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The constitutionality of the individual mandate, cont'd

Reader JB responds to Bill Dailey's defense of the Supreme Court's impartiality:

I had a professor in law school who one day handed out the text of a law, and a description of a situation. He gave the class a few minutes to read.

His first question was, "If you wanted this law to apply to this situation, how would you argue that?" Hands went up, and people set out arguments for why the law applied.

His second question was, "If you wanted this law to not apply to this situation, how would you argue that?" More hands, and people arguing that the law did not apply.

Third question: "So does the law apply, or not?" There were several answers from people who felt strongly that it did or didn't apply. He kept asking for more responses until someone said, "Whether it applies depends on whether the judge wants it to apply."

He raised his eyebrows and nodded.

"I tell you now, the great secret of the law," he said quietly. "All laws are written this way."

By Ezra Klein  | October 15, 2010; 5:26 PM ET
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Hopefully, enough judges say "no" to ObamaCare.

Posted by: JakeD2 | October 15, 2010 5:32 PM | Report abuse

"All laws are written this way."

I sympathize with the sentiment, but let's not overgeneralize. The vast majority of laws are not, in fact, written "this way." With most statute, there's only so much the judiciary can do to interpret them against their obvious meaning without losing credibility with the public.

Obviously, the Constitution is different -- it contains too many abstractions. And statutes, though they try to be specific, usually end up containing abstractions and gaps regarding what's to be done in certain situations. That's usually either because it hadn't occurred to the legislators or because they couldn't come to any agreement about how to resolve the issue.

Posted by: blah1 | October 15, 2010 7:00 PM | Report abuse

Anyone who finds this question interesting would do well to read Segal and Spaeth, "The Supreme Court and the Attitudinal Model Revisited." It's an extremely rigorous look at process on the Supreme Court, and their basic argument is that individual justices' policy attitudes drive decision-making on the court (not some pure, unbiased sense of legal principles).

It's very compelling and considered by many as the all-time classic of the political science research on courts.

Posted by: vvf2 | October 15, 2010 9:40 PM | Report abuse

The only reason the mandate has a fighting chance is because liberal jurists have managed to successfully obliterate the Constitution in many respects. The Democrats could have avoided this Constitutional showdown through the use of open enrollment and other actuarially sound, VOLUNTARY means of controlling the gaming of the system, but nooooooo, not our Democrats. Why leave to the vagaries of personal responsibility and initiative what we can dictate for all?

Posted by: bgmma50 | October 15, 2010 10:29 PM | Report abuse

-articlesbase-com - click on news and society in articles category enter in search box - IS OBAMA A SOCIALIST? and listed is - A list of family, friends, and advisers that can be/are linked to socialism, or total government control. July 15, 2010; Nearly any subject/title can be researched such as - IN THE PRESENT BUREAUCRAT CREATED CRISIS, ELECTION REFORM IS IMPERATIVE 2010-07-24 - Please consider the reforms necessary for November elections. The current elitists schemes are putting people in debt for decades, destroying private enterprise, and CAPITALISM – stimulating gov. ideals more than creating jobs, and are remaking America into a socialist state/monocracy; the freedoms we had before this administration took power will never be seen again.

Posted by: WhaThe | October 16, 2010 9:17 PM | Report abuse

- Mark Levin and Americans for Prosperity have partnered on the Sick of Spending initiative to send a message and give Americans across the nation a voice that will be heard by their elected officials. Mark Levin talks about Sick of Spending on 6/17/2010
- freeenterprise-com “Free enterprise is the best way to create jobs and get America back to work. Does your candidate get it? Find out by sending them five questions-and let their answers help you determine if they understand the critical value of free enterprise...”
- crimes against liberty by David Limbaugh – explains how Obama gets what he wants - c.2010 by Regency Publishing, Inc.
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---"If you have ten thousand regulations, you destroy all respect for the law." -- Sir Winston Churchill
from glennbeck-com AMERICA! We Can Do Better VOTE! - Iraqi voter turn out 95% U.S.A. Voter turn out 38%

Posted by: WhaThe | October 16, 2010 9:21 PM | Report abuse

It is hard to see how they could overturn the mandate in principle, although it might require a rewording. A commentator at Brad DeLong's points out that, in effect, the mandate is no different than many other tax deductions. If we both make the same income but you get a mortgage and I do not, then you get the mortgage deduction and I do not -- I am paying more in taxes. Thus I am being penalized for not engaging in commercial behavior. You can see the logic: if the government flipped it around, collected $600 more from everybody and then gave a $600 deduction to everyone who carried health insurance, it works out the same.

If SCOTUS overturns the mandate, many tax deductions could be in jeopardy. Also, we will be much closer to a public option, because the private insurers won't be able to afford to provide universal coverage with no recessions and no pre-existing conditions.

Posted by: Lee_A_Arnold | October 17, 2010 11:29 AM | Report abuse

Excuse me, no "rescissions", not "recessions".

Posted by: Lee_A_Arnold | October 17, 2010 11:34 AM | Report abuse

We can probably settled this argument when we see day in and day out judges applying a different standard of conduct and law beaking depending who the accused is and in most cases totally disproportional to the crime and the individual.
I filed a claim against a car delearship, I follow all the instructions and the judge theat me sending me to jail for contempt to Court just because I argued that I did what the Clerk of the Court told me I had to do which ironically the dealer's attorney agreed with me afterwards. There are thousands and thousands of cases where judges excersice their unlimited and biases powers.

Posted by: postDC | October 18, 2010 10:01 AM | Report abuse

Mr. Klein:

Glad you've at least implicitly acknowledged that the individual mandate is of dubious constitutionality.

My question of you is: To what extent does the Constitution allow the federal government to run our lives?

As far as I can tell from your previous posts, apart from the holy sacrament of abortion which is somehow an unenumerated constitutional right, you don't see any limits to federal power.

Posted by: ElmerStoup | October 18, 2010 3:01 PM | Report abuse

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