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Author: Subject: A Big Week For the Constitution

Maximum Peach





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  posted on 3/25/2012 at 07:52 PM
Arguments start tomorrow is the most significant case to come before the Supreme Count in years: is Obamacare's mandate that all American's buy insurance within the power of the Federal govt?

If the court rules against, as it should, it reafirms our principle of limited Federal govt. That's not to say that state-run health care is un-Constitutional. The powers to enact such a system lies within the authority of each state. But re-defining the power of the Federal govt to do this would re-shape their role to a virtually unlimited point in terms of what they can ask of or impose upon the citizens. The future of what has been understood since the country's creation as 'American liberty' is at stake.

quote:
Liberty and ObamaCare

The Affordable Care Act claims federal power is unlimited. Now the High Court must decide.

Few legal cases in the modern era are as consequential, or as defining, as the challenges to the Patient Protection and Affordable Care Act that the Supreme Court hears beginning Monday. The powers that the Obama Administration is claiming change the structure of the American government as it has existed for 225 years. Thus has the health-care law provoked an unprecedented and unnecessary constitutional showdown that endangers individual liberty.

It is a remarkable moment. The High Court has scheduled the longest oral arguments in nearly a half-century: five and a half hours, spread over three days. Yet Democrats, the liberal legal establishment and the press corps spent most of 2010 and 2011 deriding the government of limited and enumerated powers of Article I as a quaint artifact of the 18th century. Now even President Obama and his staff seem to grasp their constitutional gamble.

Consider a White House strategy memo that leaked this month, revealing that senior Administration officials are coordinating with liberal advocacy groups to pressure the Court. "Frame the Supreme Court oral arguments in terms of real people and real benefits that would be lost if the law were overturned," the memo notes, rather than "the individual responsibility piece of the law and the legal precedence [sic]." Those nonpolitical details are merely what "lawyers will be talking about."

The White House is even organizing demonstrations during the proceedings, including a "'prayerful witness' encircling the Supreme Court." The executive branch is supposed to speak to the Court through the Solicitor General, not agitprop and crowds in the streets.

The Supreme Court will not be ruling about matters of partisan conviction, or the President's re-election campaign, or even about health care at all. The lawsuit filed by 26 states and the National Federation of Independent Business is about the outer boundaries of federal power and the architecture of the U.S. political system.

***
The argument against the individual mandate—the requirement that everyone buy health insurance or pay a penalty—is carefully anchored in constitutional precedent and American history. The Commerce Clause that the government invokes to defend such regulation has always applied to commercial and economic transactions, not to individuals as members of society.

This distinction is crucial. The health-care and health-insurance markets are classic interstate commerce. The federal government can regulate broadly—though not without limit—and it has. It could even mandate that people use insurance to purchase the services of doctors and hospitals, because then it would be regulating market participation. But with ObamaCare the government is asserting for the first time that it can compel people to enter those markets, and only then to regulate how they consume health care and health insurance. In a word, the government is claiming it can create commerce so it has something to regulate.

This is another way of describing plenary police powers—regulations of private behavior to advance public order and welfare. The problem is that with two explicit exceptions (military conscription and jury duty) the Constitution withholds such power from a central government and vests that authority in the states. It is a black-letter axiom: Congress and the President can make rules for actions and objects; states can make rules for citizens.

The framers feared arbitrary and centralized power, so they designed the federalist system—which predates the Bill of Rights—to diffuse and limit power and to guarantee accountability. Upholding the ObamaCare mandate requires a vision on the Commerce Clause so broad that it would erase dual sovereignty and extend the new reach of federal general police powers into every sphere of what used to be individual autonomy.

These federalist protections have endured despite the shifting definition and scope of interstate commerce and activities that substantially affect it. The Commerce Clause was initially seen as a modest power, meant to eliminate the interstate tariffs that prevailed under the Articles of Confederation. James Madison noted in Federalist No. 45 that it was "an addition which few oppose, and from which no apprehensions are entertained." The Father of the Constitution also noted that the powers of the states are "numerous and infinite" while the federal government's are "few and defined."

