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Posted at 1:12 PM ET, 02/ 2/2011

Conservative legal scholar: We already regulate inactivity

By Greg Sargent

In an interview with me just now, a conservative law professor made an interesting case for the individual mandate: In multiple cases, he said, the federal government has already regulated "inactivity," and it has passed muster with the Constitution.

The cases this professor cited: Jury duty, and the draft.

New York University law professor Rick Hills describes himself as a "registered Republican and outspoken conservative," but he maintains that the primary argument conservatives use against the mandate -- that it's unconstitutional to regulate economic inactivity by forcing people to buy insurance, as Judge Vinson ruled -- is bunk.

Hills frames the question this way: If the federal government can't tell people they don't have the right to refuse to buy insurance, then why was it okay for the federal government to regulate people's "pacifism," i.e., their refusal to fight in wars? Why is it okay for the government to regulate people's refusal to serve on juries?

"If you can regulate inaction to raise juries, and you can regulate inaction to raise an army, then why isn't there equally an implied power to conscript people to buy insurance, to serve the goal of regulating the interstate insurance market?" Hill asks.

The draft was held up as constitutional by the Supreme Court, but not under the "commerce clause" or the "necessary and proper clause," which are being used to defend the individual mandate. But Hills said the larger point stands: Congress has the power to ban inaction.

"If the draft is constitutional, it's constitutional to ban inaction," he said. "Congress can ban inaction, assuming that it's necessary and proper to regulate interstate commerce."

Hills took the comparison a step further, in order to debunk the claim by some conservatives that economic inactivity is too removed from commerce -- or economic activity -- to regulate.

"If economic inactivity is too far from commerce to regulate, then why isn't defense inactivity -- also known as pacifism -- too far from defense to regulate?"

"We can forbid pacifism in order to raise an army," he concluded. "So why can't we forbid economic inaction in order to regulate interstate commerce?"

By Greg Sargent  | February 2, 2011; 1:12 PM ET
Categories:  Health reform  
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Next: Vinson fallout: Florida returns $1 million in health care money to feds

Comments

Insurance is merely a product, not a Constitutional duty. But lets assume (for argument sake), if the government can force Americans to buy ANY product (such as a health insurance policy), what is to stop them from forcing you to buy a gun (like in Switzerland)?

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

The bill, which would take effect Jan. 1, 2012, would give people six months to acquire a firearm after turning 21. The provision does not apply to people who are barred from owning a firearm.

Nor does the measure specify what type of firearm. Instead, residents would pick one “suitable to their temperament, physical capacity, and preference.”

[I expect full-throated support from all Euro-socialist Pelosi-Care supporters for Swiss-style MANDATORY gun ownership.]

*Illustrating Pelosi-Care absurdity by being aburd.*

Posted by: KaddafiDelendaEst | February 2, 2011 1:20 PM | Report abuse

Kaddafi, the core point here is that insurance is NOT like "any other product."

Posted by: Greg Sargent | February 2, 2011 1:24 PM | Report abuse

Greg: Then the core point is an ass.

/q.e.d.

Posted by: KaddafiDelendaEst | February 2, 2011 1:27 PM | Report abuse

And although the proposal in South Dakota is stupid from a policy standpoint, I have not seen anyone argue that it is unconstitutional. Which seems to go to the heart of the GOP argument which is that if the government can force us to buy insurance, what is to stop the government from mandating that we do something stupid or ridiculous?

Wait a minute, I guess the South Dakota proposal proves the GOP point while also pointing out why we should never vote for republicans.

Posted by: pragmaticagain | February 2, 2011 1:32 PM | Report abuse

Translation: if the core point doesn't support my preconceived position, it should be ignored.

Posted by: JennOfArk | February 2, 2011 1:33 PM | Report abuse

Can the Federal government require all people to wear clothes in public? Can they force people to pay for clothes, if they would rather not, and would just like to run around naked, and just show up at emergency rooms, when they end up with frostbitten willies.

Can the Federal government require all legal residents to obtain social security numbers?

Can the Federal government require all legal residents to carry passports, when ever they exit or re-enter the country? People have to pay for passports, so should they have the right to travel without them, since they cost money?

