Health Care Bill Constitutionality?

[BeAChooser]

I don't believe these health care bill items are Constitutional (and I'm sure there are many more). Care to discuss this?


http://online.wsj.com/article/SB10001424052748704398304574598130440164954.html


Mr. Nelson won the concession that Congress will pay for 100% of Nebraska Medicaid expansions into perpetuity.


The Constitution gives us equal protection under the law (14th Amendment). So why are Nebraskans being singled out as special? Why will we be forced to pay for their Medicaid costs? Sorry but this BRIBE to Nelson is UNCONSTITUTIONAL. But it shows the lows to which democrats have sunk to pass their health care monstrosity.

http://www.weeklystandard.com/weblogs/TWSFP/2009/12/reid_bill_declares_future_cong_1.asp


Senator Jim DeMint (R-S.C.) pointed out some rather astounding language in the Senate health care bill during floor remarks tonight. First, he noted that there are a number of changes to Senate rules in the bill--and it's supposed to take a 2/3 vote to change the rules. And then he pointed out that the Reid bill declares on page 1020 that the Independent Medicare Advisory Board cannot be repealed by future Congresses



Where in the Constitution does it state that legislation passed by Congress cannot be repealed by future Congresses? That's NONSENSE.

And what about the "Individual Mandate". What section of the Constitution gives the Federal government the power to force individuals to buy products under threat of criminal penalty?

I think the glaring truth is these are just more examples that the Constitution doesn't matter to health care bill advocates (i.e., democrats).

:D

[Tumblehome]

What section of the Constitution gives the Federal government the power to force individuals to buy products under threat of criminal penalty?


Not sure, but aren't you already forced to buy car insurance if you drive a car?

[Francesca R]

Indeed, perhaps since emergency care is underwritten (by the insured) even for the uninsured, then failure to buy insurance can now be regarded as a violation of the rights of the insured, for which the insured are justified in extracting compensation (from the uninsured) in the form of forced insurance.

(Just trying to work it out using the libertarian toolkit)

[Bob Blaylock]

What section of the Constitution gives the Federal government the power to force individuals to buy products under threat of criminal penalty?

Not sure, but aren't you already forced to buy car insurance if you drive a car?



You can choose not to own or drive a car. If you do choose to own and/or operate a car, there are certain responsibilities that go along with it, including the requirement that you establish the ability to pay for any damage that you might cause by doing so.
The federal government does not enact nor enforce any law requiring you to have insurance to operate a car, nor does it have any authority to do so under the Constitution. This is the business of the states, not the federal government.

[Thunder]

The Constitution gives us equal protection under the law (14th Amendment). So why are Nebraskans being singled out as special? Why will we be forced to pay for their Medicaid costs? Sorry but this BRIBE to Nelson is UNCONSTITUTIONAL.

Nebraskans ARE special!!! didn't you get the memo?

Republicans do the same thing when they are in charge and try to get their pet legislation approved.

[KoihimeNakamura]

Er. 1) You can always just challenge it (Someone probabl will) and 2) Welcome to USA politics, where every party ever does this.

[Meadmaker]

I smell a rat. I don't believe that there is any provision in the bill that says Nebraska's bills will be paid and the others will not, as the Wall Street Journal implies. When we find out what the bill really says, I think we will find that this will be yet another demonstration of why the Wall Street Journal cannot be considered a credible source of news.

I am certain that Senator Nelson got some sort of special earmark, or something similar, for his state, but I am almost as certain that the WSJ is distorting what actually happened.

[WildCat]

I smell a rat. I don't believe that there is any provision in the bill that says Nebraska's bills will be paid and the others will not, as the Wall Street Journal implies. When we find out what the bill really says, I think we will find that this will be yet another demonstration of why the Wall Street Journal cannot be considered a credible source of news.

I am certain that Senator Nelson got some sort of special earmark, or something similar, for his state, but I am almost as certain that the WSJ is distorting what actually happened.
I wish it was distorted, but it's not.

The WaPo take (http://www.washingtonpost.com/wp-dyn/content/article/2009/12/19/AR2009121900797_pf.html):
Nelson also secured full and permanent federal funding for his state to extend Medicaid eligibility to everyone below 133 percent of the federal poverty level. The bill would require all states to do so, but Nebraska alone would not be required to pay a portion of the additional cost after 2016.

[Alt+F4]

I don't believe these health care bill items are Constitutional (and I'm sure there are many more). Care to discuss this?
:D

Earmarks/porkbarrelling has always been around no matter which party has had the majority in Congress. I don't recall it ever being declared unconstitutional by any court.

[WildCat]

Earmarks/porkbarrelling has always been around no matter which party has had the majority in Congress. I don't recall it ever being declared unconstitutional by any court.
True, but this goes beyond that. Nebraska is being favorably treated by a program that applies to all states.

[JoeTheJuggler]

And what about the "Individual Mandate". What section of the Constitution gives the Federal government the power to force individuals to buy products under threat of criminal penalty?

Again, if you claim the bill (assuming some version of it with the individual mandate passes into law) is unconstitutional, the burden of proof is on you to make that case, not on lawmakers to prove that it's not unconstitutional.

At any rate, IMO extending healthcare to a greater percentage of the population is certainly at least a prima facie case that this falls under Congress' authority to provide for the general welfare (Article I, Section 8).

As has been noted repeatedly, the commerce clause has been extended greatly through Supreme Court decisions over the years, too. While you might disagree with decisions made (particularly during the New Deal), it's up to you to make a case against them if you want to make your case that this bill is unconstitutional.

We've had this discussion on another thread not so long ago (though IIRC it had a misleading thread title).

[David Wong]

True, but this goes beyond that. Nebraska is being favorably treated by a program that applies to all states.

Even then, it happens all the time.

[ponderingturtle]

True, but this goes beyond that. Nebraska is being favorably treated by a program that applies to all states.

That is hardly new either, look at how much Wyoming got per capita for anti terrorism money vs say NY. That it is an unfunded mandate for everyone but nebraska is the only real difference.

[Thunder]

it unconstitutional to give money to a state to buy things that other states don't get? since when?

I'm sure Nebraska gets all sorts of corn subsidies that NY does'nt receive.

[Thunder]

True, but this goes beyond that. Nebraska is being favorably treated by a program that applies to all states.

NYC gets a lot more anti-terror funding then other cities.

[JoeTheJuggler]

Sen. Ensign is trying to make the argument that the individual "universal" mandate violates the 5th Amendment:

Sen. John Ensign, R-Nevada, has said the bill's requirement that all Americans purchase coverage is not authorized "by any of the limited enumerated powers granted to the federal government."

He also has argued the mandate violates the Fifth Amendment, which states that private property shall not "be taken for public use, without just compensation."
Linky (http://www.cnn.com/2009/POLITICS/12/23/health.care/index.html).

He's attempting to table the bill with a point of order motion based on this argument.

I predict his motion will fail.

[mhaze]

You can choose not to own or drive a car. If you do choose to own and/or operate a car, there are certain responsibilities that go along with it, including the requirement that you establish the ability to pay for any damage that you might cause by doing so.
The federal government does not enact nor enforce any law requiring you to have insurance to operate a car, nor does it have any authority to do so under the Constitution. This is the business of the states, not the federal government.

Minor detail.

The federal government does enforce a variety of laws, including requiring insurance, when you are on federal military bases and other types of federal reservations. You'll find a whole section of code regarding even how federal judges can do marriages, etc.

But that's specifically restricted in geography and scope. So this is an attempt at a rather gigantic "taking" of states rights.

Disregarding Joethe Juggler's manic droning, which does not affect the actual discussion, there is a serious discussion concerning the constitutionality of these schemes. That thugs in Congress and the White House do not care about constitutionality does not change that.

[Alt+F4]

The Constitution gives us equal protection under the law (14th Amendment). So why are Nebraskans being singled out as special?

If the 14th Amendment actually gave Americans equal protection under the law then gays would be allowed to marry. However, like straight people, Nebraskans are somehow special.

Welcome to, as a poster put it recently:
Obama: Bush III

[Meadmaker]

I wish it was distorted, but it's not.

The WaPo take (http://www.washingtonpost.com/wp-dyn/content/article/2009/12/19/AR2009121900797_pf.html):

Oh, well. Sometimes, what is too weird to believe happens to be true.

How bizarre.

To be fair, it isn't quite like I imagined it from the original description, or even from the WSJ article. Basically, the bill says that states would have to expand medicaid, and pay for part of the cost. Nebraska will get to expand medicaid, but the federal government (i.e. you and me) will pay. So, I'll pay my share of Michigan's medicaid expansion, and a portion of Nebraska's.

The reason it isn't quite like what I pictured is that it's really a case where the bill imposes an unfunded mandate on the states. Nelson said, "I'll vote for it if you remove the unfunded mandate." Reid said, "How about if we remove the unfunded mandate for Nebraska, but leave it in for everyone else?" Nelson agreed.

It's a rather absurd and stupid provision, but laws and sausages and all that.


Of course, if you want to get too hung up on partisan arguments against it, there's always the point to be made that if the Democratic leadership had only needed 51 votes instead of 60, they wouldn't have had to make that concession.

ETA: And it doesn't change the fact that the new, Murdochized, Wall Street Journal is still a piece of junk. The original link was still so filled with ranting that it was impossible to take seriously, because you would have to sift through each of the claims to figure out which ones were true, and which ones were wildly exaggerated, or taken out of context, or distorted severly. I just assume they all are until other evidence is presented.

[DDWW]

I don't believe these health care bill items are Constitutional (and I'm sure there are many more). Care to discuss this?
:D

Just these items, not the whole mess???


DDWW

[WildCat]

That is hardly new either, look at how much Wyoming got per capita for anti terrorism money vs say NY. That it is an unfunded mandate for everyone but nebraska is the only real difference.
I don't see how that's even comparable. In this case the law actually applies differently to Nebraska.

[peptoabysmal]

Not sure, but aren't you already forced to buy car insurance if you drive a car?

Auto insurance is at the State level, not Federal. You aren't forced to drive a car. You aren't forced to cover yourself, only liability to other persons or property. But, other than that, I guess Obama's argument holds up.

http://www.americanthinker.com/2009/09/obamas_elusive_auto_insurance.html

[Bob Blaylock]

If the 14th Amendment actually gave Americans equal protection under the law then gays would be allowed to marry. However, like straight people, Nebraskans are somehow special.

Welcome to, as a poster put it recently:
Obama: Bush III


A homosexual man has the same right to marry a woman as a heterosexual man. Why he would want to is another question.

If you mean he should have the right to “marry” a man, then that's just nonsense. Marriage is, by definition, a special kind of union between a man and a woman. That's marriage it has always been, and that's what it will always be. To allow a man to “marry” another man doesn't make a marriage; it only makes a foul mockery of the real thing.

[Vorticity]

To allow a man to “marry” another man doesn't make a marriage; it only makes a foul mockery of the real thing.

[off-topic]

Although I do not agree with it, I can at least grasp the linguistic argument for why the word "marriage" might not apply to two men or two women. What I don't understand is this:

Suppose we stipulate for the sake of argument that the words "marry" and "marriage" can only apply to one man and one woman, by definition. What is it about two men or two women saying they are married (or that they want the right to marry) that is necessarily "foul" or a "mockery"? It seems to me that the most you could say under these assumptions is that it is an incorrect use of language.

Were I to call a dog a cat, would you say that it was a foul mockery of the cat?

[\off-topic]

[KingMerv00]

If you mean he should have the right to “marry” a man, then that's just nonsense. Marriage is, by definition, a special kind of union between a man and a woman. That's marriage it has always been, and that's what it will always be.

To allow a man to “marry” another man doesn't make a marriage; it only makes a foul mockery of the real thing.

Actually marriages now are a foul mockery of polygamous marriages. They were here first.

[Cleon]

Marriage is, by definition, a special kind of union between a man and a woman. That's marriage it has always been, and that's what it will always be.

Uh...You're saying that the definition of marriage "has always been" and "will always be" between "a man and a woman?" Seriously? You're a freaking Mormon!

[KingMerv00]

This thread is en embodiment of my nerd pet peeve: Arguing constitutionality without citing court doctrine. Everyone with an opinion thinks they are an expert.

If you are going to claim this is unconstitutional, your best bet is to claim it is not a good faith extention of the commerce clause power.

[KingMerv00]

Uh...You're saying that the definition of marriage "has always been" and "will always be" between "a man and a woman?" Seriously? You're a freaking Mormon!

He is? Christ, I've debated the gay marriage issue with him before. Wish I had known that sooner.

[Meadmaker]

Uhh....I think this is a little bit more than "topic drift" here.

[Alt+F4]

If you mean he should have the right to “marry” a man, then that's just nonsense. Marriage is, by definition, a special kind of union between a man and a woman. That's marriage it has always been, and that's what it will always be. To allow a man to “marry” another man doesn't make a marriage; it only makes a foul mockery of the real thing.

If you personally feel that gay marriage is a foul mockery I'm sure you're doing your best to get the 14th Amendment repealed. I know the folks over at Stormfront have constant threads on how the 14th Amendment is unconstitutional. You should hook up with them if you haven't already.

Also, hate to tell you this, but legal gay marriage already exists in many places so your statement that [straight marriage] is what it always will be tells me you're probably a teen that doesn't keep up on the news.

Back to the OP, since Obama continues to disregard the 14th Amendment in regard to gay marriage, why would any believe he would take it into consideration when proposing health care legislation?

[Vorticity]

If you personally feel that gay marriage is a foul mockery I'm sure you're doing your best to get the 14th Amendment repealed. I know the folks over at Stormfront have constant threads on how the 14th Amendment is unconstitutional...

How the heck can an Amendment to the Constitution be unconstitutional? :confused:

[Alt+F4]

How the heck can an Amendment to the Constitution be unconstitutional? :confused:

The insane racists wrongly talk about ratification problems, similar to the tax nuts with the 16th Amendment.

[JoeTheJuggler]

Disregarding Joethe Juggler's manic droning, which does not affect the actual discussion, there is a serious discussion concerning the constitutionality of these schemes.

You mean where I keep asking you to make a case for why this bill is unconstitutional?

Yeah, it seems that putting the burden on those making the claim isn't part of this discussion.

Let's see, are you going to cite a chain-letter e-mail again? ;)

____
This thread is en embodiment of my nerd pet peeve: Arguing constitutionality without citing court doctrine. Everyone with an opinion thinks they are an expert.
Watch out. When I try that approach, Mhaze calls it "droning" that is irrelevant to the discussion.

If you are going to claim this is unconstitutional, your best bet is to claim it is not a good faith extention of the commerce clause power.
And if they try that approach, they'll be arguing against case law that's been around since the New Deal.

