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Posted at 1:53 PM ET, 12/13/2010

Legal expert: Ruling on health reform is "very defective" and "will be overturned"

By Greg Sargent

As you have already heard, a federal judge in Virginia today pronounced the Affordable Care Act unconstitutional, delivering the hardest legal blow yet to Obama's signature domestic achievement and handing "Obamacare" foes some new material for their ongoing anti-Obamacare dance around the campfire.

But on a conference call with reporters just now, a legal expert pronounced the ruling "very defective" in terms of reasoning and legal precedent, and confidently predicted it would be overturned on appeal or by the Supreme Court.

The ruling, by U.S. District Court judge Henry Hudson, made the claim that the individual mandate is unconstitutional, dismissing the Obama administration's argument that the Commerce Clause in the Constitution gives Congress the authority to regulate commerce by imposing the mandate. Hudson wrote:

Neither the Supreme Court nor any federal circuit court of appeals has extended Commerce Clause powers to compel an individual to involuntarily enter the stream of commerce by purchasing a commodity in the private market. In doing so, enactment of the [individual mandate] exceeds the Commerce Clause powers vested in Congress under Article I.

But Tim Jost, a professor of law at the Washington and Lee University Law School, dismissed this argument, deriding it as a fundamental misreadling of the Constitution and claiming that the judge has "rewritten the Commerce Clause."

Jost, who spoke to reporters on a conference call organized by the pro-health reform Center of American Progress, accused Hudson of an overly narrow reading of the Commerce Clause. He said the judge's reading turned on the idea that the Commerce Clause only focuses on regulating economic activity, when in fact it also empowers Congress to regulate economic decisions that are "not immediately classifable as activity."

The Commerce Clause, Jost said, "really turns on economic decisions." By this Jost means that the Commerce Clause empowers Congress to step in and regulate when Americans fail to participate in economic activity in a way that impacts interstate commerce. In other words, failing to purchase health insurance does not constitute economic activity -- in a sense it's the absence of economic activity -- but Congress can step in anyway.

Jost argued that the Supreme Court has already upheld the right of Congress to regulate such economic decision-making. For instance, Jost noted, in the 1942 case Wickard v Filburn, the Supreme Court ruled that the Commerce Clause gives Congress the authority to prohibit wheat farmers from growing wheat for their own use. This forced them to participate in interstate commerce to get wheat.

The Constitution, by the way, empowers Congress "to regulate Commerce with foreign Nations, and among the several States."

Jost noted that with Wickard v Filburn, the Supreme Court affirmed Congress' authority, under certain circumstances, to step in and force participation in interstate commerce when individuals declare: "I'm not in the stream of commerce. I'm just out here on my own." This is directly comparable to the debate over the individual mandate, Jost pointed out.

"This decision is very defective," Jost concluded, "and will be reversed by the appellate court or the Supreme Court."

By Greg Sargent  | December 13, 2010; 1:53 PM ET
Categories:  Health reform, Supreme Court  
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Comments

Legal Expert: Health care is NOT interstate commerce


How about that one???

..

Posted by: RainForestRising | December 13, 2010 2:01 PM | Report abuse

I'm not sure how the constitutional challenges to health care reform will end up but many of us on the Left were warning about this very thing when the public option was abandoned. I'd say it's long past time when we Americans began paying attention to the people are correct in predicting events.

Posted by: wbgonne | December 13, 2010 2:02 PM | Report abuse

If they got rid of the mandate and put in place a public option to keep the costs of providing insurance to the sickest and poorest individuals, I'd be fine with that.

I'm not a fan of the mandate either. It won't affect me but I know of a half dozen people that will be forced into insurance and are gonna be ticked off when it takes affect.

On a side note regarding the health of this country.

"President to Sign Landmark Child Nutrition Bill

...The bill would, for the the first time, set nutritional standards for all food sold in schools--including vending machines and a la carte lines--and mandate an increase in the meal reimbursement rate for the first time in over three decades, by approximately 6 cents a meal. The legislation will also expand enrollment of already-qualified students in federal meal programs, provide funding for farm-to-school programs, and expand access to breakfast programs..."