Posted by: Liam-still | February 2, 2011 1:33 PM | Report abuse

Completely off the top of my head: by not serving on a jury you are infringing on someone's constitutional right to a trial by jury. My failure to purchase insurance isn't denying anyone care (i appreciate the financing aspect). and Congress has the right to "raise and support Armies," so it makes sense that Congress would have broader authority in these areas. Also with the draft you can make a claim for classification as a conscientious objector.

(side note: if you get the chance, watch the documentary The Conscientious Objector .. it's about Medal of Honor recipient Desmond Doss. unreal story about a medic who refused to carry a weapon in WWII.)

Posted by: NoVAHockey | February 2, 2011 1:35 PM | Report abuse

So, in other words, the requirement to purchase insurance is to the Commerce Clause what the draft is to Article 1 Section 8 of the Constitution.

When justifying, there is no need to find previous precedence directly related to the Commerce Clause.

Article 1 Section 8, btw, contains this:

"To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years;"

which was used to justify the draft if I'm reading it right.

Posted by: mikefromArlington | February 2, 2011 1:37 PM | Report abuse

ruk7:
"This is the Plumline. THIS is where I have gotten my very positive observations of Cao."
==========================================

Hahahahahahahah. Another fellow we don't want working in human resources.

Posted by: Brigade | February 2, 2011 1:38 PM | Report abuse

[Liam: "Can the Federal government require all people to wear clothes in public?"]

No. The several states (or municipalities) can. Thus, decency laws.

/q.e.d.

Posted by: KaddafiDelendaEst | February 2, 2011 1:39 PM | Report abuse

@pragmaticagain -- lots of people have argued that the South Dakota bill to require gun purchase at 21 is Constitutional because states are not limited in the way Congress is.

That's the difference between Mass insurance requirement and the fed's insurance requirement. Mass is a state, and can do it. I still think the feds can too, but still.

Posted by: nathanrudy | February 2, 2011 1:41 PM | Report abuse

[Jenn drooled: "Translation: if the core point doesn't support my preconceived position, it should be ignored."]

Poor translation. I didn't "ignore" the point. I argued (persuasively) against it, by illustrating its absurdity.

Conversely, Jenn is guilty of precisely what she accuses me.

But one shouldn't expect either logical rebuttal or comprehension from likes of hystrionics, like Jenn.

Try harder to keep up.

Posted by: KaddafiDelendaEst | February 2, 2011 1:45 PM | Report abuse

Thanks nathan, I agree that it's constitutional but it's also true that George Washington signed a federal law requiring all "free able-bodied white male citizen" between the ages of 18 and 45, with a few occupational exceptions, to "provide himself with a good musket or firelock, a sufficient bayonet and belt, two spare flints, and a knapsack, a pouch with a box therein to contain not less than twenty-four cartridges, suited to the bore of his musket or firelock, each cartridge to contain a proper quantity of powder and ball; or with a good rifle, knapsack, shot-pouch and powder horn, twenty balls suited to the bore of his rifle, and a quarter of a pound of powder.."

http://www.salon.com/news/opinion/joe_conason/2010/03/25/militia

Posted by: pragmaticagain | February 2, 2011 1:48 PM | Report abuse

[nathanrudy: "people have argued that the South Dakota bill to require gun purchase at 21 is Constitutional* because states are not limited in the way Congress is."]

Touche'!

*TEA-tastic point*

+10

Posted by: KaddafiDelendaEst | February 2, 2011 1:50 PM | Report abuse

[Kaddafi sprayed: "Poor translation. I didn't "ignore" the point. I argued (persuasively) against it, by illustrating its absurdity."]

Yes, thusly: "Then the core point is an ass."

Very persuasive.


Posted by: JennOfArk | February 2, 2011 1:51 PM | Report abuse

Wait a minute, I guess the South Dakota proposal proves the GOP point while also pointing out why we should never vote for republicans.

Posted by: pragmaticagain | February 2, 2011 1:32 PM
======================================

We? You must still be carrying something around in your pocket?

