  

FlashHarry: you mean like telling us whom we can and can't marry?


Not sure if the "commerce clause" has anything to do with that BS, but both sides of the equation (Democrats and Republicans) are guilty of expanding the power of the federal government at the expense of individual liberty.
 
2012-06-18 02:43:31 PM  

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?
 
2012-06-18 02:51:40 PM  

firefly212: 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.

[...]

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.


I'd like to believe that, but considering the rightward lurch this country's been in about since I was born (we may now just be starting to level out and inch, ever-so-slightly to the port side), you'll forgive me for not being optimistic.

// 1981
 
2012-06-18 02:52:57 PM  
what other laws will be invalidated if the activist roberts court invalidates wickard?
 
2012-06-18 02:58:46 PM  

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.
 
2012-06-18 03:02:51 PM  

FlashHarry: what other laws will be invalidated if the activist roberts court invalidates wickard?


I don't know, but I look forward to sucking down some interesting patent medicines.
 
2012-06-18 03:07:39 PM  

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.
 
2012-06-18 03:13:46 PM  

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?
 
2012-06-18 03:27:23 PM  

Chummer45: That's the hallmark of an activist judge - and Scalia is as activist as they come. Considering the numerous long-standing precedents that the conservative wing of the court has overturned in recent years


Let's not lose sight of this: The current edition of the SCOTUS is a Reactionary Activist Court of the highest order.
 
2012-06-18 03:28:16 PM  

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?"
 
2012-06-18 03:29:02 PM  

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.
 
2012-06-18 03:31:33 PM  
and yet he gets to keep his job, even when he says he's going to abuse his power...
 
2012-06-18 03:32:55 PM  

firefly212: That said, the numbers show that 85 percent of Americans do participate in a given one year period


I'd say the number is much higher, just because the vast majority of children are born in hospitals (meaning they've participated as a condition of being born to begin with) and not to mention the well-baby visits, preschool sicknesses that spread everywhere and such. Unless you're raising your young kid in a log cabin in a national park, they've been to the doctor recently, and thus so have you and your pocketbook.
 
2012-06-18 04:01:00 PM  

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.
 
2012-06-18 04:22:56 PM  

Do you know the way to Mordor: 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?"


Questions should be multiple choice so that the correct answer is pre-determined. The questions should be selected like a jury selection process whereby each political party can deny 50 questions each from an initial pool of 200 questions submitted by academics (selected by a draw).
 
2012-06-18 04:25:36 PM  

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.
 
2012-06-18 04:26:39 PM  

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?
 
2012-06-18 04:34:32 PM  

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!!
 
2012-06-18 04:34:55 PM  
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?
 
2012-06-18 04:35:33 PM  
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.
 
2012-06-18 04:39:30 PM  

patrick767: 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?


Anyone who is still immune to a disease they were vaccinated against is "participating in the health care system".

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

The irritating part is that my higher premiums are used to cover you lazy freeriding assclowns who think some people shouldn't have to chip in.
 
2012-06-18 04:45:50 PM  

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...
 
2012-06-18 04:49:23 PM  

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.
 
2012-06-18 04:53:30 PM  
"Justice Scalia does believe in stare decisis."

[citation needed]
 
2012-06-18 05:11:35 PM  

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.
 
2012-06-18 05:22:01 PM  
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!!!
 
2012-06-18 05:23:31 PM  

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
 
2012-06-18 05:26:27 PM  

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.
 
2012-06-18 05:29:28 PM  
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!!
 
2012-06-18 05:32:11 PM  
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.
 
2012-06-18 05:37:17 PM  
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
 
2012-06-18 05:38:18 PM  
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.
 
2012-06-18 05:45:14 PM  

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.
 
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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