It's a step in the right direction. Obesity is killing this country, literally.

Posted by: mikefromArlington | December 13, 2010 2:03 PM | Report abuse

Doh! Meant to leave a link for that article.


http://www.foodsafetynews.com/2010/12/president-to-sign-landmark-child-nutrition-bill-today/

Posted by: mikefromArlington | December 13, 2010 2:04 PM | Report abuse

The wheat decision was different: there were quotas inposed on how much wheat a farmer could sell on the open market

The farmer was seeking to increase his quota - by not counting what he consumed on his own property.


So the farmer was increasing/decreasing his own sales into interstate commerce based on what was consumed on his property.

.

Posted by: RainForestRising | December 13, 2010 2:04 PM | Report abuse

deriding it as a fundamental misreadling of the Constitution and claiming that the judge has "rewritten the Commerce Clause."

Funny, I say the same thing about Wickard.

Posted by: NoVAHockey | December 13, 2010 2:06 PM | Report abuse

Like NoVaH, I would not want to pin the validity of the mandate on "Wickard". I nibbled around the edges of that case for clients in the 70s, and I always thought it was a bit of a stretch, awide from having argued to distinguish each of my cases from it.

It would have been more straightforward, and clearly no problem IMO, to have levied a national health care tax and then tax-credited the cost of buying insurance against it. The AG is arguing in briefs that this structure is indirectly achieving that very model and that what can be done directly can also be done indirectly.

That is probably a stronger argument than blind reliance on "Wickard", because invalidating the mandate elevates form over substance.

Posted by: mark_in_austin | December 13, 2010 2:16 PM | Report abuse

"I say the same thing about Wickard."

And the Supreme Court may agree with you as soon as they figure out how to distinguish Raich v. Gonzalez which, I have little doubt, they will. Anyone predicting with confidence the fate of the HCR litigation hasn't been paying attention. Citizens United ring a bell? How many predicted that one? This SCOTUS is radical and won't hesitate to undo decades of precedent.

Posted by: wbgonne | December 13, 2010 2:19 PM | Report abuse

Just another case of a Right Wing judge legislating from the bench.

On the other hand, I don't like the idea of a mandate that will only make the health insurance companies richer. They need to be broken apart and scattered to the winds. They don't provide a useful function.

Posted by: filmnoia | December 13, 2010 2:20 PM | Report abuse

"it as a fundamental misreadling of the Constitution and claiming that the judge has "rewritten the Commerce Clause.""

This "expert" is a complete jack*ss who is no doubt a terrible lawyer as well. You can make his argument from Wickard, but to claim this ruling rewrites the Commerce Clause is preposterous. He has to torture "to regulate Commerce . . . among the several States" to find somewhere there power to regulate "economic decisions," including the decision not to engage in commerce, let alone commerce "among the several States."

Every honest person knows that Wickard itself shredded the Constitution, and Obamacare goes farther. Who knows, perhaps a majority will now have the guts to disapprove Wickard.

Posted by: quarterback1 | December 13, 2010 2:22 PM | Report abuse

I'd demand my money back if my kid had this guy as a law professor. By his definition, anything that Congress deems interstate commerce is open for them to mandate we purchase. What a horrible reading of the law this professor has.

I am terrified of what could be mandated for purchase if he is correct. And if he is right, there is absolutely no bounds or restrictions on the ability of Congress to regulate our behavior. Is that considered a good thing by the crackpot from Washington and Lee?

Posted by: Bailers | December 13, 2010 2:26 PM | Report abuse

Public Option


I don't know how many of you are in business, however imagine yourself in this situation: you are in business and the government starts giving tax dollars to your competitors so they can reduce their prices.


Your customers are going to see those lower prices, and leave you. Your sales will go down. If it is bad enough, you will go out of business.


The question is: is this a proper use of government funds???


.