That view changed in the New Deal era as the Supreme Court blessed the expansive powers of federal economic regulation understood today. A famous 1942 ruling, Wickard v. Filburn, held that Congress could regulate growing wheat for personal consumption because in the aggregate such farming would affect interstate wheat prices. The Court reaffirmed that precedent as recently as 2005, in Gonzales v. Raich, regarding homegrown marijuana.

The Court, however, has never held that the Commerce Clause is an ad hoc license for anything the government wants to do. In 1995, in Lopez, it gave the clause more definition by striking down a Congressional ban on carrying guns near schools, which didn't rise to the level of influencing interstate commerce. It did the same in 2000, in Morrison, about a federal violence against women statute.

A thread that runs through all these cases is that the Court has always required some limiting principle that is meaningful and can be enforced by the legal system. As the Affordable Care Act suits have ascended through the courts, the Justice Department has been repeatedly asked to articulate some benchmark that distinguishes this specific individual mandate from some other purchase mandate that would be unconstitutional. Justice has tried and failed, because a limiting principle does not exist.

The best the government can do is to claim that health care is unique. It is not. Other industries also have high costs that mean buyers and sellers risk potentially catastrophic expenses—think of housing, or credit-card debt. Health costs are unpredictable—but all markets are inherently unpredictable. The uninsured can make insurance pools more expensive and transfer their costs to those with coverage—though then again, similar cost-shifting is the foundation of bankruptcy law.

The reality is that every decision not to buy some good or service has some effect on the interstate market for that good or service. The government is asserting that because there are ultimate economic consequences it has the power to control the most basic decisions about how people spend their own money in their day-to-day lives. The next stops on this outbound train could be mortgages, college tuition, credit, investment, saving for retirement, Treasurys, and who knows what else.

***
Confronted with these concerns, the Administration has echoed Nancy Pelosi when she was asked if the individual mandate was constitutional: "Are you serious?" The political class, the Administration says, would never abuse police powers to create the proverbial broccoli mandate or force people to buy a U.S.-made car.

But who could have predicted that the government would pass a health plan mandate that is opposed by two of three voters? The argument is self-refuting, and it shows why upholding the rule of law and defending the structural checks and balances of the separation of powers is more vital than ever.

Another Administration fallback is the Constitution's Necessary and Proper Clause, which says Congress can pass laws to execute its other powers. Yet the Court has never hesitated to strike down laws that are not based on an enumerated power even if they're part of an otherwise proper scheme. This clause isn't some ticket to justify inherently unconstitutional actions.

In this context, the Administration says the individual mandate is necessary so that the Affordable Care Act's other regulations "work." Those regulations make insurance more expensive. So the younger and healthier must buy insurance that they may not need or want to cross-subsidize the older and sicker who are likely to need costly care. But that doesn't make the other regulations more "effective." The individual mandate is meant to offset their intended financial effects.

***
Some good-faith critics have also warned that overturning the law would amount to conservative "judicial activism," saying that the dispute is only political. This is reductive reasoning. Laws obey the Constitution or they don't. The courts ought to defer to the will of lawmakers who pass bills and the Presidents who sign them, except when those bills violate the founding document.

As for respect of the democratic process, there are plenty of ordinary, perfectly constitutional ways the Obama Democrats could have reformed health care and achieved the same result. They could have raised taxes to fund national health care or to make direct cross-subsidy transfers to sick people. They chose not to avail themselves of those options because they'd be politically unpopular. The individual mandate was in that sense a deliberate evasion of the accountability the Constitution's separation of powers is meant to protect.

Meanwhile, some on the right are treating this case as a libertarian seminar and rooting for the end of the New Deal precedents. But the Court need not abridge stare decisis and the plaintiffs are not asking it to do so. The Great Depression farmer in Wickard, Roscoe Filburn, was prohibited from growing wheat, and that ban, however unwise, could be reinstated today. Even during the New Deal the government never claimed that nonconsumers of wheat were affecting interstate wheat prices, or contemplated forcing everyone to buy wheat in order to do so.

The crux of the matter is that by arrogating to itself plenary police powers, the government crossed a line that Justice Anthony Kennedy drew in his Lopez concurrence. The "federal balance," he wrote, "is too essential a part of our constitutional structure and plays too vital a role in securing freedom for us to admit inability to intervene when one or the other level of government has tipped the scale too far."