Posted by: Brigade | February 2, 2011 1:52 PM | Report abuse

So according to Kadaffi, people are free to run around naked in public on Federal Property.

No wonder his village has never searched for their missing idiot!

Posted by: Liam-still | February 2, 2011 1:56 PM | Report abuse

pragmaticagain: The Militia Act of 1792 was a response to Shays Rebellion. It was the basis for forming today's National Guard. In fact, it was replaced by the Militia Act of 1903, which established the United States National Guard as the chief body of organized military reserves in the United States.

Your reasoning to extend this Constitutional DUTY to buying products (health insurance) remains tendencious and specious.

Posted by: KaddafiDelendaEst | February 2, 2011 1:57 PM | Report abuse

So according to Kadaffi, people are free to run around naked in public on Federal Property.

No wonder his village has never searched for their missing idiot!

Posted by: Liam-still | February 2, 2011 1:59 PM | Report abuse

WOW another good one mr. brigade ... I get it ... you're saying no one else in the world could possibly be included in my line of thinking so using "we" must mean I have some imaginary friend in my pocket ... brilliant mr. brigade ... simply brilliant! You and mr. KaddafiDelendaEst really have this one pegged ... you two are just the smartest people here again trolling with us big dummies.

You're really helping us out again mr. brigade ... you and mr. KaddafiDelendaEst with all you're really smart joking and pointing to all your really great ideas. Thanks again ... can't wait until mr. rainforestrising comes up with some of his really smart ideas too ... just like yours.

Posted by: pragmaticagain | February 2, 2011 1:59 PM | Report abuse

"lets assume (for argument sake), if the government can force Americans to buy ANY product (such as a health insurance policy), what is to stop them from forcing you to buy a gun (like in Switzerland)?"

Um, the US government can ALREADY force Americans to buy a gun. The town of Kennesaw, GA passed a law something like 20 years ago saying every house had to own a gun. The ACLU sued, but the law was upheld by the federal government.

So, I guess you concede that this is settled law, and the judges ruling against the ACA are activists going beyond the Constitution?

And that the position on insurance proposed and supported until mid-2009 by the Heritage Foundation, Bob Dole's Presidential Campaign, Mitt Romney, and pretty much any Republican with a plan on healthcare, that this position is actually quite Constitutional and you're just totally uninformed?

Posted by: theorajones1 | February 2, 2011 2:01 PM | Report abuse

Yep ... none of these things are products:

"good musket or firelock, a sufficient bayonet and belt, two spare flints, and a knapsack, a pouch with a box therein to contain not less than twenty-four cartridges, suited to the bore of his musket or firelock, each cartridge to contain a proper quantity of powder and ball; or with a good rifle, knapsack, shot-pouch and powder horn, twenty balls suited to the bore of his rifle, and a quarter of a pound of powder.."

Posted by: pragmaticagain | February 2, 2011 2:03 PM | Report abuse

Recently on a local radio program, a guest speaker (I am trying to find his name) who is a legal historican stated that the federal government requiring citizens to purchase a product is not new. It first occured in the mid 1800's (prior to the civil war). It was the requirement that those who were employeed in a high risk, high hazzard marine occupation were required to purchase inssurance against injury. The injury, fatality rate was high enough that family and disability care become a necessity as those who were injured and thier families would be on the street.

Seems like a good idea then and a good idea now, when the cost is so prohibitive that individuals on their own cannot afford access.

Posted by: cjculver2003 | February 2, 2011 2:04 PM | Report abuse

[Liam: "people are free to run around naked in public on Federal Property."]

Well, if they aren't free, then I expect Obama's Justice Department to arrest the "How Berkeley Can You Be Parade" participants.
zombietime.com/how_berkeley_can_you_be/

Posted by: KaddafiDelendaEst | February 2, 2011 2:05 PM | Report abuse

Yep ... none of these things are products:

"good musket or firelock, a sufficient bayonet and belt, two spare flints, and a knapsack, a pouch with a box therein to contain not less than twenty-four cartridges, suited to the bore of his musket or firelock, each cartridge to contain a proper quantity of powder and ball; or with a good rifle, knapsack, shot-pouch and powder horn, twenty balls suited to the bore of his rifle, and a quarter of a pound of powder.."