Posted by: RainForestRising | December 13, 2010 2:27 PM | Report abuse

If the mandate is removed and everything else remains intact maybe the insurance companies will go bankrupt and force the Govn't to create a public plan.

lol

Wouldn't that be a hoot.

Posted by: mikefromArlington | December 13, 2010 2:31 PM | Report abuse

"Citizens United ring a bell? How many predicted that one? This SCOTUS is radical and won't hesitate to undo decades of precedent."

More legal nonsense from wb. How many times do you have to have it explained to you that CU did NOT undo decades of precedent?

As for Raich, it's pretty simple. I would probably have held the federal law unconstitutional, but nevertheless it regulated economic activity. It didn't regulate nonactivity or compel anyone enter into any transaction.

Posted by: quarterback1 | December 13, 2010 2:32 PM | Report abuse

wbgone: Raich -- another awful decision. At least it gave us a good dissent: "If Congress can regulate this under the Commerce Clause, then it can regulate virtually anything--and the Federal Government is no longer one of limited and enumerated powers."

I've seen the argument that Scalia's opinion in that case is a result of respect for judicial precedent. I don't buy it. If that case is about anything other than backyard dope, he dissents.

Wickard is striking in a number of ways -- chief among them is how the court caved to pressure from FDR. that whole, "switch in time saves nine" deal.

Posted by: NoVAHockey | December 13, 2010 2:33 PM | Report abuse

"For instance, Jost noted, in the 1942 case Wickard v Filburn, the Supreme Court ruled that the Commerce Clause gives Congress the authority to prohibit wheat farmers from growing wheat for their own use."

Wickard v Filburn was wrongly decided. It's interesting how sanguine the "legal expert" is that this ruling won't be upheld given the current composition of the court.

Ezra Klein's blog references a much better approach for progressives from Paul Starr, to basically add an option to opt out of the mandate with appropriate penalties for opting back in later.

http://voices.washingtonpost.com/ezra-klein/2010/12/is_the_hudson_ruling_good_news.html

http://www.prospect.org/cs/articles?article=averting_a_health_care_backlash

This assumes that progressives would accept anything less than a maximalist position on what the Federal government can enact under the Commerce Clause.

Posted by: jnc4p | December 13, 2010 2:35 PM | Report abuse


‘ Jost argued that the Supreme Court has already upheld the right of Congress to regulate such economic decision-making. For instance, Jost noted, in the 1942 case Wickard v Filburn, the Supreme Court ruled that the Commerce Clause gives Congress the authority to prohibit wheat farmers from growing wheat for their own use. This forced them to participate in interstate commerce to get wheat. ‘

==============

What a crock of BS, ‘economic decision-making’?


In Wickard vs Filburn the SC ruled that Congress has the authority to FORBID a farmer from participating in an activity that has economic repercussions. Telling someone they cannot participate in an economic activity IS regulation of interstate commerce (though I believe it can only apply to generic items whose original origin is not unique to one State). I also believe the commerce clause (and Wichard vs Filburn) will get another review and look-see with the new Montana gun law that will eventually get to the SC.


Forcing someone to participate in economic activity is NOT what Wichard vs Filburn decided and therefore the ‘individual insurance mandate’ is going to be on thin ice in the SC!


Posted by: bcarte1 | December 13, 2010 2:39 PM | Report abuse

"I've seen the argument that Scalia's opinion in that case is a result of respect for judicial precedent. I don't buy it. If that case is about anything other than backyard dope, he dissents."

I concur. It's the DFH exception to the Commerce Clause.

Posted by: wbgonne | December 13, 2010 2:42 PM | Report abuse

The mandate is a concoction of the GOP and strongly supported by the insurance industry as a means to greater profits.

Interesting ... activist conservative judge shoots his base in the a$$.

Posted by: pragmaticagain | December 13, 2010 2:45 PM | Report abuse

"If the mandate is removed and everything else remains intact maybe the insurance companies will go bankrupt and force the Govn't to create a public plan."

The other critical question is severability. If the Individual Mandate falls does HCR fall altogether or can the Individual Mandate be stripped with the rest remaining intact? It's anybody's guess on that one.