[tyr_13]

This thread is en embodiment of my nerd pet peeve: Arguing constitutionality without citing court doctrine. Everyone with an opinion thinks they are an expert.

If you are going to claim this is unconstitutional, your best bet is to claim it is not a good faith extention of the commerce clause power.

I think I can understand how you feel. Both of the law course I took (Law and Politics and Law and the Constitution) instilled the way the US legal system works. It also put ideas from specific cases (the Lemon test for example) into my head. Then some mook thinks that the freedom of religion means they can force kids to sing Jesus songs and pray during class. It must be much worse for someone like yourself who knows this stuff way, way more than most other people on the board.

It makes one's head hurt.

[kevinquinnyo]

It's called government failure.

If getting the 60 votes were a market mechanism, and the 60th person held out for a bigger piece of the pie, it would be called, "market failure," or specifically, the "holdout problem."

But if the government does it, it's okay, because "...well it happens all the time."

As long as your guy is in power it's fine, but if this happens when one of those book burning, evolution denying, bible thumping republicans is in office, it's an atrocity.

edit: trying to bring the OP back here...

[tyr_13]

It's called government failure.

If getting the 60 votes were a market mechanism, and the 60th person held out for a bigger piece of the pie, it would be called, "market failure," or specifically, the "holdout problem."

But if the government does it, it's okay, because "...well it happens all the time."

As long as your guy is in power it's fine, but if this happens when one of those book burning, evolution denying, bible thumping republicans is in office, it's an atrocity.

edit: trying to bring the OP back here...

If what happens? Bills are passed?

[jdp]

An "individual mandate" exists in Massachusetts, does anyone know if it has been successfully challenged yet? It doesn't seem to have been.

[BeAChooser]

Not sure, but aren't you already forced to buy car insurance if you drive a car?

First of all, mandatory insurance for cars is done at the state level and the requirements vary from state to state. States have the authority to pass laws on every issue except those few reserved to the federal government. And neither car insurance, or health insurance, are reserved to the federal government. Since the state has the authority to say whether you can drive or not, they can set the conditions for doing so. Furthermore, people have the choice of not driving a car. You have a choice. But democrats want to give you no choice regarding health insurance. And it is not one of the types of federal taxes permitted under Article I or the 16th Amendment ... taxes on purchases, per-capita taxes and income. There is nothing in the US constitution that gives the government to power to force someone to buy a product. Nothing. As the CBO stated back in 1994 (http://www.cnsnews.com/news/article/55910 ), "A mandate requiring all individuals to purchase health insurance would be an unprecedented form of federal action. The government has never required people to buy any good or service as a condition of lawful residence in the United States.”

[BeAChooser]

Republicans do the same thing when they are in charge and try to get their pet legislation approved.

For example?

[BeAChooser]

How about the roughly 800,000 seniors in Florida (all in 3 heavily democratic districts) who will be exempt from potential benefit cuts by private Medicare Advantage plans thanks to language added to the bill to buy Sen Bill Nelson's vote? They say it's going to cost the rest of us 3 to 5 billion dollars to give those democrats that gift. Is that Constitutional? :D

[KingMerv00]

Is that Constitutional? :D

I don't know. How about citing a *********** case instead of your own personal sense of outrage?

I am not agreeing or disagreeing with your conclusion. I'm disagreeing with your process. (By "process" I mean your practice of making conclusions via emotions.)

[KingMerv00]

It must be much worse for someone like yourself who knows this stuff way...

You have no *********** idea how annoying it is. Can you imagine arguing hurt feelings in front of the Supreme Court?

"But your honors, it's WRONG....WAAAAAAH!"

AAAARGH!

[BeAChooser]

I am not agreeing or disagreeing with your conclusion. I'm disagreeing with your process.

What conclusion? I just pointed out a fact and asked a question. A question a lot of people are now starting to ask. Many of them Constitutional scholars. :D

[The Central Scrutinizer]

I don't believe these health care bill items are Constitutional (and I'm sure there are many more). Care to discuss this?

I don't have a lot of time to research this, so I will let others answer the question.

If the Teabaggers and Ron Paul think it is unconstitutional, then it is certainly constitutional.

If more rational folks think it is unconstitutional, then we'll have to wait and see.

[The Central Scrutinizer]

What conclusion? I just pointed out a fact and asked a question. A question a lot of people are now starting to ask. Many of them Constitutional scholars. :D

Like Michael Badnarik, for example?

If he says it is unconstitutional, then you can bet every penny you have that it is constitutional.

[Redtail]

What conclusion?

Here's one...
I don't believe these health care bill items are Constitutional (and I'm sure there are many more).

[Tumblehome]

You can choose not to own or drive a car. If you do choose to own and/or operate a car, there are certain responsibilities that go along with it, including the requirement that you establish the ability to pay for any damage that you might cause by doing so.
The federal government does not enact nor enforce any law requiring you to have insurance to operate a car, nor does it have any authority to do so under the Constitution. This is the business of the states, not the federal government.



Auto insurance is at the State level, not Federal. You aren't forced to drive a car. You aren't forced to cover yourself, only liability to other persons or property. But, other than that, I guess Obama's argument holds up.

First of all, mandatory insurance for cars is done at the state level and the requirements vary from state to state. States have the authority to pass laws on every issue except those few reserved to the federal government. And neither car insurance, or health insurance, are reserved to the federal government. Since the state has the authority to say whether you can drive or not, they can set the conditions for doing so. Furthermore, people have the choice of not driving a car. You have a choice. But democrats want to give you no choice regarding health insurance. And it is not one of the types of federal taxes permitted under Article I or the 16th Amendment ... taxes on purchases, per-capita taxes and income. There is nothing in the US constitution that gives the government to power to force someone to buy a product. Nothing. As the CBO stated back in 1994 (http://www.cnsnews.com/news/article/55910 ), "A mandate requiring all individuals to purchase health insurance would be an unprecedented form of federal action. The government has never required people to buy any good or service as a condition of lawful residence in the United States.”


Just to clear up the first point, for the majority of people, going without a car isn't an option. I don't spend a good chunk of my income purchasing, insuring, operating, maintaining and repairing my car for the sheer luxury of it. It's a necessity for me, as it is for most of us. The fact that insurance is forced on us isn't the point. It's just plain necessary, and since there would invariably be some people who wouldn't get it if they had the choice, it has to be mandatory.

And since our health is consiberably more important than our transportation, why shouldn't that apply even more so to health insurance? Some people just aren't able to work at a well-paying job and afford decent health care at free market rates, not to mention legal fees when the insurance company stiffs them. All this lofty talk of ChoiceTM is meaningless to them. Under the current system, they have to go without health care; they have no choice.

I'm not American so I can't speak to the constitutional ramifications of the new bill (if it is unconstitutional, don't worry, you'll have your day in court). All I can say is that if the sanctity of state jurisdiction trumps the well-being of its people, it isn't worth it. If the states can't clean up their act, then all power to the feds.

Where I live, there was no need for intervention from the Canadian government. Saskatchewan cleaned up its own act after a long sorry history of insurance companies exploiting the low income and low education of the mostly farming population. The moment I was born, I automatically had full health insurance covered by the government (I've never paid a single premium, but I pay for it in taxes, which would be the equivalent of premiums). But that isn't socialism. Socialism is when the state owns my car, my house, my business and my doctor, and determines where I live and where to go--in other words, it owns my life. Here, the government not only lets me live my own life, but thinks highly enough of it to guarantee its health as much as medicine is able to. Your new health bill doesn't even come close to that; it's almost libertarian compared to our program. Sorry, but I have to laugh when I hear panicked cries of "Soshalizm" from you guys.

Now if you'll excuse me, I have to take my fully government-insured self and drive my forcibly-insured car to that bastion of socialist oppression, the local Wal-Mart, to buy whatever I want at market-driven prices.

Oh, the socialism, it burns!:D

[Neally]

It's just plain necessary, and since there would invariably be some people who wouldn't get it if they had the choice, it has to be mandatory.It's not a necessity, not all states require it.
And since our health is consiberably more important than our transportation, why shouldn't that apply even more so to health insurance?Because the federal government shouldn't be requiring everyone to purchase something that was previously not required to be purchased.

[ponderingturtle]

A homosexual man has the same right to marry a woman as a heterosexual man. Why he would want to is another question.

If you mean he should have the right to “marry” a man, then that's just nonsense. Marriage is, by definition, a special kind of union between a man and a woman. That's marriage it has always been, and that's what it will always be. To allow a man to “marry” another man doesn't make a marriage; it only makes a foul mockery of the real thing.

Yep just like an interracial marriage, they both had the right to marry someone of their own race, if they had stuck to it we would still have proper marriage(well except that women can own property, how can you have a real marriage and not a foul mockery of marriage if women can own property?)

The real problem with foul mockery of marriage is clearly women's rights. With out that gay marriage would make no sense after all, if it was two women who would own the property, and if it was two men, who wouldn't own the property?

[ponderingturtle]

And since our health is consiberably more important than our transportation, why shouldn't that apply even more so to health insurance? Some people just aren't able to work at a well-paying job and afford decent health care at free market rates, not to mention legal fees when the insurance company stiffs them. All this lofty talk of ChoiceTM is meaningless to them. Under the current system, they have to go without health care; they have no choice.

Of course talk of choice in health care is pretty meaningless, people take what their employer gives them. Individuals have very little choice.

[ponderingturtle]

Because the federal government shouldn't be requiring everyone to purchase something that was previously not required to be purchased.

That is really your best argument? We need to outlaw comunities buying ambulance coverage then, as there was a point when they didn't have to pay for that in their taxes so they shouldn't now. Same with fire departments.

[Meadmaker]

Going back to the OP, there are several issues of constitutionality that have been raised.

1. The different treatment of Nebraska

While it's a weird law, I would be hard pressed to come up with a constitutional argument against it. I think, maybe, someone might be able to do it. If they did, though, I think it would have to run afoul of the "I'm a federal judge and I don't like it, so I'm going to stretch an interpretation to claim that it says what I want it to say." clause of the Constitution. In other words, a conservative judicial activist may just decide that there's something wrong with this provision.

2. Legislation passed by congress that can't be repealed by future congresses.

Actually, I suspect this is more common than you would think, because what is really happening has to do with the creation of a function within the Executive branch, and then delegating authority to that branch. There's a long, and rather complicated, history of jurisprudence on issues related to that subject, and when Congress can perform a "legislative veto" of an executive branch action. I won't pretend to understand it.
Of course, this action can be repealed, but I think what is happening here is that Congress is specifying some element about how future Congresses relate to this newly created executive branch function.

3. Individual mandate

There are lots of things Congress tells me I have to do. This is one more.

4. Federal government taking powers not granted by the Constitution.

The op said it like this:
"What section of the Constitution gives the Federal government the power to force individuals to buy products under threat of criminal penalty?"

This is a variation on a very popular theme the last few decades. The basic argument is that the Constitution gave specific powers to the federal government, and if the government does anything not delineated in those specific powers, the government is acting unconstitutionally.
I understand the argument. From a philosophical perspective, I have some sympathy with the argument. However, the fact is that that debate was settled in a practical sense a long time ago. The fact is that the federal government does a heck of a lot of things that a strict reading of the constitution would say that it could not do. Furthermore, rightly or wrongly, the courts have said it's ok for them to do it. So, while you might find a law professor from the early 19th century supporting you on this one, I don't think you'll find anyone except a radio talk show host on your side in the early part of the 21st century.
If the Supreme Court were to actually apply that standard and declare things unconstitutional on the grounds that the Constitution does not specifically grant that authority to the government, huge sections of the government would have to shut down. While that might be a good thing, it seems unlikely that a sitting court will declare that most government activity has been illegal for the last century. As an acadmeic exercise, these variations on this argument make sense, but when tried as an actual, practical assertion of unconstitutionality, they are just a little bit short of kooky.
Again, you might hope for a particularly activist judge to take your side, but this seems a very, very, long shot.

So, it seems to me that assertions of unconstitutionality are not the best way to defeat this bill. I think the ballot box is a better hope for those who don't like what's in it.

[KingMerv00]

Going back to the OP, there are several issues of constitutionality that have been raised.

1. The different treatment of Nebraska

While it's a weird law, I would be hard pressed to come up with a constitutional argument against it. I think, maybe, someone might be able to do it. If they did, though, I think it would have to run afoul of the "I'm a federal judge and I don't like it, so I'm going to stretch an interpretation to claim that it says what I want it to say." clause of the Constitution. In other words, a conservative judicial activist may just decide that there's something wrong with this provision.

2. Legislation passed by congress that can't be repealed by future congresses.

Actually, I suspect this is more common than you would think, because what is really happening has to do with the creation of a function within the Executive branch, and then delegating authority to that branch. There's a long, and rather complicated, history of jurisprudence on issues related to that subject, and when Congress can perform a "legislative veto" of an executive branch action. I won't pretend to understand it.
Of course, this action can be repealed, but I think what is happening here is that Congress is specifying some element about how future Congresses relate to this newly created executive branch function.

3. Individual mandate

There are lots of things Congress tells me I have to do. This is one more.

4. Federal government taking powers not granted by the Constitution.

The op said it like this:
"What section of the Constitution gives the Federal government the power to force individuals to buy products under threat of criminal penalty?"

This is a variation on a very popular theme the last few decades. The basic argument is that the Constitution gave specific powers to the federal government, and if the government does anything not delineated in those specific powers, the government is acting unconstitutionally.
I understand the argument. From a philosophical perspective, I have some sympathy with the argument. However, the fact is that that debate was settled in a practical sense a long time ago. The fact is that the federal government does a heck of a lot of things that a strict reading of the constitution would say that it could not do. Furthermore, rightly or wrongly, the courts have said it's ok for them to do it. So, while you might find a law professor from the early 19th century supporting you on this one, I don't think you'll find anyone except a radio talk show host on your side in the early part of the 21st century.
If the Supreme Court were to actually apply that standard and declare things unconstitutional on the grounds that the Constitution does not specifically grant that authority to the government, huge sections of the government would have to shut down. While that might be a good thing, it seems unlikely that a sitting court will declare that most government activity has been illegal for the last century. As an acadmeic exercise, these variations on this argument make sense, but when tried as an actual, practical assertion of unconstitutionality, they are just a little bit short of kooky.
Again, you might hope for a particularly activist judge to take your side, but this seems a very, very, long shot.

So, it seems to me that assertions of unconstitutionality are not the best way to defeat this bill. I think the ballot box is a better hope for those who don't like what's in it.

This is pretty much what I would have said...but with more cursing since this topic really gets on my nerves.