***
The constitutional questions the Affordable Care Act poses are great, novel and grave, as much today as they were when they were first posed in an op-ed on these pages by the Washington lawyers David Rivkin and Lee Casey on September 18, 2009. The appellate circuits are split, as are legal experts of all interpretative persuasions.

The Obama Administration and its allies are already planning to attack the Court's credibility and legitimacy if it overturns the Affordable Care Act. They will claim it is a purely political decision, but this should not sway the Justices any more than should the law's unpopularity with the public.

The stakes are much larger than one law or one President. It is not an exaggeration to say that the Supreme Court's answers may constitute a hinge in the history of American liberty and limited and enumerated government. The Justices must decide if those principles still mean something.

http://online.wsj.com/article/SB10001424052702304724404577291762007718228.h tml?mod=opinion_newsreel


 

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Obamacare: To insure the uninsured, we first make the insured
uninsured and then make them pay more to be insured again,
so the original uninsured can be insured for free.

 
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True Peach



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  posted on 3/25/2012 at 08:55 PM
I'll give you 5-4 odds it gets defeated....natch

 

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Zen Peach



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  posted on 3/26/2012 at 08:04 AM
Indeed a hugely important fork in the road. If upheld, any limits on the power of the Federal goverment have all but disappeared.

Should be overturned 9-0, but something tells me it won't be.

 

Zen Peach



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  posted on 3/26/2012 at 08:24 AM
Rich/Alloak,

Since none of us were on the board back in 2001/2, what were/are your feelings about the Patriot Act?

 

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  posted on 3/26/2012 at 08:28 AM
This is mostly a question that speaks to this "overreach of the Federal government to our rights and liberty" argument.

 

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True Peach



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  posted on 3/26/2012 at 08:45 AM
quote:
Rich/Alloak,

Since none of us were on the board back in 2001/2, what were/are your feelings about the Patriot Act?


You didn't direct this to me, but I'll weigh in anyway. I think both the Patriot Act and Obamacare are examples of federal govt overreach. I prefer Supreme Court justices who, when presented with borderline cases, would rather err on the side of limiting government powers than the side of granting questionable powers.

 

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Maximum Peach



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  posted on 3/26/2012 at 08:48 AM
I'm certainly no fan of the Patriot Act, the TSA, the recent NDAA, or the enormous growth of intelligence infrastructure that has developed over the last decade. Far too much has been traded away in the cause of 'keeping us safe', and most of the population just accepts it without question.

 

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Obamacare: To insure the uninsured, we first make the insured

uninsured and then make them pay more to be insured again,

so the original uninsured can be insured for free.

 

Maximum Peach



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  posted on 3/26/2012 at 08:50 AM
I'm guessing this will get defeated in the SP.

 

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  posted on 3/26/2012 at 09:05 AM
quote:
Rich/Alloak,

Since none of us were on the board back in 2001/2, what were/are your feelings about the Patriot Act?


Didn't like it then, don't like it now.

 

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  posted on 3/26/2012 at 09:08 AM
I've always wondered why the dem's never repealed the Patriot Act when they had control of the Legislative and Executive branches of the Gov't a few years ago ?

It (Patriot Act) never should of been passed in the first place. It comes down to our populace being programmed into this attitude of if it doesn' effect or inconvenience me in a way I notice immediately....Then I don't care.

 

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  posted on 3/26/2012 at 09:08 AM
If they wrote the Affordable Care Act without the individual mandate, would conservatives still be against it? I've always wondered about that.

 

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  posted on 3/26/2012 at 09:15 AM
quote:
If they wrote the Affordable Care Act without the individual mandate, would conservatives still be against it? I've always wondered about that.


I know just as many people who vote democrat that are against it than those that vote republican. Again, people make it into this us vs them trip. IMHO , the reaon why nothin is gonna ever change or get fixed in my lifetime.

 

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  posted on 3/26/2012 at 09:19 AM
quote:
quote:
Rich/Alloak,

Since none of us were on the board back in 2001/2, what were/are your feelings about the Patriot Act?