Posted by: wbgonne | December 13, 2010 2:46 PM | Report abuse

There was also a relatively lengthy debate between myself and Ethan2010 the last time this issue was brought up on this blog:

http://voices.washingtonpost.com/plum-line/2010/11/constitutional_law_prof_mitch.html

I return to the question of why was it necessary to amend the Constitution with the Eighteenth Amendment(Prohibition)if Wickard v Filburn was correct understanding of the Commerce Clause?

Presumably under the reasoning of Wickard v Filburn the Commerce Clause alone should have sufficed to grant Congress the power to enact the Volstead Act. Why would you need to amend the Constitution to regulate alcohol but not wheat?

http://en.wikipedia.org/wiki/Eighteenth_Amendment_to_the_United_States_Constitution

http://en.wikipedia.org/wiki/Volstead_Act

Posted by: jnc4p | December 13, 2010 2:49 PM | Report abuse

DFH -- ha! you know, those hippies aren't going to stomp themselves.

also, the law does not have a severability clause.

Posted by: NoVAHockey | December 13, 2010 2:50 PM | Report abuse

"Interesting ... activist conservative judge shoots his base in the a$$."

Right, there is no precedent supporting Obamacare's mandate, and applying the plain language of the Commerce Clause is "activistm." Some of you are hopeless.

I think it will likely be 5-4 in SCOTUS, with Kennedy likely playing Hamlet on the Patomac again. I hope they finally have the guts to toss Wickard in the dustbin.


Posted by: quarterback1 | December 13, 2010 2:51 PM | Report abuse

If the individual Mandate is thrown out, it will have a huge impact on the insurance rates, since the Insurance cabal would be forced to cover all the highest risk pools, without having sufficient collectibles from the young and most healthy segments of the population.

Since corporations are going more and more toward not providing health care benifits, it will lead to the collapse of the entire health care insurance complex. That is the only thing that will keep this Right Wing Activist Supreme Court from throwing out the mandate. Those two Heritage Foundation Justices will probably get their marching orders from Big Biz, on how to vote on the case.

Posted by: Liam-still | December 13, 2010 2:57 PM | Report abuse

"I return to the question of why was it necessary to amend the Constitution with the Eighteenth Amendment(Prohibition)if Wickard v Filburn was correct understanding of the Commerce Clause?"

Of course, Wickard wasn't correct, and as of the time of the 18th, I would guess it would have seemed as radical as it was when it finally came along. There is no mystery here. Wickard was sheer outlawry and usurpation. The New Deal court threw the Constitution where FDR told the country it belonged ("a horse and buggy document") that stood in his way.

Posted by: quarterback1 | December 13, 2010 2:58 PM | Report abuse

the law does not have a severability clause.

Posted by: NoVAHockey | December 13, 2010 2:50 PM | Report abuse

If the statute is silent then it's up to the courts to decide severability. Right?

Posted by: wbgonne | December 13, 2010 2:58 PM | Report abuse

Gotta love it. On the one hand we have a discussion of the limits of our government and on the other, we have news that the government is legislating something about obesity.

As if yet another spending bill filled with rules and regulations will stop people from over eating. This is just plain silly.

but this appears to be the silly season for liberalism in America. They are convinced that every problem faced by American citizens can be solved with a new law from congress. Even the problems created by the old laws from congress.

If liberals really want to "cure" obesity there is a very simple approach: drive up the cost of food. People are fat because of the limited effort it now takes to acquire sustenance. Obesity is, therefore, a result of American ingenuity.

In response to this the liberals are all joyous about yet another stupid bill that seeks to undermine the nation's parents while enriching the farmer's. all at taxpayer expense.

whoopee

Posted by: skipsailing28 | December 13, 2010 3:16 PM | Report abuse

All, two new polls find that rank and file Democrats STRONGLY support the Bush tax cut deal:

http://voices.washingtonpost.com/plum-line/2010/12/polls_rank_and_file_dems_stron.html

Posted by: Greg Sargent | December 13, 2010 3:19 PM | Report abuse

ALL,

The wheat case with the farmer is not going to be the governing case here.