[casebro]

Some how the phrase "without apportionment" pops into my head.

Whether that is pro or anti-Nebraska I don't know, but I think it is in the income tax amendment?...

[Neally]

That is really your best argument? We need to outlaw comunities buying ambulance coverage then, as there was a point when they didn't have to pay for that in their taxes so they shouldn't now. Same with fire departments. Is the ambulance coverage a Federal mandate? Are you saying that there is no difference between a federal tax and a federal requirement to purchase a product?

[Thunder]

a govt. issues i.d. card is a state requirement in many states. so what's the difference?

i want all Americans to have health insurance. why??? cause if they don't and go to the ER, guess who flips the freakin bill??? me

how about this? we will not require you to have health insurance, if you promise to NOT to go to the ER when you eventually get sick and need help.

[WildCat]

I don't know. How about citing a *********** case instead of your own personal sense of outrage?
So you can't make a case until a court rules? Good thing the judge in Roe v. Wade didn't demand precedent, or abortion woulod still be illegal.

Not everything has a precedent you know. You're doing the legal equivalent of the truther argument "no steel-framed skyscraper has ever collapsed due to fire before, therefore it didn't happen".

Now here we have a case where Nebraska is given an exception to laws every other state has to abide by, and in fact it is the other states which will have to pay for Nebraska's exception.

[Thunder]

is it constitutional to force American tax payers to pay for the ER bills of folks who don't have health insurance??

[JoeTheJuggler]

This is pretty much what I would have said...but with more cursing since this topic really gets on my nerves.

Ditto. Well done, Meadmaker.

[JoeTheJuggler]

So you can't make a case until a court rules? Good thing the judge in Roe v. Wade didn't demand precedent, or abortion woulod still be illegal.

The Roe v. Wade decision cited case law and statutory law. (And it was a Supreme Court decision so it was not "the judge" but rather "judges".)

Yes, if you're going to make a case, you have to cite the legal bases for your case rather than just claiming the gummint can't do it.

ETA: Here's the Roe v. Wade decision (http://womenshistory.about.com/library/etext/gov/bl_roe_a.htm). At a glance, it cites the 9th and 14th Amendments, 28 U.S.C. 1253, Samuels v. Mackall, 410 U.S. 113 & 115, Holme's now vindicated dissenting opinion in Lochner v. New York, etc. And this is just in the court's decision. I think lawyers on both sides probably cited and discussed other case law and statutory law. Roe v. Wade was not invented out of whole cloth as you seem to think.

[KingMerv00]

So you can't make a case until a court rules? Good thing the judge in Roe v. Wade didn't demand precedent, or abortion woulod still be illegal.

Not everything has a precedent you know. You're doing the legal equivalent of the truther argument "no steel-framed skyscraper has ever collapsed due to fire before, therefore it didn't happen".

Now here we have a case where Nebraska is given an exception to laws every other state has to abide by, and in fact it is the other states which will have to pay for Nebraska's exception.

You are misunderstanding my point of view. I'm not suggesting you need a perfectly matched precedent to figure out how the court will rule but you do need to at least attempt to ground it in common law if at all possible. People fail to realize that constitutional law is more about reading court opinions than reading the constitution. The OP fails to acknowledge that.

Like I said above the proper way to attack the constitutionality of the bill is to claim it is an overextention of the commerce clause power. Believe it or not, it is an argument with which I have some sympathy. On the other hand, I have zero sympathy with the lack of research when it comes to this stuff.

[KingMerv00]

Roe v. Wade was not invented out of whole cloth as you seem to think.

Absolutely.

Roe v. Wade was an exhaustive look into substantive due process (http://en.wikipedia.org/wiki/Substantive_due_process) and the history of the 14th amendment.

[BeAChooser]

If you folks want to discuss abortion, might I suggest somewhere else?

[Neally]

is it constitutional to force American tax payers to pay for the ER bills of folks who don't have health insurance??Do FEDERAL taxes pay hospitals ER bills? As far as I know the only federal hospitals are VA hospitals.

[KingMerv00]

If you folks want to discuss abortion, might I suggest somewhere else?

Roe v. Wade is just an illustration but we can get back to the topic at hand if you like: What legal theory would you use to overturn the health care bill?

[JoeTheJuggler]

KingMerv, you mentioned a couple of times that their strongest argument is that the commerce clause has been over-extended. You don't think the Congressional authority wrt to healthcare in particular can be construed to stem from the general welfare clause?

To me that seems less of a strain, although I think the broad interpretation of the commerce clause is pretty unassailable at this point anyway.

[JoeTheJuggler]

If you folks want to discuss abortion, might I suggest somewhere else?
This was to make the point that if you think there is a legal case for something (whether it be the right to have an abortion or the proposition that something about the healthcare bill is unconstitutional), you have to cite a legal basis to make that case.

You can't just say it seems unconstitutional and shift the burden to the other side to prove that it's constitutional.

[KingMerv00]

KingMerv, you mentioned a couple of times that their strongest argument is that the commerce clause has been over-extended. You don't think the Congressional authority wrt to healthcare in particular can be construed to stem from the general welfare clause?

To me that seems less of a strain, although I think the broad interpretation of the commerce clause is pretty unassailable at this point anyway.

I said the commerce clause argument was one of the better arguments, I didn't say it was a GOOD argument. :D In my opinion, the commerce clause and the general welfare clause would almost certainly mean this bill survives a constitutional challenge.

I am sympathetic to the argument only because you have to wonder what the commerce clause CAN'T be used to justify. (The federal war on drugs, civil rights laws, etc.) I personally wouldn't draw the line with this bill but sometimes I worry the commerce clause will be used as a blank check some day.

[MattusMaximus]

Nebraskans ARE special!!! didn't you get the memo?

Republicans do the same thing when they are in charge and try to get their pet legislation approved.

Yes, it's called politics :rolleyes:

[MattusMaximus]

What conclusion? I just pointed out a fact and asked a question. A question a lot of people are now starting to ask. Many of them Constitutional scholars. :D

http://forums.randi.org/imagehosting/774747dc5f01571c1.gif (http://forums.randi.org/vbimghost.php?do=displayimg&imgid=11269)

Well, I sense that this whole "challenging the constitutionality" of health care legislation will go the same route as the birther nonsense. No matter what happens, the wingnuts will go on and on and on about how it's illegal, despite being trounced in court numerous times. That, and the goobers in charge of this lunacy will be bilking their followers for a lot of money to "pay for court costs" :rolleyes:

[MattusMaximus]

Roe v. Wade is just an illustration but we can get back to the topic at hand if you like: What legal theory would you use to overturn the health care bill?

Because it's socialism and Obama's the Anti-Christ!!!11!1 :jaw-dropp

[JoeTheJuggler]

I said the commerce clause argument was one of the better arguments, I didn't say it was a GOOD argument. :D In my opinion, the commerce clause and the general welfare clause would almost certainly mean this bill survives a constitutional challenge.
De accuerdo!

I am sympathetic to the argument only because you have to wonder what the commerce clause CAN'T be used to justify. (The federal war on drugs, civil rights laws, etc.) I personally wouldn't draw the line with this bill but sometimes I worry the commerce clause will be used as a blank check some day.
Do you know whether there are any recent cases that attempted to use the commerce clause and failed? (If so, it would argue that the blank check authority isn't going to happen.)

I know the Bush administration's attempts to use security to justify a huge increase in executive branch authority has suffered some rejections.

Similarly, there's also a growing backlash against local abuse of eminent domain laws. Again, it's police powers rather than legislative authority at issue.

In a way, that's to be expected from a system where the separation of powers means that legislation doesn't happen by one person's decision. So it's less likely that something very excessive would come through Congress than that it would come from the executive branch.

Still, I would be surprised if a commerce clause justification has never been rejected (or the decision that the facts didn't support the "necessary and proper" use of it).

[KingMerv00]

Because it's socialism and Obama's the Anti-Christ!!!11!1 :jaw-dropp

The anti-Christ thing might cause church/state issues. :teacher:

[KingMerv00]

Do you know whether there are any recent cases that attempted to use the commerce clause and failed? (If so, it would argue that the blank check authority isn't going to happen.)

I know the Bush administration's attempts to use security to justify a huge increase in executive branch authority has suffered some rejections.

Similarly, there's also a growing backlash against local abuse of eminent domain laws. Again, it's police powers rather than legislative authority at issue.

In a way, that's to be expected from a system where the separation of powers means that legislation doesn't happen by one person's decision. So it's less likely that something very excessive would come through Congress than that it would come from the executive branch.

Still, I would be surprised if a commerce clause justification has never been rejected (or the decision that the facts didn't support the "necessary and proper" use of it).

The power of the commerce clause has waxed and waned a lot. It hit its zenith a little after the New Deal Era, died out, and is now making a come back. Thus is the way of recession politics. I'm not so much afraid of a single massive reform sweeping the nation as I am of a lot of little things happening.

The best example is the federal war on drugs. Most crimes are regulated on the state level but drugs were treated differently for political reasons and the feds used the commerce clause to justify nationwide enforcement. Now we can have conflicting state and federal drug laws regarding medical pot. The whole set up is a mess. Thankfully, Obama has had the sense to back off a bit.

[BeAChooser]

http://constitutionality.us/NoLimits.html "Government Without Limits"

http://www.thenewamerican.com/index.php/usnews/health-care/2252-constitutional-healthcarem "Constitutional Healthcare"

Years from now, don't ever claim we weren't warned.

[KingMerv00]

Years from now, don't ever claim we weren't warned.

Apparently it will take that long for you to tell us your legal theory for overturning the bill.

[Redtail]

http://constitutionality.us/NoLimits.html "Government Without Limits"

http://www.thenewamerican.com/index.php/usnews/health-care/2252-constitutional-healthcarem "Constitutional Healthcare"

Years from now, don't ever claim we weren't warned.

Why would we? The Black & Mexican socialist will have taken over and our plan will be complete!

[JoeTheJuggler]

Apparently it will take that long for you to tell us your legal theory for overturning the bill.

Nah. . .it'll never happen. Not even "years from now".

On the other thread on this topic, I kept asking mHaze to give a legal theory for challenging the bill*, and he offered a factcheck.org debunking of a chain letter e-mail supposedly written by a retired attorney. While it made the commerce clause argument (poorly--obviously not something that would present a serious challenge), it also repeated a bunch of other tripe including the idea that the bill introduces healthcare rationing, would provide free healthcare coverage for illegal immigrants, would result in free abortion services and would force healthcare professionals to participate in abortions.

http://forums.randi.org/showthread.php?postid=5320381#post5320381

*And mhaze says he wasn't making the claim that the bill is unconstitutional; only that there is a legitimate ongoing debate among constitutional scholars about the legitimacy of the individual mandate.

[WildCat]

The Roe v. Wade decision cited case law and statutory law. (And it was a Supreme Court decision so it was not "the judge" but rather "judges".)

Yes, if you're going to make a case, you have to cite the legal bases for your case rather than just claiming the gummint can't do it.

ETA: Here's the Roe v. Wade decision (http://womenshistory.about.com/library/etext/gov/bl_roe_a.htm). At a glance, it cites the 9th and 14th Amendments, 28 U.S.C. 1253, Samuels v. Mackall, 410 U.S. 113 & 115, Holme's now vindicated dissenting opinion in Lochner v. New York, etc. And this is just in the court's decision. I think lawyers on both sides probably cited and discussed other case law and statutory law. Roe v. Wade was not invented out of whole cloth as you seem to think.
And those against the Nebraska exsception have cited the 14th Amendment, equal protection of the laws.

[KingMerv00]

And those against the Nebraska exsception have cited the 14th Amendment, equal protection of the laws.

Could you be more specific? 14th amendment common law is particularly complex.

In any event I don't think this is a 14th amendment question because that usually applies to individual harms, not broad collective harms. Furthermore, I doubt an individual taxpayer could bring the case to court because "taxpayer standing" is not usually recognized by the Supreme Court. It MIGHT be a "tax and spend" question but the taxing and spending power of Congress is very broad.

What relevant cases on this subject has the Supreme Court heard lately?

[peptoabysmal]

Just to clear up the first point, for the majority of people, going without a car isn't an option. I don't spend a good chunk of my income purchasing, insuring, operating, maintaining and repairing my car for the sheer luxury of it. It's a necessity for me, as it is for most of us. The fact that insurance is forced on us isn't the point. It's just plain necessary, and since there would invariably be some people who wouldn't get it if they had the choice, it has to be mandatory.

And since our health is consiberably more important than our transportation, why shouldn't that apply even more so to health insurance? Some people just aren't able to work at a well-paying job and afford decent health care at free market rates, not to mention legal fees when the insurance company stiffs them. All this lofty talk of ChoiceTM is meaningless to them. Under the current system, they have to go without health care; they have no choice.

I'm not American so I can't speak to the constitutional ramifications of the new bill (if it is unconstitutional, don't worry, you'll have your day in court). All I can say is that if the sanctity of state jurisdiction trumps the well-being of its people, it isn't worth it. If the states can't clean up their act, then all power to the feds.

Where I live, there was no need for intervention from the Canadian government. Saskatchewan cleaned up its own act after a long sorry history of insurance companies exploiting the low income and low education of the mostly farming population. The moment I was born, I automatically had full health insurance covered by the government (I've never paid a single premium, but I pay for it in taxes, which would be the equivalent of premiums). But that isn't socialism. Socialism is when the state owns my car, my house, my business and my doctor, and determines where I live and where to go--in other words, it owns my life. Here, the government not only lets me live my own life, but thinks highly enough of it to guarantee its health as much as medicine is able to. Your new health bill doesn't even come close to that; it's almost libertarian compared to our program. Sorry, but I have to laugh when I hear panicked cries of "Soshalizm" from you guys.

Now if you'll excuse me, I have to take my fully government-insured self and drive my forcibly-insured car to that bastion of socialist oppression, the local Wal-Mart, to buy whatever I want at market-driven prices.

Oh, the socialism, it burns!:D

In an anecdotal way, things may be great for you, but that doesn't necessarily equate to how the US plans to implement this bill. To start with, the public option may be off the table by the end of the process*, so automatically being covered by a government plan may be a moot point. Public option is where the Dems want to go with it, but it is unknown at this point.

My comment was about Pres. Obama comparing this bill to required auto insurance. Your argument for that has nothing to do with the legal precedent set by that fact, but is rather an emotional plea to help those in need of health care. I think the Pres. is comparing apples and oranges. Consider that being forced to buy auto insurance may be unconstitutional and may be challenged as a result of this debate. I have my doubts that it is unconstitutional. The Constitution isn't set in stone and may be amended. The Clinton administration in 1994 (http://www.boston.com/news/nation/washington/articles/2009/11/02/some_doubt_constitutionality_of_a_federal_health_i nsurance_mandate/) concluded that a health insurance mandate would be "an unprecedented form of federal action."

