The Biggest Threat to Obama's Health Care "Reform" - Reality - Page 47

Originally Posted by john galt

By the way he might have helped by explaining what was meant by "... To regulate Commerce ... among the several States, "

Originally Posted by ascii

The fear was that States would impose tariffs on each other and get in to trade wars etc. so the power was given to the Federal government to regulate interstate commerce and keep a level playing field.

A law intended to keep government out of commerce, keep it flowing smoothly, now used for?

Originally Posted by ascii

A law intended to keep government out of commerce, keep it flowing smoothly, now used for?

Originally Posted by Queen Nancy Pelosi

"Congress has used this authority to regulate many aspects of American life, from labor relations to education to health care to agricultural production. Since virtually every aspect of the heath care system has an effect on interstate commerce, the power of Congress to regulate health care is essentially unlimited."

....Congress can trace its constitutional authority to mandate health care coverage to the Constitution's "necessary and proper clause."

Originally Posted by BR

Now that's awesome. Sounds like any tea partier true to his or her morality should reverse course and support some form of government subsidized healthcare. This is now the true test. Do they REALLY care what the founding fathers believed? Or do they namedrop the founding fathers merely to attain a false moral high ground from which to throw stones at the rest of the population?

Vinson ruled against the overhaul on grounds that Congress exceeded its authority by requiring nearly all Americans to carry health insurance, an idea dating back to Republican proposals from the 1990s but now almost universally rejected by conservatives.

His ruling followed the same general reasoning as one last year from the federal judge in Virginia. But where the first judge's ruling would strike down the insurance requirement and leave the rest of the law in place, Vinson took it much farther, invalidating provisions that range from Medicare discounts for seniors with high prescription costs to a change that allows adult children up to age 26 to remain on their parents' coverage.

Judge Roger Vinson, in Pensacola, Fla., ruled that as a result of the unconstitutionality of the "individual mandate" that requires people to buy insurance, the entire law must be declared void.

"While the individual mandate was clearly 'necessary and essential' to the act as drafted, it is not 'necessary and essential' to health care reform in general," he continued. "Because the individual mandate is unconstitutional and not severable, the entire act must be declared void."

"Regardless of how laudable its attempts may have been to accomplish these goals in passing the act, Congress must operate within the bounds established by the Constitution.

In his decision, Judge Vinson wrote: "It would be a radical departure from existing case law to hold that Congress can regulate inactivity under the Commerce Clause." If Congress has such power, he continued, "it is not hyperbolizing to suggest that Congress could do almost anything it wanted."

Originally Posted by john galt

Nancy Pelosi must be livid.

Originally Posted by john galt

NoahJ scooped me but here's another morsel:


Those words echo the majority opinion in US v. Lopez (1994 or so).

I think his comment strikes at the heart of most reasonable objections to this onerous legislation. The Constitution grants numerous privileges to Congress, including the power to levy taxes on all sorts of activity. Then there's the Commerce Clause, the Necessary and Proper Clause... each have been cited in defense of Congress's passage of Obamacare.

However, it's also clear the Constitution places limits on the legislative branch. Government is either Constitutionally limited... or not. This case will serve to delineate just what those limits are.

http://www.nytimes.com/2011/02/01/us/01ruling.html

Conclusion:
Yes. The possession of a gun in a local school zone is not an economic activity that might, through repetition elsewhere, have a substantial effect on interstate commerce. The law is a criminal statute that has nothing to do with "commerce" or any sort of economic activity.

Admittedly, a determination whether an intrastate activity is commercial or noncommercial may in some cases result in legal uncertainty. But, s o long as Congress' authority is limited to those powers enumerated in the Constitution, and so long as those enumerated powers are interpreted as having judicially enforceable outer limits, congressional legislation under the Commerce Clause always will engender "legal uncertainty." Post, at 17. As Chief Justice Marshall stated in McCulloch v. Maryland, 4 Wheat. 316 (1819):

"The [federal] government is acknowledged by all to be one of enumerated powers. The principle, that it can exercise only the powers granted to it . . . is now universally admitted. But the question respecting the extent of the powers actually granted, is perpetually arising, and will probably continue to arise, as long as our system shall exist." Id., at 405.

