mpethy owned this thread last night.

Do you think they envisioned nuclear weapons?

Do you think they envisioned the Patriot Act?

Do you think they envisioned airplanes? What about trains? What about ****ing cars?

Do you think they envisioned the Internet?

Do you think they envisioned the War on Drugs?

Do you think they envisioned Wal Mart?

Far too much is made of what these people thought or did, they died 200 years ago. Jefferson himself expressed a desire that the Constitution be rewritten every 19 years because the country should belong to the living.

The Commerce clause does not stand in isolation.

So there would be a number of other ways to contest Federal income tax of 99%.

I do not think that the XVI Amendment extends to the appropriation of all individual income.

Also, +1 to a fear that the government could eventually ban cigarettes...we've seen what they've done with pot, and that was WITHOUT Obamacare!!!111!!

/snark

seriously tho, I don't love Obamacare. I think a single payer system would be far, far better. For that reason, I'm not sure what I want the Court to decide here. But I think the fears about it somehow leading to an enormous expansion of government powers down the old slippery slope are incredibly overdone. All the justices in this case are super aware of that very issue and I don't see it holding up without them recognizing health care as a unique market or something along those lines.

Not thinking so and pointing to a limiting principle are two different things.

Or maybe you've misunderstood me? I'm saying the power to tax doesn't appear to have a limiting principle, or, if it does, that limiting principle is very weak.

Their arguments are ludicrous. Here is a straight-forward summary by a conservative attorney:

http://www.acslaw.org/acsblog/lookin...tionality-of-t

Something about this just like lit a lightbulb in my head.

Use obamacare cards for voter IDs! boom. Then we can deny the vote to people who don't have insurance, and we can instantly end the stupid voter ID debate.

Man I'm a ****ing genius.

There have many good arguments made that the Constitution is a living document, and there have been many good arguments made against that very position.

Then the obamacare cards would need a picture. Currently there is no pic on medicare cards.

health care insurance doesn't depend on any other action aside from simple ownership? You mean as long as i have the piece of paper all is well? i won't get sick, or if i do it will fix me? You mean i don't have to decide to go to a Dr. for a check up (like going to a gym) or follow a dr's advise about my diet or lifestyle (like actually eating better foods rather than fast food)?

We've covered this in other threads but

"Judicial activism" = when a court strikes down a law that you like, while

"Garden variety exercise of the power of judicial review" = when a court strikes down a law that you don't like.

(ETA: Not saying mpthy necessarily does not like this law, just borrowing his terminology because it was succinct)

Please read the statute before posting stuff like this. If you can't be bothered to do that, at least read the thread. This has already been covered.

And I am an accountant so I'm quite familiar with the IRS' collection methods.

True, as long as you acknowledge that the Supreme Court overturning the law and imposing this limit on Congress' commerce power would not find its reinforcement in precedent either. When you say that nobody has argued this before, nobody has argued that this limit exists under the Commerce clause either. It's an issue of first impression within a known power - not exactly the same as a Griswold type case where the court is being asked to recognize an entirely new right contrary to precedent, or legislation, or something else.

Really, I see the case as asking the court to recognize a new limit, since the constitutionality of laws passed by Congress is presumed.

You're not making a Lochner economic liberty argument are you? In an age where the government tells us what we can put in our contracts, what we can buy, what we can sell, what we can rent, etc, the idea that the flag will fall if this law is upheld loses some of its gravity.

As long as you have that card, you will be able to pay for the check-up you need when you wake up with a tumor, or wake up in the hospital after being blindsided by a Mack truck. Any of these things could happen to anybody at any time. A meteor could fall on you in the privacy of your own home. It is obvious that these services couldn't be paid for by mandating a transaction between only patients and health care providers, which is why the minimum insurance mandate becomes necessary and proper.

After a night's reflection, I've decided to go out on a limb and predict that the Court will be compelled to articulate a brand-new commerce clause principle, and in doing so, will deem the mandate constitutional. Here is my reasoning.

First, the court appears to want to reach the merits of the commerce clause argument, and did not seem very impressed the other day with the claim that it was not ripe. Nor does a majority appear enamored with the tax power claim.

Second, and more importantly, prior Commerce Clause cases do not directly address the issue that received most of the attention yesterday: i.e., the constitutionality of forcing an individual into commerce (which is another way of invoking the activity/inactivity distinction).