We already have public health options for the poor and those systems are in financial trouble and reek of bureaucracy. I have trouble justifying creating a whole new system when we can't seem to manage the ones we have.

Any idea how much of your taxes goes to pay those premiums? Is it really a bargain or might you have gotten a better price and better care elsewhere in a free market?

Our health care system is not a free market, it is heavily regulated and that regulation is possibly one of the reasons our costs have skyrocketed. I'm not saying that health care needs no regulation, obviously it is an area where people need to be protected against substandard practice.

* It appears that States may be able to opt out of the Senate approved bill if there is a public option. The House and the Senate still have to work out the differences in both bills to come up with one final version.

[mhaze]

.....The Constitution isn't set in stone and may be amended. The Clinton administration in 1994 (http://www.boston.com/news/nation/washington/articles/2009/11/02/some_doubt_constitutionality_of_a_federal_health_i nsurance_mandate/) concluded that a health insurance mandate would be "an unprecedented form of federal action."
....

And that is precisely the problem - the current administration does not want to pursue the acceptable and constitutional method, of an amendment. They know they would not get it done, because the vast majority of people would not vote for it.

Therefore, sneaky and under the table approaches. Keep the people out, keep the judges out, keep the decision making in the Executive Branch.

[The Central Scrutinizer]

Therefore, sneaky and under the table approaches. Keep the people out, keep the judges out, keep the decision making in the Executive Branch.

The people were included. You see, we in the US had this thing called an "election" a little over a year ago. The people voted to make Obama the President, and to make decisions in our name.

Perhaps in your country the people aren't given a voice?

[Dr Adequate]

And that is precisely the problem - the current administration does not want to pursue the acceptable and constitutional method, of an amendment. They know they would not get it done, because the vast majority of people would not vote for it.

Therefore, sneaky and under the table approaches. Keep the people out, keep the judges out, keep the decision making in the Executive Branch. I think you mean the legislative branch, and I seem to recall that there has been extensive debate on the topic.

As for your idea that the "constitutional method" would involve an amendment ... you may keep whatever you're smoking, I don't want any.

And as for what "the people" would vote for, please round up everyone who favors the status quo, 'cos I'd like to talk to both of them.

[KingMerv00]

And that is precisely the problem - the current administration does not want to pursue the acceptable and constitutional method, of an amendment.

Are you implying that their current method is not constitutionally acceptable? If so, what legal theory are you using?

[ponderingturtle]

And that is precisely the problem - the current administration does not want to pursue the acceptable and constitutional method, of an amendment. They know they would not get it done, because the vast majority of people would not vote for it.

So you think medicare is illegal, and that the public votes for amendments to the US constitution?

Maybe you should read the constitution.

[peptoabysmal]

And that is precisely the problem - the current administration does not want to pursue the acceptable and constitutional method, of an amendment. They know they would not get it done, because the vast majority of people would not vote for it.

Therefore, sneaky and under the table approaches. Keep the people out, keep the judges out, keep the decision making in the Executive Branch.

Most attempts to amend fail. It is faster to make a bill and load it with pork to entice votes from certain members of the House and Senate. It's just politics playing out. So I agree with your assessment of "sneaky and under the table approaches."

[JoeTheJuggler]

Still no legal theory for why this bill would be unconstitutional?

[KingMerv00]

Still no legal theory for why this bill would be unconstitutional?

There was something about the 14th amendment but no mention of standard of review, precedent, or the likely outcome of those arguments in court.

Armchair stuff.

[Tumblehome]

In an anecdotal way, things may be great for you, but that doesn't necessarily equate to how the US plans to implement this bill. To start with, the public option may be off the table by the end of the process*, so automatically being covered by a government plan may be a moot point. Public option is where the Dems want to go with it, but it is unknown at this point.


I wasn't equating our medical plan to yours, just pointing out that, despite being fully government-controlled, it didn't take us down any slippery slope to socialism, which has been the loudest and most ridiculous objection to your new bill that I've heard.

My comment was about Pres. Obama comparing this bill to required auto insurance. Your argument for that has nothing to do with the legal precedent set by that fact, but is rather an emotional plea to help those in need of health care. I think the Pres. is comparing apples and oranges. Consider that being forced to buy auto insurance may be unconstitutional and may be challenged as a result of this debate. I have my doubts that it is unconstitutional. The Constitution isn't set in stone and may be amended. The Clinton administration in 1994 (http://www.boston.com/news/nation/washington/articles/2009/11/02/some_doubt_constitutionality_of_a_federal_health_i nsurance_mandate/) concluded that a health insurance mandate would be "an unprecedented form of federal action."


Actually, I brought up the auto insurance question, but thanks for mistaking me for Obama.:) Like I said before, I'm an outsider and can't comment on constitutional legality, but if it gets in the way of people's health, then maybe something's gotta change.

We already have public health options for the poor...


Why then are so many Americans without health insurance or have bare minimum coverage which does them no good when they need major care?

...and those systems are in financial trouble and reek of bureaucracy. I have trouble justifying creating a whole new system when we can't seem to manage the ones we have.


Just guessing, but maybe it's a matter of priorities. If more attention was paid to them, that might change.

Any idea how much of your taxes goes to pay those premiums?


I don't know the exact figures, but I know it's a considerable percentage. Health care takes up a large chunk of the provincial budget, and is growing. Personally, I would gladly pay even more taxes if necessary. Worry-free health care is definitely worth it.

Is it really a bargain or might you have gotten a better price and better care elsewhere in a free market?


Maybe I would get cheaper insurance privately (though I doubt it, considering we're talking about full, unlimited coverage), but that isn't the point. It isn't about just me. It's about everybody having guaranteed access to health care, including those who can't afford it normally. Forcing the poor, the majority of whom can't be faulted for their poverty, to scramble for sub-standard care strikes me as inhumane. I just happen to think that proper health care shouldn't be a matter of privelege. Some people are under the delusion that that's socialism, but like I said before, we're laughing all the way to Wal-Mart and McDonald's.

[JoeTheJuggler]

ctually, I brought up the auto insurance question, but thanks for mistaking me for Obama.:)
I was wondering about that. Thought maybe I'd missed a speech or something.

[Thunder]

Republicans insist on keeping federal funds from paying for a medical procedure, deemed consitutional by the SCOTUS.

how is this ok?

let me repeat that: REPUBLICANS INSIST ON NOT HAVING FEDERAL FUNDS PAY FOR A NON-COSMETIC, OFTEN TIMES LIFE SAVING, MEDICAL PROCEDURE.

how is this...ok????

[JoeTheJuggler]

Republicans insist on keeping federal funds from paying for a medical procedure, deemed consitutional by the SCOTUS.

how is this ok?

let me repeat that: REPUBLICANS INSIST ON NOT HAVING FEDERAL FUNDS PAY FOR A NON-COSMETIC, OFTEN TIMES LIFE SAVING, MEDICAL PROCEDURE.

how is this...ok????

I take it you're referring to the abortion language?

In fact, it's already illegal for federal funds to pay for that particular procedure. The Hyde Amendment prohibits federal dollars going to abortions paid for by Medicaid. It also applies to women receiving healthcare benefits as members of Peace Corps or the military, women in federal prisons and women who receive Indian Health Services.

For a while, there were exceptions in the event of a threat to the health of the woman and in cases of rape and incest. Those exceptions were repealed, but then re-instated.

The current law allows for abortion coverage in these cases and in the cases when the woman's life is threatened.

[INRM]

Did anyone here talk about state rights?

[Thunder]

Did anyone here talk about state rights?

did you talk about martial law yet?

[Meadmaker]

http://constitutionality.us/NoLimits.html "Government Without Limits"

http://www.thenewamerican.com/index.php/usnews/health-care/2252-constitutional-healthcarem "Constitutional Healthcare"

Years from now, don't ever claim we weren't warned.

Earlier, I noted that arguments about the unconstitutionality of much of what the federal government does today are just a little bit short of kooky.

These web sites are just slightly on the opposite side of the line.

[KingMerv00]

Did anyone here talk about state rights?

Which legal theory of states' rights are you using?

(He asks again and again and again.)

[peptoabysmal]

I wasn't equating our medical plan to yours, just pointing out that, despite being fully government-controlled, it didn't take us down any slippery slope to socialism, which has been the loudest and most ridiculous objection to your new bill that I've heard.

Actually, I brought up the auto insurance question, but thanks for mistaking me for Obama.:) Like I said before, I'm an outsider and can't comment on constitutional legality, but if it gets in the way of people's health, then maybe something's gotta change.

Why then are so many Americans without health insurance or have bare minimum coverage which does them no good when they need major care?

Just guessing, but maybe it's a matter of priorities. If more attention was paid to them, that might change.

I don't know the exact figures, but I know it's a considerable percentage. Health care takes up a large chunk of the provincial budget, and is growing. Personally, I would gladly pay even more taxes if necessary. Worry-free health care is definitely worth it.

Maybe I would get cheaper insurance privately (though I doubt it, considering we're talking about full, unlimited coverage), but that isn't the point. It isn't about just me. It's about everybody having guaranteed access to health care, including those who can't afford it normally. Forcing the poor, the majority of whom can't be faulted for their poverty, to scramble for sub-standard care strikes me as inhumane. I just happen to think that proper health care shouldn't be a matter of privelege. Some people are under the delusion that that's socialism, but like I said before, we're laughing all the way to Wal-Mart and McDonald's.

I apologize for confusing you with Obama lol. I meant that the argument was the same. Side note: I don't think a "public option" for auto insurance has ever been proposed even though we are forced to carry liability coverage.

Well, I sure hope it works out. I can't remember the last time in the US that a government plan or project finished under budget and working efficiently.

[Tumblehome]

I apologize for confusing you with Obama lol.


No apology necessary. It was an honour. :D

Well, I sure hope it works out. I can't remember the last time in the US world that a government plan or project finished under budget and working efficiently.


Fixed that for you. :) I hope it works out, too. It's a historic move that the rest of the world is following with interest.

[SezMe]

This is from BAC's second quote in the OP;

And then he pointed out that the Reid bill declares on page 1020 that the Independent Medicare Advisory Board cannot be repealed by future Congresses

How in the world is that possible? The feds (and states) repeal laws all the time.

[tyr_13]

Which legal theory of states' rights are you using?

(He asks again and again and again.)

I love it when people who can't even name, let alone explain, the three branches of US federal government throw around 'legal interpretations'.

Oh no, Congress can't repeal a power they just gave to the executive branch. Well no, really? I'm sure that's NEVER happened before.

[daenku32]

I'm waiting on the small government folks to drop their insurance, since having it is such a bad idea.

[KoihimeNakamura]

Re: BAC's claim re advisory board not being repealed

I'm betting it has provisions in it that prevent it from being repealed until a certain point in time.

[KingMerv00]

Re: BAC's claim re advisory board not being repealed

I'm betting it has provisions in it that prevent it from being repealed until a certain point in time.

At least some republicans seem to be under the impression it can be repealed:

http://www.huffingtonpost.com/2009/12/27/mcconnell-hints-that-gop_n_404264.html

[KingMerv00]

I love it when people who can't even name, let alone explain, the three branches of US federal government throw around 'legal interpretations'.

To me, it is like going into the science forum and declaring special relativity false without using math.

[FlamingMoe]

Re: BAC's claim re advisory board not being repealed

I'm betting it has provisions in it that prevent it from being repealed until a certain point in time.
No, it does not.

It does, however, make it federal law that the section is unalterable sans a three-fifths supermajority in the Senate supporting such a change. It also has some quite cryptic (even for legalese) language regarding "expedited" procedures when it comes to bills considered under that section.

The fact that the clauses regarding change or repeal of the section in question may be waived makes them less problematic. However, it does call into question exactly who is making the rules for the Senate. The Constitution clearly states each house of Congress shall have the right to make "the Rules of its Proceedings". This law would make it out of order to consider any bill in the Senate relating to this section without a three-fifths majority. This means (arguably) the Senate would not be determining the rules of its proceedings, federal statute would. Whether or not the fact the law was passed by the Senate is enough to overcome that is open to debate, but each house does pass new rules for each session of Congress.

[FlamingMoe]

Earlier, I noted that arguments about the unconstitutionality of much of what the federal government does today are just a little bit short of kooky.
How is it even close to "kooky" to argue today's federal government expands so far beyond the boundaries envisioned by the framers of the Constitution that Hubble itself would have a hard time seeing the original lines? Sure, the Supreme Court has disagreed over the course of the last 75 years, but that doesn't mean we're wrong. The USSC does not possess judicial infallibility -- Plessy v. Ferguson and Brown v. Board of Education is proof enough of that.

The USSC sticks to the idiocy of the New Deal court, and the only plausible reason I can come up with is because so much would be set upside down were some of those opinions overturned. Economic expediency and the irrational demand that someone, anyone, needed to do something, anything, trumped the Constitution in the 1930's. No further evidence of this fact is needed beyond the supreme stupidity of Home Building & Loan Association v. Blaisdell where the USSC declared that, while the Constitution explicitly prohibited the states from altering contracts, that the states could, in fact, alter contracts. The Constitution became squishier every time the Court upheld the government's latest intrusion into the market and people's liberties. The panic of the Depression changed the momentum of constitutional jurisprudence, and the inertia that interpretation has gained since is nigh unstoppable. Just imagine the turmoil that would ensue if the USSC dared to declare that we are going to return to a federal government of few and enumerated powers.

So no, it is not "kooky" at all to argue against the constitutionality of most of what the government does. And Madison would almost certainly be on our side.

[tyr_13]

How is it even close to "kooky" to argue today's federal government expands so far beyond the boundaries envisioned by the framers of the Constitution... (snip)


'Beyond the boundaries envisioned by the framers' does not equal 'Unconstitutional'.

[Meadmaker]

So no, it is not "kooky" at all to argue against the constitutionality of most of what the government does. And Madison would almost certainly be on our side.

He certainly would, but he's dead now.

I loved the line from one of those sites that said, "Unless something is done, and soon, the United States is doomed as a republic." (Quote from memory.) Yeah. Doomed. Right now. Do something soon. Go to your window and shout, "I'm mad as hell, and I can't take it anymore." Do it right now. It's important.

Sorry, but that kind of rhetoric is just kooky.

[MattusMaximus]

Still no legal theory for why this bill would be unconstitutional?