See also Gibbons v. Ogden, 9 Wheat., at 195 ("The enumeration presupposes something not enumerated"). The Constitution mandates this uncertainty by withholding from Congress a plenary police power that would authorize enactment of every type of legislation. See U. S. Const., Art. I, §8. Congress has operated within this framework of legal uncertainty ever since this Court determined that it was the judiciary's duty "to say what the law is." Marbury v. Madison, 1 Cranch. 137, 177 (1803) (Marshall, C. J.). Any possible benefit from eliminating this "legal uncertainty" would be at the expense of the Constitution's system of enumerated powers.

In Jones & Laughlin Steel, 301 U. S., at 37, we held that the question of congressional power under the Commerce Clause "is necessarily one of degree." To the same effect is the concurring opinion of Justice Cardozo in Schecter Poultry:


These are not precise formulations, and in the nature of things they cannot be. But we think they point the way to a correct decision of this case. The possession of a gun in a local school zone is in no sense an economic activity that might, through repetition elsewhere, substantially affect any sort of interstate commerce. Respondent was a local student at a local school; there is no indication that he had recently moved in interstate commerce, and there is no requirement that his possession of the firearm have any concrete tie to interstate commerce.

Originally Posted by NoahJ

On to the Supreme Court I guess...
http://abcnews.go.com/Business/wireStory?id=12807237

Five South Dakota lawmakers have introduced legislation that would require any adult 21 or older to buy a firearm sufficient to provide for their ordinary self-defense.

This week, for the second time, a federal judge has struck down part or all of the health care law enacted by Congress last year. But legal experts caution against drawing any conclusions from these decisions.
In December, Federal District Court Judge Henry Hudson in Virginia struck down the section of the law requiring citizens to buy health care coverage or pay a penalty. This week, Federal District Court Judge Roger Vinson in Florida invalidated the entire law. However, two other federal judges have upheld the law.
History indicates that early court decisions are hardly predictive.........

Originally Posted by john galt


Those words echo the majority opinion in US v. Lopez (1994 or so).

The Court reasoned that if Congress could regulate something so far removed from commerce, then it could regulate anything, and since the Constitution clearly creates Congress as a body with enumerated powers, this could not be so.

Originally Posted by candidate Obama

"If a mandate was a solution we could try that [sic] to solve homelessness by mandating that everyone buy a house."

Originally Posted by FineTunes

History indicates that early court decisions are hardly predictive.........

Originally Posted by john galt

It's easy to predict. It all depends on which side of the bed Anthony Kennedy gets up that morning.

Originally Posted by MJ1970

Bill would require all S.D. citizens to buy a gun:

Many (states) had laws that required men of age to own a gun and supplies, including powder and bullets.

Originally Posted by john galt

It wouldn't be the first time:



http://www.usconstitution.net/consttop_2nd.html

Originally Posted by john galt

It's easy to predict. It all depends on which side of the bed Anthony Kennedy gets up that morning.

Will any Senate Democrat vote today with Republicans to repeal the nation's health care law?
The Tea Party Express and FreedomWorks, a group run by former House majority leader Dick Armey, call on supporters to call vulnerable Democratic senators up for re-election in 2012 and urge them to back the repeal vote. Sen. Jim DeMint, R-S.C., also seeks to put pressure on Democrats.....

Originally Posted by MJ1970

Actually, what's ironic is that such mandates including a health care mandate might pass the constitutionality test if they were at the state (not federal) level.

Originally Posted by john galt

Oh, I have no doubt of that. States have specific authority under the 10th.

Under Commerce Clause, Congress would have specific authority to mandate insurance companies sell their products across state lines too, for instance, but certain members erred in citing its authority to regulate inactivity. That's what the individual mandate amounts to.

Like so many provisions, it received no due diligence, and no attention until after it became law. Only then did National Taxpayer Advocate Nina Olson, a federal employee, explain that its giant costs would likely outweigh any new tax compliance. The requirement, it turns out, doesn't just crush businesses - it also crushes churches, charities and municipalities.