United States v. Lopez (1995) is going to be the focus of the case here - and the question is: where is the line between States' powers and Federal power.


Previous cases, like the 1930s cases, really sidestepped that issue - and left the impression that there was no line at all. But there is a line. The Constitution draws a line - the question is not whether there is a line, but WHERE the line is.

It is that simple.


Here is one point from the decision of Lopez: "To uphold the Government's contentions here, we have to pile inference upon inference in a manner that would bid fair to convert congressional authority under the Commerce Clause to a general police power of the sort retained by the States. Admittedly, some of our prior cases have taken long steps down that road, giving great deference to congressional action. The broad language in these opinions has suggested the possibility of additional expansion, but we decline here to proceed any further. To do so would require us to conclude that the Constitution's enumeration of powers does not presuppose something not enumerated, and that there never will be a distinction between what is truly national and what is truly local. This we are unwilling to do."

Posted by: RainForestRising | December 13, 2010 3:20 PM | Report abuse

"Interesting ... activist conservative judge shoots his base in the a$$."

Right, there is no precedent supporting Obamacare's mandate, and applying the plain language of the Commerce Clause is "activistm." Some of you are hopeless.

I think it will likely be 5-4 in SCOTUS, with Kennedy likely playing Hamlet on the Patomac again. I hope they finally have the guts to toss Wickard in the dustbin.

Posted by: quarterback1 | December 13, 2010 2:51 PM

Except 2 other Federal Courts have already held that the mandate is constitutional and many other Courts have dismissed the cases filed before them. But this one Judge in this one case is absolutely correct (since you agree with his decision) and he is not an activist Judge (since you agree with his decision).

Black's Law Dictionary defines judicial activism as a "philosophy of judicial decision-making whereby judges allow their personal views about public policy, among other factors, to guide their decisions."

Posted by: pragmaticagain | December 13, 2010 3:23 PM | Report abuse

"If the statute is silent then it's up to the courts to decide severability. Right?"

I don't know. But without the mandate, the financial side of the whole thing falls apart. While not a legal issue, i doubt the courts will ignore it. i think it's an all or nothing deal. and the court will find a ruling that addresses its preferred political outcome.

Posted by: NoVAHockey | December 13, 2010 3:27 PM | Report abuse

Greg, the ruling did not declare the Act unconstitutional. The ruling declared that one provision, and any related references to that provision were unconstitutional.

Even if this ruling is upheld, it wouldn't kill the Act, it wouldn't even wound it mortally. It would make a public option much more attractive, and allow for other improvements.

Move on... Nothing to see here (except a new Republican talking point)

Posted by: ChicagoIndependant | December 13, 2010 3:35 PM | Report abuse

"many of us on the Left were warning about this very thing when the public option was abandoned."

HUH?

With a public option, you still have an individual mandate. The only difference is that one of the OPTIONS of insurance you can buy is publicly sponsored instead of privately sponsored.

Having a public option or not has no bearing on the individual mandate.

And clearly, Citizens United and the gutting of fair pay laws were the tip of the iceberg on conservative judicial activism.

Posted by: theorajones1 | December 13, 2010 3:36 PM | Report abuse

"With a public option, you still have an individual mandate. The only difference is that one of the OPTIONS of insurance you can buy is publicly sponsored instead of privately sponsored."

Yes, but you aren't required to purchase a product from a private company, which -- unless I'm mistaken -- is the heart of the Const objection.

Posted by: wbgonne | December 13, 2010 3:47 PM | Report abuse

I said this already but Benen says it better:

The record here may be inconvenient for the right, but it's also unambiguous: the mandate Republicans currently hate was their idea. It was championed by the Heritage Foundation. It was part of Bob Dole's 1996 presidential campaign platform. Nixon embraced it in the 1970s, and George H.W. Bush kept it going in the 1980s.