So far it seems to me that the "legal theory" being used here consists of screaming, ranting, and basically making crap up out of whole cloth in an attempt to 1) give the illusion of being relevant, and 2) keep the rightwing base whipped up into a frenzy.

You know, birther-type stuff :rolleyes:

[JoeTheJuggler]

Sure, the Supreme Court has disagreed over the course of the last 75 years, but that doesn't mean we're wrong. The USSC does not possess judicial infallibility -- Plessy v. Ferguson and Brown v. Board of Education is proof enough of that.
Very true, but these observations still do not consist of any legal theory that either of the healthcare bills is unconstitutional.

What's kooky is that people think it's enough to say that the government is too big and that means this bill is unconstitutional.

The USSC sticks to the idiocy of the New Deal court, and the only plausible reason I can come up with is because so much would be set upside down were some of those opinions overturned. Economic expediency and the irrational demand that someone, anyone, needed to do something, anything, trumped the Constitution in the 1930's. No further evidence of this fact is needed beyond the supreme stupidity of Home Building & Loan Association v. Blaisdell where the USSC declared that, while the Constitution explicitly prohibited the states from altering contracts, that the states could, in fact, alter contracts. The Constitution became squishier every time the Court upheld the government's latest intrusion into the market and people's liberties. The panic of the Depression changed the momentum of constitutional jurisprudence, and the inertia that interpretation has gained since is nigh unstoppable. Just imagine the turmoil that would ensue if the USSC dared to declare that we are going to return to a federal government of few and enumerated powers.

This is not a case for the unconstitutionality of anything about the current healthcare reform bill, but a fundamental disagreement with quite a lot of the history of case law in the U.S. And it's fine that you have that opinion, but without undoing a LOT of established law, it doesn't make a case that the healthcare reform bill is unconstitutional.

In other words, your beef is less about this bill in particular than it is a basic disagreement with the way the Commerce Clause (or whatever) has been interpreted over the years.

(I would disagree with you on this point as well, pointing again to the "general welfare" clause. The framers of the Constitution did indeed envision the federal government having a role in the general welfare of the people.)

[JoeTheJuggler]

So far it seems to me that the "legal theory" being used here consists of screaming, ranting, and basically making crap up out of whole cloth in an attempt to 1) give the illusion of being relevant, and 2) keep the rightwing base whipped up into a frenzy.

You know, birther-type stuff :rolleyes:

I would say Flaming Moe isn't doing any screaming or ranting or making stuff up.

But I also think he's not making a case for the unconstitutionality of the bills.

[JoeTheJuggler]

'Beyond the boundaries envisioned by the framers' does not equal 'Unconstitutional'.

Good point.

At any rate, I think the "general welfare" clause shows that they did in fact envision such a role for the government. If it doesn't mean Congress should deal with the current healthcare crisis, I'm not sure what it does mean.

[KingMerv00]

This is not a case for the unconstitutionality of anything about the current healthcare reform bill, but a fundamental disagreement with quite a lot of the history of case law in the U.S. And it's fine that you have that opinion, but without undoing a LOT of established law...

On a related note, where does the government get off making libel and slander illegal? It says right there in the constitution that there shall be no law restricting my freedom of speech.

Friggin' activists.

[TriskettheKid]

Which legal theory of states' rights are you using?

(He asks again and again and again.)

The Legal Theory of Somehow Government has Rights.

Or something. I don't know.

I always thought it took a special kind of reasoning to claim that a "state" has rights. I mean, the Government has granted powers, but not rights. Same with the States.

[TriskettheKid]

On a related note, where does the government get off making libel and slander illegal? It says right there in the constitution that there shall be no law restricting my freedom of speech.

Friggin' activists.

Not only that, but human sacrifice is illegal, too.

How am I supposed to freely practice my religion if I can't sacrifice a virgin to appease my volcano god?

[dudalb]

States with more political clout in Congress and the White House getting more funds for the same Federal programs then other states happens all the time. It might not be fair,but it is not unconstitutional.

[KingMerv00]

I always thought it took a special kind of reasoning to claim that a "state" has rights. I mean, the Government has granted powers, but not rights. Same with the States.

To be fair, "states' rights" is just a causal way to describe states' powers. I wouldn't read too much into it.

[TriskettheKid]

To be fair, "states' rights" is just a causal way to describe states' powers. I wouldn't read too much into it.

It can be.

I get wary once someone mentions a "violation" of "states' rights", though, for the aforementioned reasons.

[Bob Blaylock]

How is it even close to "kooky" to argue today's federal government expands so far beyond the boundaries envisioned by the framers of the Constitution…


'Beyond the boundaries envisioned by the framers' does not equal 'Unconstitutional'.


The framers intended the federal government to be very limited, and they included wording in the Constitution to this effect. I don't see how there can possibly be any argument that as far as the intended meaning of the Constitution is concerned, that the expansion of the federal government into the bloated, uncontrollable mess that it has now become is clearly a horrendous violation of the intended meaning of the Constitution. That various courts and politicians have found ways to twist and pervert the literal meaning of the words in the Constitution in order to allow these violations does nothing to address the blatant discrepancy between what has been done, and what the Constitution was clearly intended to allow.

[ponderingturtle]

The framers intended the federal government to be very limited, and they included wording in the Constitution to this effect. I don't see how there can possibly be any argument that as far as the intended meaning of the Constitution is concerned, that the expansion of the federal government into the bloated, uncontrollable mess that it has now become is clearly a horrendous violation of the intended meaning of the Constitution. That various courts and politicians have found ways to twist and pervert the literal meaning of the words in the Constitution in order to allow these violations does nothing to address the blatant discrepancy between what has been done, and what the Constitution was clearly intended to allow.

So against the FBI, CIA and all that. We need the Pinkertons back.

[KingMerv00]

The framers intended the federal government to be very limited, and they included wording in the Constitution to this effect.

The framers are dead. REALLY dead. Their opinions, while interesting, aren't binding. The world has moved on.

If the framers intended as you say, perhaps they shouldn't have written the constitution so vaguely. For example, what the hell is the "general welfare"? (To be fair, it is entirely possible they kept it vague to change with the times.)

[TriskettheKid]

The framers are dead. REALLY dead. Their opinions, while interesting, aren't important. The world has moved on.

If the framers intended as you say, perhaps they shouldn't have written the constitution so vaguely. For example, what the hell is the "general welfare"? (To be fair, it is entirely possible they kept it vague to change with the times.)

I'd actually argue that their first attempt at a "very limited" government failed MISERABLY. The Articles of Confederation were horrid, and that's why we tossed them after less than a decade.

What we got instead was the US Constitution, which most assuredly does NOT advocate a "very limited" central government.

[JoeTheJuggler]

The framers intended the federal government to be very limited, and they included wording in the Constitution to this effect.

That's simply untrue. The framers wanted the Constitution to be open-ended while it protected basic human rights (those Lockian natural rights) by limiting the powers of government.

The last clause of Article 1 Section 8 is the famous "necessary and proper" clause, which contradicts your statement:

To make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the government of the United States, or in any department or officer thereof.
---------

Speaking of "states' rights", I'm quite sure the framers of the Constitution did not envision the states keeping their own "National Guards". The last clause of Article 1 Section 10 is:
No state shall, without the consent of Congress, lay any duty of tonnage, keep troops, or ships of war in time of peace, enter into any agreement or compact with another state, or with a foreign power, or engage in war, unless actually invaded, or in such imminent danger as will not admit of delay.

For that matter, I don't think they foresaw a standing military at the national level either. (The checks and balances of war-making seems to anticipate the President having to go to Congress for a declaration of war and for appropriating funds to support a pro tem military for that war.) But luckily [ETA: or not, depending on your opinion, I suppose] the framers were foresightful enough to make pretty wide changes in interpretation possible.

[peptoabysmal]

After reading this (http://www.justice.gov/olc/1stlady.htm) I agree that the Health Care bill is constitutional.

However, that does not allay my concerns about cost versus benefit of this bill, but that's for another thread.

[Dr Adequate]

That's simply untrue. The framers wanted the Constitution to be open-ended while it protected basic human rights (those Lockian natural rights) by limiting the powers of government.

The last clause of Article 1 Section 8 is the famous "necessary and proper" clause, which contradicts your statement ... Actually, no it doesn't. On careful examination of that clause of Article 1 Section 8 according to the strict meaning assigned to it by the people who drafted it it doesn't really mean anything at all.

I'll start a thread about this after I've had a nice nap. Dr A is sleepy.

[JoeTheJuggler]

Actually, no it doesn't. On careful examination of that clause of Article 1 Section 8 according to the strict meaning assigned to it by the people who drafted it it doesn't really mean anything at all.


They just put it in there to fill out the meter?

I don't believe it, especially given the legislative history (including the rejection of the Articles of Confederation).

Here's what Madison had to say about it (http://press-pubs.uchicago.edu/founders/documents/a1_8_18s7.html):

Few parts of the Constitution have been assailed with more intemperance than this; yet on a fair investigation of it, no part can appear more compleatly invulnerable. Without the substance of this power, the whole Constitution would be a dead letter.

Read the entire link.

Madison contemplates alternatives, including copying the relevant section of the Articles of Confederation, in which case, " the new Congress would be continually exposed as their predecessors have been, to the alternative of construing the term 'expressly' with so much rigour as to disarm the government of all real authority whatever, or with so much latitude as to destroy altogether the force of the restriction."

He also considers a strict enumeration of powers, and rejects it since they would have to apply " not only to the existing state of things, but to all the possible changes which futurity may produce".

He also considers remaining silent on the issue. In that case, he says, whenever it was necessary, the government would surely find a way to authorize the powers it needed, and all the criticisms of the "necessary and proper" clause would still remain, but there would be nothing we could use to question the government's asserting more power than is proper.

At any rate, it is clear that to the people who drafted it and voted on it, the clause was not devoid of meaning. It was debated at some length, and deemed important enough to keep in.

[mhaze]

After reading this (http://www.justice.gov/olc/1stlady.htm) I agree that the Health Care bill is constitutional. ....No, you don't. You have an opinion, that the 1992/1993 bill (Hillary Health Care) was constitutional, based on an advocacy piece from that administration.

Does this transfer to an educated opinion on the current bill(s)?

Nope.

[KingMerv00]

Does this transfer to an educated opinion on the current bill(s)?

Please state your legal theory.

[Dr Adequate]

At any rate, it is clear that to the people who drafted it and voted on it, the clause was not devoid of meaning. It was debated at some length, and deemed important enough to keep in. After my nap.

[KingMerv00]

(Addressing the crowd.)

What is your legal theory?

Whenever you're ready.

No rush.

Take your time.

[Newtons Bit]

(Addressing the crowd.)

What is your legal theory?

Whenever you're ready.

No rush.

Take your time.

I think it's idealism, honestly. Those of us who still believe that the federal government should be limited in its powers, as it was for the first one hundred and fifty years, haven't faced the reality of the precedents set by Supreme Court decisions during the Great Depression. The commerce clause, as it is now widely interpreted, allows Congress over any activity so long as it has an economic impact. That's not how it always was, nor is it how the framers intended it to be. But it is what it is.

[BeAChooser]

After reading this (http://www.justice.gov/olc/1stlady.htm) I agree that the Health Care bill is constitutional.

LOL! The fact that this this (http://www.justice.gov/olc/1stlady.htm) came from the Reno and Hubble Department of Justice should be more than enough reason to give you pause as to the validity of it's arguments. You see, the Clinton DOJ under Janet Reno and Web Hubbell were more than willing to ignore the law and Constitution when it suited the agenda of their masters and their political party.

By the way ... know who is Attorney General under Obama? Another member of that Clinton DOJ.

[KingMerv00]

LOL! The fact that this this (http://www.justice.gov/olc/1stlady.htm) came from the Reno and Hubble Department of Justice should be more than enough reason to give you pause as to the validity of it's arguments. You see, the Clinton DOJ under Janet Reno and Web Hubbell were more than willing to ignore the law and Constitution when it suited the agenda of their masters and their political party.

By the way ... know who is Attorney General under Obama? Another member of that Clinton DOJ.

Please state you *********** legal theory.

[tyr_13]

The framers are dead. REALLY dead. Their opinions, while interesting, aren't binding. The world has moved on.

If the framers intended as you say, perhaps they shouldn't have written the constitution so vaguely. For example, what the hell is the "general welfare"? (To be fair, it is entirely possible they kept it vague to change with the times.)

The crazy thing is that the framers knew that their intents wouldn't keep up with time and designed mechanisms for future change. It's always confused me as to how people will argue that they didn't think things would change when they made it a key feature of our government.

I'm rereading Cant and Voltaire right now, and they have a lot of valid thoughts. I don't think that my thought should ever be limited to that however.

[tyr_13]

After reading this (http://www.justice.gov/olc/1stlady.htm) I agree that the Health Care bill is constitutional.

However, that does not allay my concerns about cost versus benefit of this bill, but that's for another thread.

Fair assessment. One can be against it without calling it unconstitutional.

[peptoabysmal]

LOL! The fact that this this (http://www.justice.gov/olc/1stlady.htm) came from the Reno and Hubble Department of Justice should be more than enough reason to give you pause as to the validity of it's arguments. You see, the Clinton DOJ under Janet Reno and Web Hubbell were more than willing to ignore the law and Constitution when it suited the agenda of their masters and their political party.
I believe this is, at best, a "circumstantial ad hominem" argument.

Person A makes claim X.
Person B asserts that A makes claim X because it is in A's interest to claim X.
Therefore claim X is false.


By the way ... know who is Attorney General under Obama? Another member of that Clinton DOJ.
Maybe I should have said "I agree that the health care bill will be adjudicated as fitting within the Constitution." I personally am against the health care bill for reasons other than the Constitution.

From the link (http://www.justice.gov/olc/1stlady.htm) I provided:
The most fundamental constitutional challenge to national health care reform is that it lies beyond the power of Congress and the President to enact. Fortunately, the Supreme Court has long since rejected the crabbed view of national legislative authority that necessarily lies behind such a challenge.