Posted by: pragmaticagain | February 2, 2011 2:03 PM
=======================================

But don't forget, you have to belong to a militia.

Posted by: Brigade | February 2, 2011 2:06 PM | Report abuse

Two off the top of my head:
-My lack of economic participation in the mortgage marketplace is already regulated by the government. If I had a mortgage instead of paying rent, I would get a massive tax cut.
-If I grow a pound of weed in my basement, then smoke it there as I watch TV, I am being economically inactive, but that won't stop the jack boots from kicking my door in and hauling me off.

Posted by: flounder2 | February 2, 2011 2:06 PM | Report abuse

Just try to run around with no clothes on in any of our national parks, and you will soon find out if The Federal Gov. can mandate that you must purchase clothing or not.

Guess which shower of hypocrites would be the first to demand that The Feds force people to purchase and wear clothing.

Off course; All those Right Wing Church Ladies, who are now claiming that it is unconstitutional for the Government to do any such thing.

Posted by: Liam-still | February 2, 2011 2:09 PM | Report abuse

[theorajones1: "the US government can ALREADY force Americans to buy a gun. The town of Kennesaw, GA"]

Not the Feds. That was the STATE of Georgia. So, I guess you concede that health care insurance (as a Constitutional matter) is left to the several states, consistent with Article I, section 8.

Try harder to keep up.

Posted by: KaddafiDelendaEst | February 2, 2011 2:11 PM | Report abuse

Just try to run around with no clothes on in any of our national parks, and you will soon find out if The Federal Gov. can mandate that you must purchase clothing or not.

Guess which shower of hypocrites would be the first to demand that The Feds force people to purchase and wear clothing.

Off course; All those Right Wing Church Ladies, who are now claiming that it is unconstitutional for the Government to do any such thing.

Posted by: Liam-still | February 2, 2011 2:13 PM | Report abuse

Errata: ...consistent with Article I, section 8 AND the 10th amendment.

Posted by: KaddafiDelendaEst | February 2, 2011 2:14 PM | Report abuse

All right, I'll fall for the foolish answer. The government of North Dakota has every right to demand, say, that every able-bodied man or woman buy a firearm suitable for the militia. That's the power that is in the constitution, actually. There's zero reason to do it, and you know it. These legislators are not advancing serious legislation, just pulling a stunt in order to have an idiotic talking point.

There IS very good reason to require each taxpayer to be medically insured, actually. It's the only way we can afford to cover nearly everyone. If people only buy insurance when they're sick, they're freeloading. Right now, people show up at emergency rooms, and all other policy holders and taxpayers in general are forced to pay in a very inefficient way. If nearly everyone is insured, the cost of insurance goes DOWN. Lots of expensive emergency care can be done at clinics, by people who can afford to pay.

Posted by: jimhass | February 2, 2011 2:17 PM | Report abuse

[Liam: "find out if The Federal Gov. can mandate that you must purchase clothing or not."]

There is no US federal law that either allows or prohibits nudity. The courts have not ruled whether the right to engage in naturism is guaranteed by the Constitution under its freedom of expression provision.

Thus, the legality of various forms of undress is currently left up to the individual states and localities to decide. Nudity is generally allowed in some areas of some national parks, unless local laws have overriding jurisdiction.

Here again, you merely demonstrate the converse. This is a 10th Amendment enumerated powers issue.

Posted by: KaddafiDelendaEst | February 2, 2011 2:19 PM | Report abuse

Kadaffi, try running around Yellowstone park in the nude, and then get back to us.

Posted by: Liam-still | February 2, 2011 2:21 PM | Report abuse

[jimhass whined: "There IS very good reason to require each taxpayer to be medically insured"]

Then take it up with your state Governor and legislature. It is not within Federally powers. The road to hell is paved with "good" intentions.

See also, the Vinson Ruling.

Posted by: KaddafiDelendaEst | February 2, 2011 2:23 PM | Report abuse

"Jury duty" and the "draft" seem inapt examples.