You didn't direct this to me, but I'll weigh in anyway. I think both the Patriot Act and Obamacare are examples of federal govt overreach. I prefer Supreme Court justices who, when presented with borderline cases, would rather err on the side of limiting government powers than the side of granting questionable powers.


Hey, it's the WP. No invite needed!

I don't like the penalty that's assessed against you if you choose to go without insurance and let's remember that you are NOT forced to buy insurance, you pay a $95 penalty/tax if you decline which goes to cover the uninsured. Unlike the auto no-fault laws where you can't legally drive without insurance.

Who are the ones that are going to opt for the penalty/tax? More than likely the poor uninsured who can't afford it anyway. I can't see anyone who has health insurance opting out of coverage. You may get several protesters if the SCOTUS endorses it.

 

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Zen Peach



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  posted on 3/26/2012 at 09:29 AM
quote:
quote:
If they wrote the Affordable Care Act without the individual mandate, would conservatives still be against it? I've always wondered about that.


I know just as many people who vote democrat that are against it than those that vote republican. Again, people make it into this us vs them trip. IMHO , the reaon why nothin is gonna ever change or get fixed in my lifetime.


I disagree with you there. As I said, I'm against the penalty/tax as are several of my friends and if it wasn't for the penalty/tax it wouldn't be going before the Supreme Court.

 

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Peach Extraordinaire



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  posted on 3/26/2012 at 09:29 AM
quote:
quote:
If they wrote the Affordable Care Act without the individual mandate, would conservatives still be against it? I've always wondered about that.


I know just as many people who vote democrat that are against it than those that vote republican. Again, people make it into this us vs them trip. IMHO , the reaon why nothin is gonna ever change or get fixed in my lifetime.


I don't. The vast majority of moderate GOP and Dems I know are for it. I really like the provision that non profit health insurance will be made available thus essentially meaning single payer will be available. It means I can retire at 60 in 4 years and not have to work until 65 and be covered affordably before being eligible for Medicare (assuming they don't raise the age of eligibility for that like Eddie Munster Paul Ryan wants to do).

[Edited on 3/26/2012 by Peachypetewi]

 

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  posted on 3/26/2012 at 09:38 AM
quote:
If they wrote the Affordable Care Act without the individual mandate, would conservatives still be against it? I've always wondered about that.
I'd say yes in most cases. I don't think most conservatives see the Federal powers as extending into these areas. But as the article points out...

"As for respect of the democratic process, there are plenty of ordinary, perfectly constitutional ways the Obama Democrats could have reformed health care and achieved the same result. They could have raised taxes to fund national health care or to make direct cross-subsidy transfers to sick people. They chose not to avail themselves of those options because they'd be politically unpopular. The individual mandate was in that sense a deliberate evasion of the accountability the Constitution's separation of powers is meant to protect."

So other options existed, but they knew those were loosers, so they gambled on this strategy. If they win, they have effectively broadened Federal power over the individual to an almost unlimited point. Even fans of the act should be warry of that, as today those in charge may be acting in way that pleases you, but what will swings in power bring in the future?

 

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Obamacare: To insure the uninsured, we first make the insured

uninsured and then make them pay more to be insured again,

so the original uninsured can be insured for free.

 

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  posted on 3/26/2012 at 09:46 AM
IMO the Affordable Care Act did little or nothing to address the main problem -- the high cost of health care. Hence the name it was given.
 

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  posted on 3/26/2012 at 11:06 AM
quote:
IMO the Affordable Care Act did little or nothing to address the main problem -- the high cost of health care. Hence the name it was given.


I believe the main problem was the 30-40 million uninsured, which help cause the high cost.

 

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Maximum Peach



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  posted on 3/26/2012 at 11:11 AM
quote:
quote:
IMO the Affordable Care Act did little or nothing to address the main problem -- the high cost of health care. Hence the name it was given.
I believe the main problem was the 30-40 million uninsured, which help cause the high cost.
If costs were lowered, those uninsured could be covered more easily. But the act doesn't do that. The rhetoric started out with all those promises, but descended into the whole CBO scoring on the question of whether it adds to the deficit or not. The fraudulent math they used to pretzel that into balance still did nothing to reduce costs.