During the mid-1930s, when for a brief time the Court invalidated some aspects of the New Deal, a majority of the Justices accepted the argument that Congress lacks the power "to protect the general public interest and the health and comfort of the people. (1) That argument was predicated on an exceedingly narrow conception of the authority of the federal government to address problems of national dimension under the commerce clause of the Constitution. The Court quickly abandoned that attack on the New Deal as inconsistent with the text and structure of the Constitution and, indeed, with the Court's own precedents.(2) Noting that "there has long been recognition of the authority of Congress to obtain ... social, health or economic advantages from the exercise of constitutional powers, (3) the Court concluded that Congress's authority over "commerce among the several States" empowers the national government to address all activity, "whatever its nature ... if it exerts a substantial economic effect on interstate commerce. (4) Upholding Congress's power to regulate the sale and distribution of coal because of the impact of that industry on American economic and social life, the Court stated:

If the strategic character of this industry in our economy and the chaotic conditions which have prevailed in it do not justify legislation, it is difficult to imagine what would. To invalidate this Act we would have to deny the existence of power on the part of Congress under the commerce clause to deal directly and specifically with those forces which in its judgment should not be permitted to dislocate an important segment of our economy and to disrupt and burden interstate channels of commerce . . . . Congress under the commerce clause is not impotent to deal with what it may consider to be dire consequences of laissez-faire.(5)

The American health care industry is one of the largest and fastest growing segments of the American economy, and it has the most direct and crucial impact on the lives of all Americans. Spiralling health care costs and inequities in the provision of health care services have an immediate and massive effect on the national economy and thus upon interstate commerce. As a result Congress unquestionably possesses the power "to deal directly and specifically" with health care in order to obtain "social, health [and] economic advantages" for the American people.
Regardless who wrote this, I think it is a valid argument, referencing cases for precedent, as to why the health care bill will be accepted as Constitutional.

One of the ways Congress can get around the constitutionality of the bill is that the penalty for not having health insurance will be defined as a tax and not a fine. Sneaky?... yes. Constitutional?... yes.

I don't really care who is Attorney General. Wouldn't the final say of constitutionality be on the Supreme Court, providing it gets that far?

[JoeTheJuggler]

After my nap.

Brrrrrrrrring! (That was an alarm clock.)

I'm really curious what evidence you have that the necessary and proper clause was meaningless to the framers even though I showed that it was debated at some length and described Madison's support of it.

[KingMerv00]

Brrrrrrrrring! (That was an alarm clock.)

I'm really curious what evidence you have that the necessary and proper clause was meaningless to the framers even though I showed that it was debated at some length and described Madison's support of it.

I don't he'll be getting back to you. He's been banned for his actions in a different thread.

[JoeTheJuggler]

I don't he'll be getting back to you. He's been banned for his actions in a different thread.

Bummer.

Now I'm dying of curiosity what he meant by that.

It seems to me pretty obvious that the clause was very important and meaningful.

[BeAChooser]

During the mid-1930s, when for a brief time the Court invalidated some aspects of the New Deal, a majority of the Justices accepted the argument that Congress lacks the power "to protect the general public interest and the health and comfort of the people. (1) That argument was predicated on an exceedingly narrow conception of the authority of the federal government to address problems of national dimension under the commerce clause of the Constitution. The Court quickly abandoned that attack on the New Deal as inconsistent with the text and structure of the Constitution and, indeed, with the Court's own precedents.(2)

... snip ...

Regardless who wrote this, I think it is a valid argument,


LOL!

First of all, I think their description "an exceedingly narrow conception" is a dead giveaway as to the agenda of the Clinton DOJ lackeys who wrote this *opinion* (and yes, inconsistency on the part of those lackeys in not enforcing the law and Constitution in other clear cut circumstances is indeed reason to be skeptical about their opinion in this one). Another reason is the fact that they failed to even mention what actually transpired in order to make the Court change it's mind regarding its initial ruling on the Constitutionality of the New Deal. Do you know that history?

Citing legal precedent and the words of the framers of the Constitution, from 1933 to 1936, the Supreme Court ruled various key programs of the New Deal unconstitutional ... in particular, the National Industrial Recovery Act (NIRA), which established the Public Works Administration (PWA) and the National Recovery Administration, and the Agricultural Adjustment Act. Likewise, 11 of the 16 Alphabet Laws (which created various New Deal agencies) were declared unconstitutional. These agencies and laws greatly expanded the power of the Federal government and, in particular, the executive branch. The NIRA, for example, allowed FDR to allocate over $3 billion (as much as had been spent by the government in the previous decade) through executive orders, by-passing Congress entirely. Over and over the argument of the Supreme Court was that FDR was trying to impose the power of the federal government on state governments in an unconstitutional manner and that provisions of these laws were in excess of the congressional power under the Commerce Clause. Many of these were unanimous Court rulings.

Now what happened to change their minds? Did any new precedents come to light? No. Did the framers of the Constitution utter something new? No. Did the wording of the Constitution change? No. What happened is that following his reelection in 1937, FDR declared war on the Supreme Court.

In February, claiming that the Court was "thwarting the will of the nation", he informed his cabinet that we was sending to Congress a proposed reorganization of the federal judiciary system. That plan called for adding judges at all levels of the court system, including adding a Justice to the Supreme Court for every Justice who refused to retire after the age of 70, up to a maximum Court size of 15 Justices. Through this means, he planned to appoint enough Justices to uphold his New Deal programs regardless of what the "old men" wanted. It's called stacking the courts.

Just imagine ... in their desire to get their socialist agenda in place ... the leftists in FDR's administration were willing to subvert the Supreme Court and alter the very structure of the government our founders created (sound familiar?). Under pressure, some of the Supreme Court justices (all of them old men over 60) caved. Now maybe they did it to keep the Court from being expanded. Maybe they did it to keep themselves from being forced off the court at 70. Or perhaps the law rammed through Congress in March of 1937, which allowed Supremes to retire after 70 at full pay (six of the nine judges were already over 70), had something to do with it? In any case, the timing and suddenness of their "switch in time that saved nine" is reason to be skeptical about those citing this as proof that what Obama is trying to do now is Constitutional.

:D

[Alt+F4]

Just imagine ... in their desire to get their socialist agenda in place ... the leftists in FDR's administration were willing to subvert the Supreme Court and alter the very structure of the government our founders created (sound familiar?).

So the court-packing scheme fails but the justices cave anyway. FDR's socialist agenda moves forward and....the U.S. still didn't become a socialist nation.

[Bob Blaylock]

The crazy thing is that the framers knew that their intents wouldn't keep up with time and designed mechanisms for future change. It's always confused me as to how people will argue that they didn't think things would change when they made it a key feature of our government.


The key “mechanism for future change” is the process for amending the Constitution. If it is deemed necessary for government to act outside of the bounds of what the Constitution currently allows, the answer to to amend the Constitution to allow this new action.


The only legitimate way to allow the federal government to grow into the bloated mess that it has become would have been to amend the Constitution specifically to allow it—either by repealing the Tenth Amendment, and replacing it with text granting the federal government greater authority to claim powers not explicitly granted it; or else by adding text that outlines additional powers to be put under the federal government.

This has not been done, and until it is done, a very large part of what the federal government now does, and a very large part of what it proposes to do, it does in blatant violation of the Constitution.


One thing that the framers did not anticipate was the lengths to which government would go, and to which the people would allow government to go, in perverting the Constitution in order to claim powers that are not there.

[ponderingturtle]

The key “mechanism for future change” is the process for amending the Constitution. If it is deemed necessary for government to act outside of the bounds of what the Constitution currently allows, the answer to to amend the Constitution to allow this new action.

Bob where is your venom against the constitutionality of medicare?

[Bob Blaylock]

FDR's socialist agenda moves forward and....the U.S. still didn't become a socialist nation.


The federal government just nationalized General Motors! That's just one step, but a very major step, away from the free nation that this was supposed to be, and toward a socialist tyranny. One of very many steps that started with FDR.

It was FDR's socialist agenda, and his corrupt tactics used to forward it, that set the stage for the long collapse in which this nation has been ever since.


If not for the precedents set by FDR, we would not see a lot of the crap going on now that is. We would not see the federal government trying to take over the health care industry. We would not see a major automaker—once a great symbol of American free enterprise—turned into an agency of the government. We would not have seen three billion dollars of our money wasted on the ridiculous “Cash for Clunkers” scam.

Before FDR, our government would have known better than to try to pull such crap as this, and we, the people, would have known better than to allow it. Before FDR, we would have known to keep government in its rightful place, as our servant, and not as our master.

[KingMerv00]

We would not see a major automaker—once a great symbol of American free enterprise—

Some symbol. They went bankrupt.

[Alt+F4]

Before FDR, we would have known to keep government in its rightful place, as our servant, and not as our master.

You should read "The Jungle" and see the photographs of Jacob Riis if you want to see what America was like when the government was "in its rightful place".

[Bob Blaylock]

Bob where is your venom against the constitutionality of medicare?


I don't see how “venom” is a relevant word to use here, but it is very simple. The Constitution does not state that the federal government has the power to run such a program as Medicare, so, per the Tenth Amendment, it is unconstitutional for it to do so. If we want such a program, run by government, then it either needs to be run at the state level, and not at the federal level; or else the Constitution needs to be explicitly amended to allow it.

As it is, the Constitution is being violated, and this is one of very, very many examples of how the American people have been brainwashed not only into tolerating such a violation, but into even defending it.

[KingMerv00]

BTW thank you BAC and BB for FINALLY posting something resembling a legal theory. Hope you didn't hurt yourselves in the effort. I still think you are wrong but at least you are trying to play by the rules.

[JoeTheJuggler]

The key “mechanism for future change” is the process for amending the Constitution.

That might be the "key" for making changes that would otherwise conflict with the Constitution, but it's clear that there are provisions for Congress to pass laws that it deems necessary and proper for the general welfare that fall within its enumerated powers.

The issue, of course, is that some of you think that this bill does not fall within its enumerated powers. I would again point to the general welfare clause, the interstate commerce clause and all the case law that supports the current relatively broad interpretation of those powers.

If you have a case for the unconstitutionality of this bill, it would have to be able to undo a great deal of case law and currently accepted legislation.

I understand the position that says the SCOTUS has had it wrong for the past 50 years or more, but that's a much bigger issue than the constitutionality of this bill. In other words, I don't think there is a case for the unconstitutionality of this bill that wouldn't require the radical change of the appearance and functioning of the federal government.

[KingMerv00]

If you have a case for the unconstitutionality of this bill, it would have to be able to undo a great deal of case law and currently accepted legislation.

I don't think they have a problem with that.

[JoeTheJuggler]

I don't think they have a problem with that.

Other than having a snowball's chance in hell of achieving it--pretty much the same problem they'd have if they ever tried to bring this constitutional challenge to court.

[KingMerv00]

Other than having a snowball's chance in hell of achieving it--pretty much the same problem they'd have if they ever tried to bring this constitutional challenge to court.

All you have to do is convince the Supreme Court to overturn 70 years worth of solid precedent. Even Justice Thomas, king of the strict constructionists (http://en.wikipedia.org/wiki/Strict_constructionist), isn't ready for that.

[dudalb]

I don't see how “venom” is a relevant word to use here, but it is very simple. The Constitution does not state that the federal government has the power to run such a program as Medicare, so, per the Tenth Amendment, it is unconstitutional for it to do so. If we want such a program, run by government, then it either needs to be run at the state level, and not at the federal level; or else the Constitution needs to be explicitly amended to allow it.

As it is, the Constitution is being violated, and this is one of very, very many examples of how the American people have been brainwashed not only into tolerating such a violation, but into even defending it.

The Constitution does not state that the Federal Government has the power to run an Air Force or the FAA;therefore the Air Force and FAA are unconstitutional.
I don't know who taught you constitutional law but he needs to be fired, fast.

[KingMerv00]

BB and BAC,

Should libel laws be declared unconstitutional?

[casebro]

"One of the ways Congress can get around the constitutionality of the bill is that the penalty for not having health insurance will be defined as a tax and not a fine. Sneaky?... yes. Constitutional?"

Call it a tax, but it seems that is a 'fine' without due process ?

Any other taxes you know of that are imposed for NOT doing something?

[dudalb]

All you have to do is convince the Supreme Court to overturn 70 years worth of solid precedent. Even Justice Thomas, king of the strict constructionists (http://en.wikipedia.org/wiki/Strict_constructionist), isn't ready for that.


Bobs theory is not strict constructionism, it's just batcrap crazy.

[Newtons Bit]

BB and BAC,

Should libel laws be declared unconstitutional?

Those are all State laws.

[KingMerv00]

Those are all State laws.

I know and my point still stands. State laws may not violate the US Constitution. If we interpret the constitution as BB and BAC suggest, then libel and slander should be legal.

See the supremacy clause (http://en.wikipedia.org/wiki/Supremacy_clause) for more information.

[peptoabysmal]

LOL!

First of all, I think their description "an exceedingly narrow conception" is a dead giveaway as to the agenda of the Clinton DOJ lackeys who wrote this *opinion* (and yes, inconsistency on the part of those lackeys in not enforcing the law and Constitution in other clear cut circumstances is indeed reason to be skeptical about their opinion in this one). Another reason is the fact that they failed to even mention what actually transpired in order to make the Court change it's mind regarding its initial ruling on the Constitutionality of the New Deal. Do you know that history?

Citing legal precedent and the words of the framers of the Constitution, from 1933 to 1936, the Supreme Court ruled various key programs of the New Deal unconstitutional ... in particular, the National Industrial Recovery Act (NIRA), which established the Public Works Administration (PWA) and the National Recovery Administration, and the Agricultural Adjustment Act. Likewise, 11 of the 16 Alphabet Laws (which created various New Deal agencies) were declared unconstitutional. These agencies and laws greatly expanded the power of the Federal government and, in particular, the executive branch. The NIRA, for example, allowed FDR to allocate over $3 billion (as much as had been spent by the government in the previous decade) through executive orders, by-passing Congress entirely. Over and over the argument of the Supreme Court was that FDR was trying to impose the power of the federal government on state governments in an unconstitutional manner and that provisions of these laws were in excess of the congressional power under the Commerce Clause. Many of these were unanimous Court rulings.

Now what happened to change their minds? Did any new precedents come to light? No. Did the framers of the Constitution utter something new? No. Did the wording of the Constitution change? No. What happened is that following his reelection in 1937, FDR declared war on the Supreme Court.

In February, claiming that the Court was "thwarting the will of the nation", he informed his cabinet that we was sending to Congress a proposed reorganization of the federal judiciary system. That plan called for adding judges at all levels of the court system, including adding a Justice to the Supreme Court for every Justice who refused to retire after the age of 70, up to a maximum Court size of 15 Justices. Through this means, he planned to appoint enough Justices to uphold his New Deal programs regardless of what the "old men" wanted. It's called stacking the courts.

Just imagine ... in their desire to get their socialist agenda in place ... the leftists in FDR's administration were willing to subvert the Supreme Court and alter the very structure of the government our founders created (sound familiar?). Under pressure, some of the Supreme Court justices (all of them old men over 60) caved. Now maybe they did it to keep the Court from being expanded. Maybe they did it to keep themselves from being forced off the court at 70. Or perhaps the law rammed through Congress in March of 1937, which allowed Supremes to retire after 70 at full pay (six of the nine judges were already over 70), had something to do with it? In any case, the timing and suddenness of their "switch in time that saved nine" is reason to be skeptical about those citing this as proof that what Obama is trying to do now is Constitutional.