Commerce analogies abound, although it might be possible to distinguish them. Businesses must pay at least the minimum wage when purchasing labor; if they are large enough or employ enough people:

they must pay to maintain safety and health standards,
they must prominently post OSHA and DOL notices,
they may be coerced by regulation to provide accommodations for the handicapped, and more.

I see here the argument made that the distinction is that a business can choose to close its doors. That seems weak to me. Better to distinguish by saying the individual mandate is de minimus to commerce, like a decision by a firm deemed too small to be "in commerce". Better to overrule W.v. F. and the drug case, while doing this, to avoid the aggregation argument.

That might not be enough, I think, for two reasons.

1] *Because of the box providers are in, created by the federal mandate to actually provide the care.* If the broke-and-uninsured did not have to be treated, each local and individual health care decision would certainly not be "commerce among the states", but a local matter.

2] The examples I gave of businesses too small to affect commerce among the states *come from legislative decision making, not judicial.* W. v. F. and the drug case would seemingly have to be discarded for the Court to get to this result.

Apparently no court will say that Congress cannot regulate the health care industry. I do not believe any single Justice will write that.

While I think it is possible to draw the "inaction" distinction, to do so requires distinguishing from many other mandates to DO SOMETHING, *if one is in commerce.* I am finding that distinction difficult without defining more severely what is "commerce among the states".

Posted by: mark_in_austin | February 2, 2011 2:24 PM | Report abuse

Actually;

The Road To Hell, was paved by Tea Party members, AKA Stupid Koch Suckers.

Posted by: Liam-still | February 2, 2011 2:28 PM | Report abuse

Apparently it's possible to get a fancy law professor somewhere to say just about anything, no matter how boneheaded.

Greg, once again, for the 100th time, the draft and jury duty have NOTHING to do with the scope of power under the Commerce Clause. Did you ask the Prof. about this problem with his argument?

It isn't proving anything except that there are things the federal government can require people to do -- under other provisions of the Constitution, NOT the Commerce Clause.

Posted by: quarterback1 | February 2, 2011 2:29 PM | Report abuse

As previously pointed out:

Testifying before the Senate Judiciary Committee on Wednesday, Ronald Reagan's Solicitor General Charles Fried said that even though he believes that there are lots of problems with the Affordable Care Act, he's "quite sure that the health care mandate is constitutional."

Fried, now a Beneficial Professor of Law at Harvard Law School, told the committee in his opening statement that the commerce clause of the Constitution gives Congress the power to regulate, which is precisely what the law signed by President Barack Obama does.

"To my mind, that is the end of the story," Fried said. "The mandate is a rule. More accurately, it is part of the system of rules by which commerce is to be governed."

http://tpmdc.talkingpointsmemo.com/2011/02/reagan-solicitor-general-says-health-care-is-constitutional.php?ref=fpblg

Posted by: pragmaticagain | February 2, 2011 2:33 PM | Report abuse

[Liam: "Tea Party members, AKA Stupid Koch Suckers."]

Your Tourette's Syndrome outburst and inability to rebut the cited EVIDENCE merely demonstrate the intellectual bankruptcy of your position.

Thanks for playing.

Grade: F- (miserable failure)

/buh-bye

Posted by: KaddafiDelendaEst | February 2, 2011 2:34 PM | Report abuse

["To my mind, that is the end of the story," Fried said.]

Fortunately, a more authoritative mind (Judge Vinson) has ruled otherwise.

*VOID*

Posted by: KaddafiDelendaEst | February 2, 2011 2:37 PM | Report abuse

"KaddafiDelendaEst" AND those South Dakota lawmakers need to learn some history. For an example of a government forcing citizens to buy a product, look no farther than Kennesaw, Ga. In 1982, the Kennesaw City Council unanimously passed a law requiring heads of households to own at least one firearm with ammunition. The ACLU challenged the law in federal court, but the action was dropped after Kennesaw amended the law to exclude conscientious objectors.

There is voluminous case law to show instances where higher levels of government have used actions by lower levels of government as precedent -- so what the South Dakota lawmakers are unwittingly (or half-wittingly) doing is not only proposing a fully constitutional measure but also adding an arrow to the quiver of Obamacare's supporters.