 

____________________
Obamacare: To insure the uninsured, we first make the insured

uninsured and then make them pay more to be insured again,

so the original uninsured can be insured for free.

 

Maximum Peach



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  posted on 3/26/2012 at 11:25 AM
Live poll at the Washington Post....

http://www.washingtonpost.com/wp-srv/politics/callouts/health-care-case/

As of posting this; it's 96% of the folks responding that they feel the law is unconstitutional.

 

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Obamacare: To insure the uninsured, we first make the insured

uninsured and then make them pay more to be insured again,

so the original uninsured can be insured for free.

 

Ultimate Peach



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  posted on 3/26/2012 at 11:32 AM
People with private health insurance, a benifit from their employers, were sold-out in this massive bill, by the dems in congress who decided to exempt themselves from obamacare.

 

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  posted on 3/26/2012 at 12:39 PM
quote:
People with private health insurance, a benifit from their employers, were sold-out in this massive bill, by the dems in congress who decided to exempt themselves from obamacare.


1 - Congress is a bunch of hypocritical sc**bags.

2 - The tying of health insurance to employment can converseley be viewed as "an entitlement" by people whose isn't. Their premiums are tax deductible to an extent; those with individual insurance don't get that benefit. Also, people in industries (construction/landscaping/restaurants/the arts) who take and leave jobs frequently can't get health insurance through their employers due to waiting periods/pre-existing conditions. It is a mess. Imagine if the only way you could insure your car was through your job?

Health care needs to be removed from it's tethering to work and either have policies available to all on an equal basis or have a national health care system with options to buy to a higher level,

[Edited on 3/26/2012 by emr]

 

Universal Peach



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  posted on 3/26/2012 at 01:08 PM
quote:
quote:
People with private health insurance, a benifit from their employers, were sold-out in this massive bill, by the dems in congress who decided to exempt themselves from obamacare.


1 - Congress is a bunch of hypocritical sc**bags.

2 - The tying of health insurance to employment can converseley be viewed as "an entitlement" by people whose isn't. They're premiums are tax deductible to an extent; those with individual insurance don't get that benefit. Also, people in industries (construction/landscaping/restaurants/the arts) who take and leave jobs frequently can't get health insurance through their employers due to waiting periods/pre-existing conditions. It is a mess. Imagine if the only way you could insure your car was through your job?

Health care needs to be removed from it's tethering to work and either have policies available to all on an equal basis or have a national health care system with options to buy to a higher level,


Absolutely........

 

Maximum Peach



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  posted on 3/26/2012 at 01:45 PM
quote:
Health care needs to be removed from it's tethering to work and either have policies available to all on an equal basis or have a national health care system with options to buy to a higher level.
I completely agree. This is the kind of change that would have been welcome, and it could have been broadly accepted had we considered doing something akin to what the Swiss do.

Their system is not govt-run, although govt plays a part in cost control and arranging help for the poor. Otherwise it's privately operated, with individuals having a vast range of choice, unconnected to their employment. Swiss citizens choose their provider just like buying anything else, therefore the customer-provider relationship is placed in the proper context.

Of course, the Swiss require everyone to have health care, so the same question of constitutionality for us remains. But their costs are a good third lower than ours, so at least that part is working.

 

____________________
Obamacare: To insure the uninsured, we first make the insured

uninsured and then make them pay more to be insured again,

so the original uninsured can be insured for free.

 

Zen Peach



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  posted on 3/26/2012 at 01:52 PM
quote:
quote:
Health care needs to be removed from it's tethering to work and either have policies available to all on an equal basis or have a national health care system with options to buy to a higher level.
I completely agree. This is the kind of change that would have been welcome, and it could have been broadly accepted had we considered doing something akin to what the Swiss do.

Their system is not govt-run, although govt plays a part in cost control and arranging help for the poor. Otherwise it's privately operated, with individuals having a vast range of choice, unconnected to their employment. Swiss citizens choose their provider just like buying anything else, therefore the customer-provider relationship is placed in the proper context.

Of course, the Swiss require everyone to have health care, so the same question of constitutionality for us remains. But their costs are a good third lower than ours, so at least that part is working.


Maybe Gina's right.

I agree with Rich.

 

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