:D

I agree with much of what you say. FDR had huge political capital when he first took office and much of what he did in his first 100 days was repealed or changed. FDR was re-elected in 1936 btw.

He did attempt to stack the courts, yes, but that has little bearing on the fact that Congress does have the constitutional right to create new programs and tax the heck out of us for them. As long as they call it a tax, I think they will get it through. There might be an issue with the deals made with certain states: "The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States;"

Can you cite any program or tax that has been determined to exceed Congress' power in the last, say 50 years?

[BeAChooser]

FDR was re-elected in 1936 btw.

Yes, but he took office in 1937.

He did attempt to stack the courts, yes, but that has little bearing on the fact that Congress does have the constitutional right to create new programs and tax the heck out of us for them.

You start by saying you believe Congress has the constitutional right to nationalize health care because FDR did something just as radical in the 1930s and cite a couple of Clinton Lackeys whose opinion was that what FDR did was constitutional simply because the courts of the time said it was constitutional. In response, I point out that the reason the courts said it was constitutional at the time (after first and unanimously saying it wasn't) is that FDR pressured them to do it by threatening to force the Justices to retire and/or stack the Court so that their votes effectively wouldn't matter. And now you say that has no bearing and simply claim (without evidence) that Congress has the right to create (any) new program it wants and tax the heck out of us (to whatever extent) to fund it? LOL!

Can you cite any program or tax that has been determined to exceed Congress' power in the last, say 50 years?

What does that have to do with anything? Just because the country went astray back in the 30's and allowed the Federal government to start inexorably acquiring more and more power to the detriment of states and individuals, doesn't mean that's what the framers of the Constitution intended or that Big Government is good for the country. All you are now suggesting is that one wrong justifies a second wrong.

You are effectively giving cart blanche to those who would make the Federal government as powerful and intrusive as those in power wish it to be ... states and individual be damned. Congratulations ... you've just made the Constitution a document that's not worth the paper it's printed on and formed the basis for just the sort of tyranny our founding fathers fought.

[tyr_13]

I apologize peptoabysmal, it seems BAC is going to focus on you for some reason, and ignore the well reasoned positions of others to focus on your well reasoned position.

I am deeply sorry. :)

[peptoabysmal]

Yes, but he took office in 1937.
You start by saying you believe Congress has the constitutional right to nationalize health care because FDR did something just as radical in the 1930s and cite a couple of Clinton Lackeys whose opinion was that what FDR did was constitutional simply because the courts of the time said it was constitutional. In response, I point out that the reason the courts said it was constitutional at the time (after first and unanimously saying it wasn't) is that FDR pressured them to do it by threatening to force the Justices to retire and/or stack the Court so that their votes effectively wouldn't matter. And now you say that has no bearing and simply claim (without evidence) that Congress has the right to create (any) new program it wants and tax the heck out of us (to whatever extent) to fund it? LOL!
This is what I *did* say: "He did attempt to stack the courts, yes, but that has little bearing on the fact that Congress does have the constitutional right to create new programs and tax the heck out of us for them." See Article 1 section 8 of the Constitution and the Necessary and Proper Clause and, of course, the Commerce Clause for evidence.

The "Clinton Lackeys" are with the DOJ and likely those same arguments and cases will be cited if it ever gets before the Supreme Court. My unqualified opinion is that those arguments will hold.


What does that have to do with anything? Just because the country went astray back in the 30's and allowed the Federal government to start inexorably acquiring more and more power to the detriment of states and individuals, doesn't mean that's what the framers of the Constitution intended or that Big Government is good for the country. All you are now suggesting is that one wrong justifies a second wrong.

I am not arguing the morals or the right /wrong of it, merely saying that I believe it will be upheld as Constitutional.


You are effectively giving cart blanche to those who would make the Federal government as powerful and intrusive as those in power wish it to be ... states and individual be damned. Congratulations ... you've just made the Constitution a document that's not worth the paper it's printed on and formed the basis for just the sort of tyranny our founding fathers fought.
Slippery slope, ain't it?

I think we are having a violent agreement.
I don't like this bill either. :D

[peptoabysmal]

I apologize peptoabysmal, it seems BAC is going to focus on you for some reason, and ignore the well reasoned positions of others to focus on your well reasoned position.

I am deeply sorry. :)

No need to feel sorry. I come here to have my assertions challenged.

[BeAChooser]

See Article 1 section 8 of the Constitution and the Necessary and Proper Clause and, of course, the Commerce Clause for evidence.

LOL! Now you are citing the same articles that the Supreme Court cited when it originally ruled FDR's New Deal programs and agencies unconstitutional. :D

I am not arguing the morals or the right /wrong of it, merely saying that I believe it will be upheld as Constitutional.

On what grounds? That no program or tax has been determined to exceed Congress' power in the last 50 years? Not that I bothered to check.

[Bob Blaylock]

That might be the "key" for making changes that would otherwise conflict with the Constitution, but it's clear that there are provisions for Congress to pass laws that it deems necessary and proper for the general welfare that fall within its enumerated powers.

The issue, of course, is that some of you think that this bill does not fall within its enumerated powers. I would again point to the general welfare clause, the interstate commerce clause and all the case law that supports the current relatively broad interpretation of those powers.


Up until FDR introduced his own brand of corruption into the system, there would have been no question. Consider, for example, that in pre-FDR times, when we wanted to ban alcohol at the federal level, there was no question that the federal government did not have any such power, and it was clearly understood that the only legitimate way to do it was to amend the Constitution in order to give it that power; hence the Eighteenth Amendment. Contrast this to the ease with which the federal government now carries out policies against other drugs, even in open defiance of the authority of states to pass their own laws regarding what is or is not legal in that category.

[Bob Blaylock]

The Constitution does not state that the Federal Government has the power to run an Air Force or the FAA;therefore the Air Force and FAA are unconstitutional.
I don't know who taught you constitutional law but he needs to be fired, fast.


National defense is a duty specifically delegated to the federal government. It's not clear to me that the Constitution has much to say about which specific form the organizations must take to carry out this duty.

As for the FAA, I would agree as far as any intrastate flights are concerned. Any flight which begins, ends, and is completely contained within the boundaries of one state is none of the federal government's business. But air travel is very often across state lines, and even across national lines, which puts it in the federal jurisdiction, per the commerce clause.

[Bob Blaylock]

Bobs theory is not strict constructionism, it's just batcrap crazy.


If that is so, then this nation was founded by men who were “batcrap crazy”, and who wrote a generous amount of “batcrap craziness” into its Constitution; and anyone who agrees with this Constitution, and with the principles upon which it is based, is “batcrap crazy”.

If this is to be the definition of “batcrap crazy”, then I will proudly describe myself as such.

[Bob Blaylock]

…Congress does have the constitutional right to create new programs and tax the heck out of us for them.


If this is so—to the degree that you claim—then the Tenth Amendment means nothing.

[KingMerv00]

Libel laws...constitutional or not BB?

[Alt+F4]

Up until FDR introduced his own brand of corruption into the system, there would have been no question. Consider, for example, that in pre-FDR times, when we wanted to ban alcohol at the federal level, there was no question that the federal government did not have any such power, and it was clearly understood that the only legitimate way to do it was to amend the Constitution in order to give it that power; hence the Eighteenth Amendment. Contrast this to the ease with which the federal government now carries out policies against other drugs, even in open defiance of the authority of states to pass their own laws regarding what is or is not legal in that category.

Wow, I can't believe that someone would use the 18th Amendment to try and prove how great the Constitution works.

Anyway, the federal government was banning, regulating and taxing drugs without Constitutional Amendments long before FDR became President. Check out the Pure Food and Drug Act of 1906 and the Harrison Narcotics Tax of 1914.

[FlamingMoe]

Can you cite any program or tax that has been determined to exceed Congress' power in the last, say 50 years?
Under just the commerce clause we have the Gun Free School Zones Act (held to exceed Congress' commerce clause authority by United States v. Lopez) and parts of the Violence Against Women Act (held unconsitutional on equal protection and commerce clause grounds by United States v. Morrison).

[Newtons Bit]

I know and my point still stands. State laws may not violate the US Constitution. If we interpret the constitution as BB and BAC suggest, then libel and slander should be legal.

See the supremacy clause (http://en.wikipedia.org/wiki/Supremacy_clause) for more information.

The Federal Constitution does not apply to State law, with the exception of what the 14th amendment has incorporated upon the States. This, as I understand it, is only privileges and immunities. The Necessary and Proper clause as well as the inter-state Commerce clause are items that are not incorporated.

[drkitten]

National defense is a duty specifically delegated to the federal government. It's not clear to me that the Constitution has much to say about which specific form the organizations must take to carry out this duty.

This says much about your unfamiliarity with the Constitution, I'm afraid. The Army and Navy are mentioned by name as the only forms of national defense authorize (and even then, with restrictions).

Article I, section 8:

The Congress shall have power ...

To raise and support armies, but no appropriation of money to that use shall be for a longer term than two years;

To provide and maintain a navy;

To make rules for the government and regulation of the land and naval forces;

Nothing in there provides for air defense.

Similarly, article II, section 2, provides that

The President shall be commander in chief of the Army and Navy of the United States,

Again, with no provision for air defense.

[Alt+F4]

Again, with no provision for air defense.

I know, but I like the Air Force and the Coast Guard!

[peptoabysmal]

LOL! Now you are citing the same articles that the Supreme Court cited when it originally ruled FDR's New Deal programs and agencies unconstitutional. :D
That's the thing about the Constitution and the Supreme Court, it is up to the Supreme Court to interpret the Constitution. Are you saying that the health care bill is exactly the same case as the new deal programs? My limited understanding of why the New Deal programs were nullified was that they delegated legislative power to create more laws. Does this heath care bill do that?


On what grounds? That no program or tax has been determined to exceed Congress' power in the last 50 years? Not that I bothered to check.
Specifically that Congress' power to create programs or raise taxes has not been challenged. I'm not saying everything that Congress does goes unchallenged, for example the latest move by Congress to deny funding to ACORN was ruled unconstitutional.

Let me take another approach with this. Forgive me if someone else has already done this in this thread. Let's say that I feel wronged by the health care bill and get myself an attorney. What is going to be the damage I am claiming? That the government raised my taxes? That is silly and would be dismissed instantly as the government can do that. How about that I was forced to buy health insurance? Well, there is nothing in this bill that forces me to buy insurance. I would pay higher taxes as the penalty for not buying health insurance, but I would not be put in prison. That works to about the same thing as opting not to put my money in a 401k.

[Alt+F4]

This says much about your unfamiliarity with the Constitution, I'm afraid. The Army and Navy are mentioned by name as the only forms of national defense authorize (and even then, with restrictions).

Indeed. This is where the strict constructionalists usually pull out clause 1, the "provide for the common defense and general welfare" part to justify creation of the Air Force. Well if it was ok for Congress to set up the Air Force if it's important for common defense, then Congress can establish other national institutions if they are important for the general welfare.

Such as national health care.

[JoeTheJuggler]

Up until FDR introduced his own brand of corruption into the system, there would have been no question.

So? Up until Lincoln issued the emancipation proclamation, slavery was legal in some places in the U.S.

But this is the waning moments of 2009.

Do you think there is a viable case for the unconstitutionality of this health insurance reform bill today?

[KingMerv00]

The Federal Constitution does not apply to State law, with the exception of what the 14th amendment has incorporated upon the States.

I know this too.

I am discussing libel and slander. The free speech clause has been incorporated via the 14th amendment since Gitlow (http://en.wikipedia.org/wiki/Gitlow_v._New_York).

The Necessary and Proper clause as well as the inter-state Commerce clause are items that are not incorporated.

For the moment, I'm off on a different but closely related topic.I wasn't discussing the Commerce Clause with BB. I'm discussing BB's very strict contructionism.

I want to see how deep his rabbit hole goes.

[Newtons Bit]

I wasn't discussing the Commerce Clause with BB. I'm discussing BB's strict contructionism.

:confused:

As I understand it, constructionism(sp???) doesn't put a limit on State Powers. And since libel laws are State Laws... well, I'm sure you get why I'm confused.

[KingMerv00]

:confused:

As I understand it, constructionism(sp???) doesn't put a limit on State Powers. And since libel laws are State Laws... well, I'm sure you get why I'm confused.

I guess I haven't made my point clear so let me try again:

1) Strict constructionism is the reading of the constitution in a very literal light. BB seems to be a fan of this.

2) The first amendment can overturn state law.

3) The first amendment says there shall be "no law ... abridging the freedom of speech".

4) "No law" means "no law". If BB is to remain consistent in his literal interpretation, he would have to say that libel laws are a unfair restriction on freedom of speech.


Edit: I am aware BB could complain about #2. I want to see if he will.

[Newtons Bit]

I guess I haven't made my point clear so let me try again:

1) Strict constructionism is the reading of the constitution in a very literal light. BB seems to be a fan of this.

2) The first amendment can overturn state law.

3) The first amendment says there shall be "no law ... abridging the freedom of speech".

4) "No law" means "no law". If BB is to remain consistent in his literal interpretation, he would have to say that libel laws are a unfair restriction on freedom of speech.


Edit: I am aware BB could complain about #2. I want to see if he will.

Yes, however you need the 14th amendment to incorporate that to the States as the 1st amendment states that, "Congress shall pass no law..." And then it starts getting REALLY hazy from there.

The Supreme Courts, until recently, have quite frequently found ways of allowing Congress to subvert the 1st amendment (the various sedition acts come to mind). What I find interesting is that people on both side of the aisle encourage a fairly rigid reading and interpretation of the 1st amendment. No one wants to see that particular limit on government powers to be eroded away like many other limits have been over the years.

[dann]

And what about the "Individual Mandate". What section of the Constitution gives the Federal government the power to force individuals to buy products under threat of criminal penalty?

You can hear the answers to the following questions at a lecture on Sunday, Jan 3 (http://www.ruthlesscriticism.com), in California:
Why, right in the middle of the free market economy, is healthcare such a thoroughly governmental affair?
What does the state take care of when it takes care of the “health of the nation” and why?
Why is healthcare always considered too expensive and in constant need of reform?
But you probably will not like the answers.

[KingMerv00]

Yes, however you need the 14th amendment to incorporate that to the States as the 1st amendment states that, "Congress shall pass no law..." And then it starts getting REALLY hazy from there.

Stop answering my questions to BB! I want to see what HE objects to. :D

Unless you consider yourself a constitutional literalist...in which case, I can talk to you instead.