Now, supporters of the law have an extremely strong claim that the precedent contains no language indicating that this type of distinction is relevant. They can also point to other situations (though not necessarily commerce clause cases) where the government does force activity. Still, the court has never, to my knowledge, actually taken the step of saying that the activity/inactivity distinction is irrelevant, simply because the issue has not been framed that way before.

Accordingly, one way or another, this court is going to have to discuss the activity/inactivity issue head-on. Here is where it is worth examining Kennedy and Roberts particularly closely.

Both Kennedy and Roberts initially asked whether the government could create commerce, or force people into commerce. Kennedy suggested that the government's burden might be greater in such a situation, but did not suggest that the burden was necessarily insurmountable. Further, both made comments acknowledging the government's argument that the health care market is truly unique, and that unlike perhaps any other market, every individual is destined to participate (though Roberts wanted to parse whether distinctions could be made about particular types of medical service, and tried analogizing the situation to police and other emergency services). Read in totality, all of those remarks indicate to me that, even if not yet convinced, both Kennedy and Roberts recognize that health insurance may truly present a set of circumstances that could be distinguished from other situations.

I found these comments by Kennedy (made at different points) particularly telling:

Of course, this is speculation. But those comments don't sound to me like someone who is searching for a way to overturn the law. They sound to me like someone who is hoping he can find a principled way to avoid overturning the law.

Did all the pundits who freaked out yesterday just miss that second comment? Wow. I mean it's not a slam dunk or anything but I agree it sounds like he's looking for a way to uphold.

mpethybridge,

I appreciate the work you've done in bringing some legal analysis to this thread, but I have some criticisms of your argument.

You've focused substantially on the idea that, if the individual mandate is considered a constitutional exercise of the Commerce power, it is very difficult (if not impossible) to discern any principle limiting Congress' power to require a person to take market action. Indeed. But I don't see why this is problematic. Conceding, as I must, that the Commerce Clause is a limited grant of power, U.S. v. Morrison, I fail to see why that power doesn't encompass compulsory market activity. Your argument to the contrary is, essentially, a reductio ad absurdum. Surely Congress can't - you seem to be saying - use the Commerce power to require the purchase of a mundane consumer good, such as broccoli.

But why not? The Court has already held that Congress can properly use the Commerce power to limit personal production of wheat as part of a comprehensive scheme to control its price. Wickard v. Filburn. Why couldn't Congress compel you to purchase broccoli if Congress thought there was, for instance, a dearth of interstate trade in produce and considered lowering the price of broccoli by stimulating demand an essential component of encouraging such trade? Here, Congress' goal is to control the national market for healthcare, where it perceives there to be substantial problems of cost growth caused by people's failure to carry insurance.

I'm a not a lawyer but first of all there are jurisdictional issues with all of these things you mention. To me you're implying that "government" is a ubiquitous entity and it's not in the USA (at least not yet). Second of all regarding all of these to me it's more about what govt says you can't do more than what you must do. Consumers have choices with all of these. Not so much with the way Obamacare is set up. Again I'm a layman but I would think the government would have a much stronger case if a minimum level of coverage was specified rather than you have to purchase this specific coverage more or less.

I think that the freakout-ery can be explained a few ways.

First, some pundits were probably hoping, or unrealistically expecting, Scalia, Roberts and Kennedy to be outright dismissive of the law's challengers.

Second, because the government went first, the initial hour was spent with the government on the defensive. Scalia, who is ordinarily very active in oral argument, dominated.

Third, pundits overlook - or misunderstand - how some judges (and evidently, this is the style of both Kennedy and Roberts) like to pose questions of both sides, not to express doubt necessarily but to test propositions and sense reactions from their colleagues.

Yeah, next thing you know the AG will come out and say that 'due process' doesn't mean a hearing in front of a judge.

Oh wait!

Alexander Hamilton literally supported a mandatory payroll tax on all merchant sailors that gave them access to marine hospitals as a response to them having poor healthcare so yes i could indeed see Alexander Hamilton envisioning a government making people buy health insurance.

It was also supported by Adams and Jefferson, fwiw.

Economist from the Brookings Institute criticizes the Justices' understanding of externalities

http://www.brookings.edu/opinions/20...tus_aaron.aspx

NYT editorial today:

There is so much to say on this issue. First, the uninsured only pass costs to the insured so long as doctors are required to treat them. Its also worth noting, the uninsured pay far more for healthcare because they can't negotiate rates (the ones with money at least... and the law only applies to people with money).

oh man the nyt is always good for a laugh. The support for the filibuster based on who is in charge is better though.