[JURIST] Virginia Attorney General Kenneth Cuccinelli [official website] on Tuesday filed a petition for a writ of certiorari [text, PDF] with the US Supreme Court [official website; JURIST news archive] asking the court to rule on the constitutionality of the health care reform law [HR 3590 text; JURIST news archive] on an expedited basis, before the US Court of Appeals for the Fourth Circuit [official website] rules on the issue. Cuccinelli announced last week [press release; JURIST report] that he was going to petition the court for an expedited review due to the far-reaching public policy implications inherent in the implementation of the legislation and the potential cost to the states as uncertainty surrounding the legislation's constitutionality remains. In December, a judge for the US District Court for the Eastern District of Virginia [official website] struck down [opinion, PDF; JURIST report] the individual mandate portion of the Patient Protection and Affordable Care Act (PPACA), but left the remainder of the bill intact. Cuccinelli is asking the court to rule on whether the lower court erred when it found that the individual mandate was a violation of Congress' powers under the Commerce Clause [Cornell LII backgrounder] of the Constitution and whether it erred in determining that the individual mandate provision of the law was severable from the remainder of the act, leaving the majority of the provision of the PPACA in place. The US Department of Justice [official website] has indicated that they believe the challenge should be heard by the court of appeals [AP report] before being considered by the Supreme Court. The court of appeals is scheduled to hear arguments in Commonwealth v. Sebelius [materials] in May.

There are currently cases in 28 states challenging the provisions of the PPACA and the lower court rulings on issues surrounding the legislation have been mixed. Earlier this month, a federal judge in Mississippi dismissed a lawsuit challenging the law [opinion, PDF; JURIST report] on the basis that the plaintiffs lacked standing because their allegations were insufficient to show "certainly impending" injury. In January, a judge for the US District Court for the Northern District of Florida [official website] struck down [opinion, PDF; JURIST report] the law as an unconstitutional overreaching of Congress' Commerce Clause power. The entire law was voided in that case, as the judge found the individual insurance mandate to be unserverable. That decision is expected to be appealed to the US Court of Appeals for the Eleventh Circuit [official website]. Earlier in January, a judge for the US District Court for the Western District of Virginia [official website] dismissed [JURIST report] a lawsuit challenging a provision of the health care reform law. In October, a federal judge in Michigan ruled [JURIST report] that the law is constitutional under the Commerce Clause as it addresses the economic effects of health care decisions, and that it does not represent an unconstitutional direct tax.

...Congress could require that people buy and consume broccoli at regular intervals, not only because the required purchases will positively impact interstate commerce, but also because people who eat healthier tend to be healthier, and are thus more productive and put less of a strain on the health care system. Similarly, because virtually no one can be divorced from the transportation market, Congress could require that everyone above a certain income threshold buy a General Motors automobile ... because those who do not buy GM cars (or those who buy foreign cars) are adversely impacting commerce...

Originally Posted by john galt

It's as if GM were going bankrupt, and the government saved it by forcing everyone to buy an Oldsmobile.

... the foregoing is not an irrelevant and fanciful "parade of horribles." Rather, these are some of the serious concerns implicated by the individual mandate that are being discussed and debated by legal scholars. For example, in the course of defending the Constitutionality of the individual mandate, and responding to the same concerns identified above, often-cited law professor and dean of the University of California Irvine School of Law Erwin Chemerinsky has opined that although "what people choose to eat well might be regarded as a "personal liberty" (and thus unregulable), "Congress could use its Commerce power to require people to buy cars."

[JURIST] The US Department of Justice (DOJ) on Thursday asked federal judge Roger Vinson to clarify his ruling to require states to enact the Patient Protection and Affordable Care Act during the pendency of the government's appeal. In the motion, the government focused on the substantial uncertainty that would be faced by people who currently enjoy benefits from portions of the law that went into effect immediately. The motion also focused on the fact that the portion of the law ruled unconstitutional, the minimum coverage mandate, is not scheduled to go into effect until 2014, meaning there would be no prejudice to states if they would be required to enact the earlier-scheduled provisions. The government additionally noted the significant number of states, including those that are parties to this suit, that have applied for funding under enacted portions of the law. The government concluded by focusing on Vinson's own words from the grant of summary judgment:


The DOJ also expressed its intent to appeal Vinson's ruling to the US Court of Appeals for the Eleventh Circuit.