Additionally, for those who say health care isn't part of the federal government's constitutional mandate, please show me where the Constitution permits the designation of national parks. Want to rule THEM unconstitutional too? Knock yourself out!

The health-care reform -- AND its mandate -- is constitutional not only the Preamble's stated mission to "promote the general welfare" but also under the First Amendment's guarantee that the people can petition their government for "redress of grievances." Courts of all partisan stripes have consistently ruled that those grievances are not limited to complaints against the federal government but also include grievances against state and local governments and taxing districts as well as private and business entities.

Obamacare is thus fully constitutional. The only danger it faces is that certain Supreme Court justices, who recent revelations reveal have been quite cozy financially with corporate and political-advocacy groups, will return the favor as they did with the egregious Citizen's United "A corporation is the same as a person" ruling and put Prudential ahead of prudence and precedent.

Posted by: GDallas | February 2, 2011 2:38 PM | Report abuse

"Kaddafi, the core point here is that insurance is NOT like "any other product."

No case has ever been made, nor can it be made, that it is unique. We can conjure up the same rationale for requirements to buy an infinite number of other services and goods.

We don't even need to focus on any particular good or service. Right now the Keynesian Democrats tell us that everyone needs to spend more money to revive the economy. Thus, all the people who aren't spending enough money are collectively having a material adverse impact on interstate commerce. If ACA is valid, Congress could equally pass a law simply requiring everyone to spend $X or X% of their resources.

There's nothing at all unique about insurance and health care.

Posted by: quarterback1 | February 2, 2011 2:38 PM | Report abuse

There is no doubt, by the way, that the Federal government has the right to institute a government single-payer system supported by taxes.

Posted by: jimhass | February 2, 2011 2:41 PM | Report abuse

I'm with the right-wingnuts on this one. And I fully want single payer gov't provided health care.

Forcing us to buy insurance is a bad idea.

Taxing us and providing that same service is so constitutional it isn't funny. That is how it *should* be done. Then the anti-ACA people wouldn't be able to argue about constitutionality but rather than the actual merits of the benefits being provided.

Posted by: rpixley220 | February 2, 2011 2:43 PM | Report abuse

[GDallas boasted: "The health-care reform -- AND its mandate -- is constitutional"]

Again, a more authoritative mind (Judge Vinson) has ruled otherwise.

*VOID*

Posted by: KaddafiDelendaEst | February 2, 2011 2:43 PM | Report abuse

Unless Vinson has more "authoriTIE" than other judges with similar standing who have ruled otherwise, that means nothing.

I think the word you were looking for there is "authoritarian".

Posted by: JennOfArk | February 2, 2011 2:48 PM | Report abuse

Right wing logic is kickin' in here...

"Bah! What would a Harvard law professor know. Wait, was he Obama's professor when Obama attended Harvard? That explains it! Reagan's Solicitor General and Obama planned this all along. They are in cahoots! We're being bamboozled!"

Posted by: mikefromArlington | February 2, 2011 2:49 PM | Report abuse

ruh roh! This should freak out the right. Obama's Facebook update:

"As of this morning, at the request of the respective states, FEMA personnel have deployed to Arkansas, Connecticut, Illinois, Indiana, Kansas, Missouri, New Jersey, New York, Ohio, Oklahoma, Pennsylvania, Rhode Island, and Wisconsin."

Run for the hills folks, run for the hills!

Posted by: mikefromArlington | February 2, 2011 2:50 PM | Report abuse

[rpixley: "Taxing us and providing that same service is so constitutional it isn't funny."]

Very popular, too! Good luck getting those votes.

"I have not said that I was a single-payer supporter, because, frankly, we historically have had a employer-based system in this country, with private insurers, and for us to transition to a system like that, I believe would be too disruptive."
--Barry Hussein Soetoro--

Oh Please, make single-payer the DEM platform for 2012.

*TEA-tastic!*

Posted by: KaddafiDelendaEst | February 2, 2011 2:51 PM | Report abuse

GDallas made a number of fatuous claims above.