For years, it was touted by the likes of John McCain, Mitt Romney, Scott Brown, Chuck Grassley, Bob Bennett, Tommy Thompson, Lamar Alexander, Lindsey Graham, John Thune, Judd Gregg, and many others all notable GOP officials.

My personal favorite is Grassley, who proclaimed on Fox News last year, during the fight over Obama's plan, "I believe that there is a bipartisan consensus to have an individual mandate." (A year later, Grassley signed onto a legal brief insisting that the mandate is unconstitutional.)

This is probably obvious, but in case there are any doubts on this, Republicans are cheering today's ruling, but it's not because they have a problem with the mandate. It's not even because they have a substantive problem with the Affordable Care Act itself.

This is about cheap politics. Republican pollsters no doubt told GOP officials that the mandate is a potential vulnerability to the signature Democratic policy priority, so that's where the party is focusing its attention, hoping that the public simply doesn't pay attention to the fact that they're attacking their own idea.

Posted by: pragmaticagain | December 13, 2010 4:01 PM | Report abuse

"Except 2 other Federal Courts have already held that the mandate is constitutional and many other Courts have dismissed the cases filed before them. But this one Judge in this one case is absolutely correct (since you agree with his decision) and he is not an activist Judge (since you agree with his decision)."

I'm only aware of one judge who held the mandate constitutional -- a Clinton appointee, of course. Obviously an activist ruling by your definition, huh?

No, I don't think Judge Hudson is correct because I agree with him; I agree with him because he is obviously correct.

Neither you nor anyone else has been able to cite any precedent for the far-out "interpretation" of the Commerce Clause being advanced by the left, and the plain language of the clause clearly doesn't authorize the mandate. You can argue for a tortured interpretation that does, but to claim that Judge Hudson's ruling is "activist" is plain ridiculous.

Posted by: quarterback1 | December 13, 2010 4:05 PM | Report abuse

So, your ignorance about previous rulings on this issue is surpassed only by your arrogant assertions of legal wisdom.

No surprise there.

Posted by: pragmaticagain | December 13, 2010 4:16 PM | Report abuse

"It was championed by the Heritage Foundation. It was part of Bob Dole's 1996 presidential campaign platform. Nixon embraced it in the 1970s, and George H.W. Bush kept it going in the 1980s.

For years, it was touted by the likes of John McCain, Mitt Romney, Scott Brown, Chuck Grassley, Bob Bennett, Tommy Thompson, Lamar Alexander, Lindsey Graham, John Thune, Judd Gregg, and many others all notable GOP officials."

You can get a pretty good feel for how disingenuous and slippery these claims of Benen's are just by looking at some of these names and time frames. A mandate was floated in the mid 90s by some Heritage writers but abandoned well before Obamacare. (Look it up.) So was that the "it" embraced by the big-government liberal Nixon 25 years earlier? Was that the "it" supported by Judd Gregg? How about John Thune? Could someone prove up the claim that he "for years" championed the Obamacare mandate?

Yeah, thought not. Btw, if you are trying to shame conservative Republicans, don't cite people like Grassley, Graham, or Brown, let alone Nixon. That just makes us laugh.

Posted by: quarterback1 | December 13, 2010 4:23 PM | Report abuse

Nice "judge":

Henry E. Hudson, the federal judge in Virginia who just ruled health care reform unconstitutional, owns between $15,000 and $50,000 in a GOP political consulting firm that worked against health care reform.

http://gawker.com/5713041/judge-who-ruled-health-care-reform-unconstitutional-owns-piece-of-gop-consulting-firm

FAIL.

Posted by: Ethan2010 | December 13, 2010 4:23 PM | Report abuse

"So, your ignorance about previous rulings on this issue is surpassed only by your arrogant assertions of legal wisdom."

Gosh, you really are brilliant. Why don't you go ahead an post links to all the other rulings dismissing cases and holding the mandate constitutional. Then you can explain why they aren't "activist" but Judge Hudson's holding is.

Posted by: quarterback1 | December 13, 2010 4:28 PM | Report abuse

Your legal prowess is limitless ... so when Heritage proposed it, it was Constitutional but now it is has lost its Constitutional cred because Heritage and the rest of its GOP sponsors abandoned it.