Vinson granted the states' motion for summary judgment in January, finding that the minimum coverage mandate exceeded Congress' authority under the commerce clause. The health care reform law is the subject of numerous legal challenges and inconsistent rulings across the country. A Virginia appeals court is scheduled to hear challenges to two conflicting lower-court rulings in Mayone upholding the legislation and the other invalidating part of it. In December, a judge for the US District Court for the Eastern District of Virginia ruled that the individual mandate provision is unconstitutional but left the remainder of the law intact. Earlier that month, a judge for the US District Court for the Western District of Virginia dismissed a lawsuit challenging a provision of the health care reform law. In October, a federal judge in Michigan ruled that the law is constitutional under the Commerce Clause.

Injunctive relief is an "extraordinary"... and "drastic" remedy ... It is even more so when the party to be enjoined is the federal government, for there is a long-standing presumption "that officials of the Executive Branch will adhere to the law as declared by the court. As a result, the declaratory judgment is the functional equivalent of an injunction."... ("declaratory judgment is, in a context such as this where federal officers are defendants, the practical equivalent of specific relief such as an injunction ... since it must be presumed that federal officers will adhere to the law as declared by the court")

There is no reason to conclude that this presumption should not apply here. Thus, the award of declaratory relief is adequate and separate injunctive relief is not necessary.

Consistent with the concededly unique nature of the Court's judgment, defendants are not aware of any past examples of a court relying on a general presumption that the government would adhere to the legal rulings in a declaratory judgment to conclude that the government would immediately halt implementation of so many statutory provisions with respect to so many plaintiffs, and indirectly affecting so many people, while appellate review is pending.

The government's lawyers, recognizing this fundamental constitutional reality, have tried to rewrite the law so that it can withstand judicial scrutiny. They have claimed that the individual mandate is a tax, despite common sense, judicial precedent, and numerous statements to the contrary by the law's sponsors and President Obama.

They have also argued that ObamaCare does not actually impose a mandate on inactive citizens, but rather regulates how individuals will pay for their health care. As Solicitor General Neal Katyal recently put it, the mandate is "about failure to pay, not failure to buy."

This is plainly wrong. The law requires that everyone have health insurance - without regard to whether or how they buy or pay for medical services.

If ObamaCare is to be upheld, then the Supreme Court will have to abandon these precedents, along with the plain meaning of the Constitution. It will also have to concede that our federal system is in fact not one of divided authority between federal and state governments, but one in which the states merely act as Washington's administrative enforcers. There is every reason to believe the court would never entertain such a notion.

Perversely, ObamaCare both drives up the cost of insurance with mandates and rules while making it attractive for companies to dump the increasingly more expensive coverage and pay a lesser fine. There will be huge ramifications for the country's finances if more workers lose coverage than was estimated.

But what if more people are dumped into the exchange than originally estimated? Costs from the increased subsidies will explode.

On March 9, 2010, then-Speaker of the House Nancy Pelosi famously told a meeting of county officials that "we have to pass the bill so that you can find out what is in it, away from the fog of the controversy."

We are now, to our horror, finding out how harmful this measure is. More Americans are realizing that unless repealed, ObamaCare will sink America in a sea of red ink. This helps explain why the nation has turned so hard against it - and against its author whose slippery pledges so misled us.

Originally Posted by BR

State governments with newly elected Republicans slash revenues and then lay off thousands of government workers to help meet the budget shortfall. Gee, I wonder why unemployment is artificially inflated.

And where's the trickle down? The rich have had the Bush tax rates for basically 10 years now. Wall Street recovered. CEO pay went up 23% last year. Where are the jobs? The greedy fucks at the top don't care to piss a little money our way. Trickle down DOES NOT WORK. Supply side DOES NOT WORK.

And if you claim that the stimulus Obama passed doesn't work, you are destroying your own argument--the stimulus was 40% tax cuts at the Republicans' behest.