The powers of state and local governments are not confined to those in Art I Sec 8. Indeed, they retain all the powers NOT listed there. Their exercises of power are in no sense precedent for federal legislation.

National parks have nothing at all to do with the issue. They are owned by the federal government, and the government as property owner is not constrained to the enumerated powers in Art. I.

The 1st Am also has nothing at all to do with the constitutionality of ACA. That assertion is so off base it doesn't even qualify as wrong. It's just patent nonsense.

I really don't mind nonlawyers discussing law, but good heavens at least try to learn a little bit before making sweeping assertions that are utter foolishness.

Posted by: quarterback1 | February 2, 2011 2:57 PM | Report abuse

[mike boasted: "Reagan's Solicitor General and Obama planned this all along."]

You are aware Judge Fried voted for Obama.

*senility*

Posted by: KaddafiDelendaEst | February 2, 2011 3:01 PM | Report abuse

If the right is up in arms suddenly about this how on earth do they deal with Eminent Domain?

Posted by: mikefromArlington | February 2, 2011 3:02 PM | Report abuse

I'm sorry to antagonize people I like and respect...the attorneys who are posting...I truly mean no disrespect!

Wonder why the average American just might not have the highest opinion of lawyers in this country?

All this wrangling...one says the legal experts that do not agree with him are (you can fill in the blank) another dissects very carefully every precedent...most people know this is a political battle and the entire bunch of bickering is a tempest in a teapot. (pun intended)

So pick your sides one and all...I readily confess I'm no legal scholar...I would never debate Q.B. or Mark in Austin on this...they know case precedent and all the yadda yadda that goes with it. Has anybody ever seen the exercise where people turn a legal document into "plain English". Do we wonder why some of our laws are so poorly written or hard to determine...who writes our laws? Are they not by and large written by attorneys who have become politicians or their staffs who have legal backgrounds..or lobbyists who again have legal backgrounds.

Thanks heavens Egypt is overwhelming this story. Personally I'll wait until it gets to the Supreme Court and see what kind of mood the Supremes are in when they actually hear it. BTW attorneys..if this comes down on a straight partisan 5-4 line it's going to be one more reason to lose respect for our judicial system as being no longer impartial but highly politicized. I say that not as a partisan for I would acknowledge the same problem for the left leaning jurists and the righties in the crowd. Given that this was originally a REPUBLICAN idea, given that EVERY lawsuit against it was filed by a REPUBLICAN state official...this is simple politics cloaked in a bunch of legal BS! Given that each side has presented scholars from both sides..actually I'm assuming the righties have their scholars lined up..I've only seen Greg's...just let the damn thing get to the Supremes and let the politics run their course...this is not about justice!

http://law.jrank.org/pages/18751/Lawyers-Popular-Perceptions.html

Historically, American lawyers have been respected, although their public approval ratings never matched those of physicians or the clergy. After all, the lawyers’ most publicized role is criminal defense; many people will never view with approval a profession that they believe puts dangerous criminals back on the street.

Nevertheless, during most of American history, people thought that lawyers could be trusted and that the profession had considerable prestige. Writing in the 1830s, Alexis de Tocqueville stated: “as the lawyers form the only enlightened class whom the people do not mistrust, they are naturally called upon to occupy most of the public stations.” No one would dream of writing that today. In the last twenty-five years, the public’s opinion of lawyers has turned sharply negative. Nowadays, American lawyers are distrusted and despised.

This assertion is supported by a large amount of polling data

Posted by: rukidding7 | February 2, 2011 3:04 PM | Report abuse

All, looks like Florida is actually giving back $1 million in federal grant money on health reform in the wake of the Vinson ruling:

http://voices.washingtonpost.com/plum-line/2011/02/florida_returns_1_million_in_h.html

Posted by: Greg Sargent | February 2, 2011 3:04 PM | Report abuse

"You are aware Judge Fried voted for Obama.

*senility*"

Apart from Obama being the superior choice in the election, anyone possible on the fence with a lick of a conscience in them took ten seconds of listening to Palin to realize she shouldn't be 300 millionth in line for the Presidency, let alone 2nd.