[Newtons Bit]

Stop answering my questions to BB! I want to see what HE objects to. :D

Unless you consider yourself a constitutional literalist...in which case, I can talk to you instead.

Sorry! :o I'm not trying to ruin your argument.

I am someone who feels that the Constitution should be taken rather literally. However I also understand that the Supreme Court does not share that philosophy and the majority of the country has moved away from the concept of a limited Federal Government.

[KingMerv00]

Sorry! :o I'm not trying to ruin your argument.

I am someone who feels that the Constitution should be taken rather literally. However I also understand that the Supreme Court does not share that philosophy and the majority of the country has moved away from the concept of a limited Federal Government.

Do you think the Bill of Rights (or parts of it at least) should apply to the states?

For example, if a state passed a law that instituted the death penalty for teaching evolution, would you strike it down if you were the judge? (Assuming of course it didn't violate the state constitution.)

[Newtons Bit]

Do you think the Bill of Rights (or parts of it at least) should apply to the states?

For example, if a state passed a law that instituted the death penalty for teaching evolution, would you strike it down if you were the judge? (Assuming of course it didn't violate the state constitution.)

Only if it were to be found to violate the 14th amendment, which if you're not aware, applies most of the protections of the Bill of Rights to the States in a fairly vague way.

If the teacher was a public employee and was teaching a subject matter prohibited by the State in the classroom then it is at the State's particular discretion for punishing people for wasting the State's time and resources. Execution is a bit extreme for something like that but I don't know of anything off-hand that would prohibit it.

Now if this was a non-public employee teaching in a private setting, it's a completely different matter. There are all manner of protections on that: freedom of speech, freedom of religion, right to assemble (hey we're still in the 1st amendment!).

[KingMerv00]

Only if it were to be found to violate the 14th amendment, which if you're not aware, applies most of the protections of the Bill of Rights to the States in a fairly vague way.

If the teacher was a public employee and was teaching a subject matter prohibited by the State in the classroom then it is at the State's particular discretion for punishing people for wasting the State's time and resources. Execution is a bit extreme for something like that but I don't know of anything off-hand that would prohibit it.

Now if this was a non-public employee teaching in a private setting, it's a completely different matter. There are all manner of protections on that: freedom of speech, freedom of religion, right to assemble (hey we're still in the 1st amendment!).

I don't think I get it. A public employee could be punished but private employee could not? Where does it say that in the 14th amendment?

I suppose I'll admit this is also an issue of pragmatism vs. idealism. I wouldn't want to live in a country where states have the power to ignore fundamental rights. Strict constructionism sounds good on paper but leads to things like Jim Crow.

[DDWW]

Using whatever criteria congress and the president used to constitutionally justify passing this health control/reform bill:

What exactly cannot be controlled/reformed/banned?


DDWW:confused:

[tyr_13]

Anything not clearly related to the general welfare.

[DDWW]

Anything not clearly related to the general welfare.

Banning guns?

Banning religions?

Banning some talk radio hosts?

Etc. Etc. Etc.

All could be justified as relating to the general welfare.

[drkitten]

Using whatever criteria congress and the president used to constitutionally justify passing this health control/reform bill:

What exactly cannot be controlled/reformed/banned?

Well, obviously anything not related to the enumerated power of Congress cannot be regulated -- but "general welfare" is one of those powers. It's not clear that a federal law banning painting your house fairy-pink would qualify as part of the "general welfare." Legally speaking, if there is no "rational basis" for a government action, the courts will strike it down. So the burden of proof would be on the government to explain to the courts' satisfaction how house color restrictions promote the general welfare.

Similarly, anything that exceeds the other restrictions placed on Congress through the Bill of Rights cannot be regulated. Even if we accept that house color generally can have an effect on the "general welfare," exceptions would need to be carved out for those of a particular religion that demanded house-painting of a particular color/style. (Some varieties of Islam would qualify.) This is because the Constitution, and the first amendment in particular, trump "mere" law. Again, the state would need to explain why this restriction does not unduly restrict the local Imam's ability to exercise his religion freely, and if the court is not convinced, the court will strike this measure down.

[Newtons Bit]

I don't think I get it. A public employee could be punished but private employee could not? Where does it say that in the 14th amendment?

I stated that a State can punish one of its employees for wasting resources by teaching an unapproved topic in a classroom. Outside of that setting, I can't see your hypothetical as being constitutional.

I suppose I'll admit this is also an issue of pragmatism vs. idealism. I wouldn't want to live in a country where states have the power to ignore fundamental rights. Strict constructionism sounds good on paper but leads to things like Jim Crow.

Which is why the 14th amendment was written in the first place. Before then, the Bill of Rights did not apply to the States, only to the Federal government.

I think you need to read up on it. (http://en.wikipedia.org/wiki/Fourteenth_Amendment_to_the_United_States_Constitu tion)

Amending the Constitution is the appropriate way to change the powers of the Federal Government, not using sort of vague clauses which, when written, did not intend to grant such powers.

[drkitten]

Amending the Constitution is the appropriate way to change the powers of the Federal Government, not using sort of vague clauses which, when written, did not intend to grant such powers.


And thus you support the immediate disbanding of the Air Force until the appropriate amendments pass to make it explicit that the "common defense" includes airspace defense as well?

Why is vagueness about "common defense" acceptable, while vagueness about "general welfare" isn't?

[Newtons Bit]

And thus you support the immediate disbanding of the Air Force until the appropriate amendments pass to make it explicit that the "common defense" includes airspace defense as well?

No.

Why is vagueness about "common defense" acceptable, while vagueness about "general welfare" isn't?

I don't know. Why is it?

[drkitten]

I don't know. Why is it?

I submit that they are both acceptable, and that the establishment of a national health care system to promote the "general welfare" is as legitimate a use of federal power as the establishment of a national air force to provide for the "common defense."

The commerce clause doesn't even need to enter into it. Just as the framers did not foresee airspace control being an important part of "defence" (which is reasonable, since the military use of air technology didn't begin until the mid-19th century and wasn't widespread until the mid-20th), so the framers didn't foresee health insurance being an important part of "general welfare." And for the same reason -- health insurance wasn't invented until the middle of the 19th century and didn't become widespread until the mid-20th.

The founders did, however, foresee a need for the government to be responsive to changing conditions, which is why they put the "necessary and proper" clause into the constitution. If it is now "necessary" for health insurance to be part of the "general welfare," Congress has the authority to create any proper regulations as it sees fit.

[DDWW]

This is because the Constitution, and the first amendment in particular, trump "mere" law. Again, the state would need to explain why this restriction does not unduly restrict the local Imam's ability to exercise his religion freely, and if the court is not convinced, the court will strike this measure down.


The people in power now are saying that the General welfare provision trumps the Tenth Amendment as there are no powers specifically delegated to the United States for Universal Health Care.

The people next in power can trump any other amendment as long as they get the courts to agree that it is for the “General Welfare.”

That is why we have rule books.

That is why football referees cannot change the rules on the field for the general welfare of the fans.

[KingMerv00]

I stated that a State can punish one of its employees for wasting resources by teaching an unapproved topic in a classroom. Outside of that setting, I can't see your hypothetical as being constitutional.



Which is why the 14th amendment was written in the first place. Before then, the Bill of Rights did not apply to the States, only to the Federal government.

I think you need to read up on it. (http://en.wikipedia.org/wiki/Fourteenth_Amendment_to_the_United_States_Constitu tion)

No thanks. I know it well enough. I just think I'm misunderstanding your position. You think the 14th amendment DOES incorporate the bill of rights then, yes?

Amending the Constitution is the appropriate way to change the powers of the Federal Government, not using sort of vague clauses which, when written, did not intend to grant such powers.

So ignore the clause you don't like because you think they are too vague?

[drkitten]

The people in power now are saying that the General welfare provision trumps the Tenth Amendment as there are no powers specifically delegated to the United States for Universal Health Care.

No, that's not what they're saying. They're saying that providing for the general welfare is a power specifically delegated to the United States.

And they're right. Article I, clause 8: "The Congress shall have Power ... to provide for the common Defence and general Welfare of the United States"

[JoeTheJuggler]

Banning guns?

Banning religions?

Banning some talk radio hosts?

Etc. Etc. Etc.

All could be justified as relating to the general welfare.

Except you'd run into conflicts with the first couple of Amendments. . .not to mention the "necessary and proper" clause.

I don't think you could ever justify banning guns, religions or some talk radio hosts (whatever that means) using Article 1 Section 8.

[Newtons Bit]

No thanks. I know it well enough. I just think I'm misunderstanding your position. You think the 14th amendment DOES incorporate the bill of rights then, yes?

It does. Or at least it does in a form. I think the specific language is "privileges and immunities". Which is incredibly vague and the definition of which has been modified over the past 150 years many times.

So ignore the clause you don't like because you think they are too vague?

Actually: use the clause based on the original meaning, not on what you can interpret it based on todays slightly different language. Otherwise, one should try to amend the constitution and let the electorate decide if the government should be granted that additional power.

This is, again, idealism. I'm well aware that it is not how the current system actually works.

[KingMerv00]

It does. Or at least it does in a form. I think the specific language is "privileges and immunities". Which is incredibly vague and the definition of which has been modified over the past 150 years many times.

So which "clear" definition of "privileges and immunities" do we use?

Actually: use the clause based on the original meaning, not on what you can interpret it based on todays slightly different language. Otherwise, one should try to amend the constitution and let the electorate decide if the government should be granted that additional power.

I think you are putting objectivism where there is none. The language is vague. If the drafters of the amendment wanted a specific outcome, they should have put in specific language. (i.e. "This amendment binds all states in the union to abide by the Bill of Rights.") They have to live with their own failure.

This is, again, idealism. I'm well aware that it is not how the current system actually works.

I'm clear on that. It is what you want, not what is.

You'd be surprised how many people don't understand that distinction.

[Newtons Bit]

So which "clear" definition of "privileges and immunities" do we use?

That's what the Supreme Court is for. :D

In all non-self-contradictory-seriousness, the writers of the 14th amendment had published what they said, in detail, the 14th amendment meant. Then the Supreme Court came along and basically used it to ensure that the racist and discriminatory laws weren't effected. It wasn't until a century later that the Supreme Court decided to interpret it in a way that the writers intended.

Language is hard. I'm glad I'm not a lawyer.

I think you are putting objectivism where there is none. The language is vague. If the drafters of the amendment wanted a specific outcome, they should have put in specific language. (i.e. "This amendment binds all states in the union to abide by the Bill of Rights.") They have to live with their own failure.

See above.


I'm clear on that. It is what you want, not what is.

You'd be surprised how many people don't understand that distinction.

Idealism is fun, but it's ultimately a fantasy. I know that this isn't something that's going to change though we have perhaps reached the end of the creep. The Rehnquist court struck down the ridiculously justified "Gun-Free School Zone" in that it went too far in stating that inner-state commerce was somehow effected by guns in a school zone. I think the concern of the Court was that the inter-state commerce clause was being used to justify Federal takeover of local police matters. If the law stood, another law based on the same precedent could be used to end local and federal divisions in law enforcement jurisdictions.

Creep into areas like this is what I'm ultimately concerned with.

[KingMerv00]

That's what the Supreme Court is for. :D

Considering the composition of the court now, only half of it is useful though. (Which half is up to you. :D)

In all non-self-contradictory-seriousness, the writers of the 14th amendment had published what they said, in detail, the 14th amendment meant. Then the Supreme Court came along and basically used it to ensure that the racist and discriminatory laws weren't effected. It wasn't until a century later that the Supreme Court decided to interpret it in a way that the writers intended.

The writers' intent is something to consider but it isn't the end of the conversation. The people didn't vote on the writers' notes, they voted on the text of the amendment.

The writers left it ambiguous so the courts were left a lot of leeway. That will teach them to use firm language if they wanted a firm outcome.

Language is hard. I'm glad I'm not a lawyer.

Try being a politician. Apparently, you get to write poorly worded documents, get them passed, and then say "What I really meant was..."

Idealism is fun, but it's ultimately a fantasy. I know that this isn't something that's going to change though we have perhaps reached the end of the creep. The Rehnquist court struck down the ridiculously justified "Gun-Free School Zone" in that it went too far in stating that inner-state commerce was somehow effected by guns in a school zone. I think the concern of the Court was that the inter-state commerce clause was being used to justify Federal takeover of local police matters. If the law stood, another law based on the same precedent could be used to end local and federal divisions in law enforcement jurisdictions.

Creep into areas like this is what I'm ultimately concerned with.

We share a similar concern. I mentioned my fears over the commerce clause earlier in the thread.

Legality aside, do you really think the country would be better off if we left fundamental rights up to the individual states?

[tyr_13]

Banning guns?

Banning religions?

Banning some talk radio hosts?

Etc. Etc. Etc.

All could be justified as relating to the general welfare.

All could be attempted to be justified as being related to the general welfare. Providing basic medical care is so clearly in the general welfare that it's difficult to come up with a better example and yet this Congress, with all it's super majority, can hardly pass any reforms to provide for it better. Yet you believe that future Congresses and courts, could ban religion?

There is a good reason for those checks and balances, and all, and not ALL of them are the Constitution itself. Some bad laws are not passed not because they are unconstitutional, but because they are bad.

[DDWW]

No, that's not what they're saying. They're saying that providing for the general welfare is a power specifically delegated to the United States.

And they're right. Article I, clause 8: "The Congress shall have Power ... to provide for the common Defence and general Welfare of the United States"

I disagree on the interpertation; They (the Founders) were great wordsmiths. They wrote general welfare of the Untied States....not general welfare of the People. There is a big difference.

DDWW

[Newtons Bit]

Legality aside, do you really think the country would be better off if we left fundamental rights up to the individual states?

Definitely not. History shows us that bigots can get together and reason their way into creating slaves out of another race. There needs to be a big stick preventing that sort of behavior.

[mhaze]

I disagree on the interpertation; They (the Founders) were great wordsmiths. They wrote general welfare of the Untied States....not general welfare of the People. There is a big difference.

DDWWThat difference is that the United States is specifically made up of the States, not the people?

[Cleon]

That difference is that the United States is specifically made up of the States, not the people?

"We the States, of the United States, in Order to form a more perfect Union..."

No, wait, something about that just doesn't seem right...

[JoeTheJuggler]

I disagree on the interpertation; They (the Founders) were great wordsmiths. They wrote general welfare of the Untied States....not general welfare of the People. There is a big difference.

Can you elaborate?

What is something that is the general welfare of the United States that is not the general welfare of the people? (And please note, that the same clause specified the "common defence" as if it were a distinct thing.)