That's quite the Constitution you're interpreting there, nickel.

Posted by: pragmaticagain | December 13, 2010 4:39 PM | Report abuse

Prag, QB is a Constitutional scholar.

The Constitution of Uganda.

Posted by: Ethan2010 | December 13, 2010 4:49 PM | Report abuse

"This forced them to participate in interstate commerce to get wheat."

Untrue. They weren't forced to buy anything. This guy is a teacher?!

Posted by: rnotigan | December 13, 2010 4:55 PM | Report abuse

"so when Heritage proposed it, it was Constitutional but now it is has lost its Constitutional cred because Heritage and the rest of its GOP sponsors abandoned it."

Try to pay attention to facts and premises. Otherwise, you'll never be able to sustain an actual argument.

You could start with showing where I said anything like that. Or even where Heritage ever said a federal mandate was constitutional (not that I would care). Then marshall all your proof of "GOP sponsors" of the Obama mandate and when they abandoned it -- as if that would matter to me anyway. Bob Dole and Chuck Grassley are not exactly thought leaders to conservative Republicans. Grassley is a joke and a big-government thug. Dole is . . . well, he's an old war hero and tax collector for the welfare state.

At the end of the day, you can't assemble any argument for the mandate's constitutionality that passes a laugh test. Hence, your efforts to distract.


Posted by: quarterback1 | December 13, 2010 4:57 PM | Report abuse

Most in the legal community would account Richard Epstein a brighter "expert" on the matter of Commerce Clause constitutionality than this Jost fellow. Here is a rather less dire prognosis for Judge Hudson's ruling by him.

http://www.nationalreview.com/corner/255188/obamacare-now-ropes-richard-epstein

Posted by: quarterback1 | December 13, 2010 5:21 PM | Report abuse

"'The Commerce Clause,' Jost said, 'really turns on economic decisions.' By this Jost means that the Commerce Clause empowers Congress to step in and regulate when Americans fail to participate in economic activity in a way that impacts interstate commerce."

This reads like satire. But hey, let's go with it. What say we pass a bill requiring every American to spend a certain minimum amount, say, $5000, on Christmas -- excuse me, 'Holiday' -- gifts each year? That oughta stimulate the economy.

Posted by: chaos1 | December 13, 2010 6:22 PM | Report abuse

Surely the fact that wheat farmers are engaged in wheat commerce while ordinary Americans are not, for the most part, engaged in the health business, should be a factor. It is time the Gov't regulated the providers and the insurance companies - at least before they subject the rest of us to the tender mercies of one of the most greedy industries in our country - the health insurance cartel.

Posted by: freedom9 | December 13, 2010 8:53 PM | Report abuse

"For instance, Jost noted, in the 1942 case Wickard v Filburn, the Supreme Court ruled that the Commerce Clause gives Congress the authority to prohibit wheat farmers from growing wheat for their own use."

So where does this stop? Can I grow flowers in my own flower pot or do I have to buy them from Florida? Can I brush my own teeth or can congress force me to hire an unemployed person from another state to brush my teeth?

It is frightening what Jost is willing to support.

I personally support single payer system (which may or may not stad up to constitutional scrutiny) or they can offer the public option (which is surely harmless).

I would personally support either.

But I do think that the Obama-Pelosi team was very imperial and high handed. They were well meaning, I do not doubt that. But I do not want their "well meaning" pushed down my throat.

Anyway, what is really frightening is that legal issues are no longer decided by the law. They are decided by party affiliations and Democratic judges seem to support judgments which are clearly illegal, as long as they fit the liberal agenda.

Posted by: rjpal | December 13, 2010 9:04 PM | Report abuse

"Try to pay attention to facts and premises. Otherwise, you'll never be able to sustain an actual argument."

==

This from the guy who's idea of sustaining an argument is "I refuse to debate with you 'cause 'cause 'cause you're a Bolshevik an' stuff."

Cry me a river, qb.

Still waiting to here why the economy didn't implode under Eisenhower,or how the Bolsheviks managed to achieve 300 years of growth in 20 despite not having a bunch of rich parasites skimming off the top.

"I can't answer because it conflicts too much with my cherished beliefs" is an acceptable response, and it turning out to be the obvious one.

On topic: right wingers use the Consitution the was fundamentalists use the bible .. it says whatever they want it to. Recall that cretin Joe Miller in Alaska, tossing around "unconstitutional" like most people toss around articles and prepositions.

Posted by: caothien9 | December 13, 2010 10:48 PM | Report abuse

RainForestRising commented: Legal Expert: Health care is NOT interstate commerce
+++++++

I hope you jest.

Let me count the ways,

1. Patients transported across state lines.
2. Physicians who treat people in more than one state.
3. Pharmaceutical companies that transport drugs across state lines.
4. Health insurance companies that sell policies across state lines.
5. Donated organs that cross state lines.
6. Healthcare companies (hospital groups, etc.) that operate facilities in more than one state.
7. Every time someone uses an internet pharmacy in another state.
8. Ad infinitum ……

Posted by: DrS1 | December 13, 2010 10:53 PM | Report abuse

So where does this stop? Can I grow flowers in my own flower pot or do I have to buy them from Florida? Can I brush my own teeth or can congress force me to hire an unemployed person from another state to brush my teeth?

===

The first one was basically decided in Gonzalez v. Raich. If they decide they don't like your flowers, you can be prosecuted for growing them whether you were intending to sell them to Florida or not. The Commerce Clause in action, folks.

==========
@Freedom9

While I agree with the second part of your statement, I would disagree with your assertion that "ordinary Americans are not, for the most part, engaged in the health business..." Anyone who is, was, or will be a patient is engaged in the health business. That's pretty much everyone - including the wheat farmers.

Posted by: mason08 | December 14, 2010 12:00 AM | Report abuse

"This from the guy who's idea of sustaining an argument is "I refuse to debate with you 'cause 'cause 'cause you're a Bolshevik an' stuff.""

No, I don't debate moronic "arguments" like "how could the Soviets have achieved such spectacular development if at 91% tax rate is too high" -- with Bolshevik idiots. It's like debating a Mafia hitman about why the Mafia is so bad if it makes so much money, or debating with the Devil whether it's really true that crime doesn't pay.

"Still waiting to here why the economy didn't implode under Eisenhower,or how the Bolsheviks managed to achieve 300 years of growth in 20 despite not having a bunch of rich parasites skimming off the top."

Hitler developed even better industry even faster. Those ancient Egyptians managed to build the pyramids. And those dang Chinese built the Great Wall! Their taxes were out of sight! YOU ARE A MORON -- INTELLECTUALLY AND MORALLY.

"On topic: right wingers use the Consitution the was fundamentalists use the bible .. it says whatever they want it to."

It oughta be easy for such a superior intellect as yourself, then, to identify the part of the Constitution that authorizes the Obamacare mandate. Even though no one else has been able to point to any actual words that do that. No, no one will be waiting for your sage observations.


Posted by: quarterback1 | December 14, 2010 6:18 AM | Report abuse

"This reads like satire. But hey, let's go with it. What say we pass a bill requiring every American to spend a certain minimum amount, say, $5000, on Christmas -- excuse me, 'Holiday' -- gifts each year? That oughta stimulate the economy."

Score.

Except the liberals would demand it be steeply graduated. And the rich must spend all theirs on gifts for the poor.

Posted by: quarterback1 | December 14, 2010 6:23 AM | Report abuse

That pesky mandate, what a deal, a mandate to purchase anything is really controversial, but I have to be honest, a mandate to purchase a corporate policy or product with no guarantee of results, or the known result is often more disease, it's pathetic, or is it tragic. Where's the health? If you're healthy, you don't need it. The mandate to purchase is a bad idea and needs scrutiny, I'm glad this is happening.

Posted by: Nimue1 | December 14, 2010 2:50 PM | Report abuse

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