Posted by: mikefromArlington | February 2, 2011 3:05 PM | Report abuse

[rukidding7: "a straight partisan 5-4 line"]

Kagan will be forced to recuse herself.

So, even if Kennedy sides with the liberal justices, a 4-4 deadlock means that the Supremes will defer to the decision made by the lower court, meaning the circuit court which handled it before them.

That will be the 11th Circuit, based in Atlanta and covering Florida, Georgia, and Alabama. The Chief Justice is Indiana-native, Alabama-schooled, Bush-appointed (Reagan-nominee) Judge Dubina.

*Game Over*

Posted by: KaddafiDelendaEst | February 2, 2011 3:16 PM | Report abuse

"We can forbid pacifism in order to raise an army," he concluded. "So why can't we forbid economic inaction in order to regulate interstate commerce?"

Because the relevant provisions of the Constitution read entirely differently and have entirely different purposes. It is the power "To raise and support armies" versus the power "To regulate Commerce . . . among the several States ...."

One is a grant of power affirmatively to establish the existence of something -- armies. The other is a grant of power to regulate something that must already exist to be regulated. It does not say "to compel or establish" interstate commerce, for example.

The prof evidently does not like the philosophical distinction between action and inaction, or more particularly between regulating action and compelling action. I'm frankly embarassed for him.

Posted by: quarterback1 | February 2, 2011 3:16 PM | Report abuse

rpixley220, I doubt that the courts would look kindly on a tax scheme instituted after this law is held unconstitutional. Consider something you do agree with: abortion rights. Could Congress tax women 100% but then give them a credit for every year they don't get an abortion?

Posted by: clawrence12 | February 2, 2011 3:17 PM | Report abuse

Mark or QB, has there evdr been comparable use of the Commerce Clause, where it was used to regulateeconomic inactivity?

Also Mark, Judge Stinson used the following analogy:

"Should Congress thus have power under the Commerce Clause to preemptively regulate and require individuals above a certain income level to purchase a home financed with a mortgage (and secured with mortgage guaranty insurance) in order to add stability to the housing and financial markets (and to guard against the possibility of future cost-shifting because of a defaulted mortgage), on the theory that most everyone is currently, or inevitably one day will be, active in the housing market?"

If you agree with the Constitutuonality ofthe Mandate, do you also agree that the Judge's example would also be Constitutional?

Thanks in advance.

Posted by: TrollMcWingnut | February 2, 2011 3:21 PM | Report abuse

BTW Just for some perspective here.
Judge Vinson comes from a state with one of the worst judiciaries in the nation. Jeb Bush in his infinite wisdom took the authority away from an independent judicial nominating authority and placed in the hands of the Governor thus assuring one of the most corrupt and hated judiciaries in any state. They are largely political lackeys, many of them former state pols who are now reaping their "golden parachutes."

http://www.tampabay.com/google/search.php?hidden01=&hidden02=&hidden03=&hidden04=&hidden05=&hidden06=&hidden07=&hidden08=&hidden09=&hidden10=&hidden11=&hidden12=&hidden13=&hidden14=&cx=005271800417660358352%3Adubhaachbpe&cof=FORID%3A9&ie=UTF-8&q=taj+mahal+courthouse&choices=site&x=0&y=0#922

That links to a compendium of stories that show how Marco Rubio and others were complicit in misdirecting tax payer $$$
into a "Taj Mahal" of a courthouse...some really nice perks for the judges who THEMSELVES lobbied their old buds in the legislature to sneak the appropriation for this boondoggle of grand excess into the back of a bill the last day of session.
It's good to be a judge in Florida!

"Those 60-inch LCD television screens may not grace the walls of the judges at the 1st District Court of Appeal's fancy new building.

Also, judges could someday be banned from lobbying the state Legislature.

Those are some of the things under discussion in the wake of a St. Petersburg Times story describing the sneaky way two of the 1st District judges managed to get themselves a new courthouse that some are calling a "Taj Mahal.'' Or "Taj MaHawke.''

Budgets are being slashed in courthouses across the state, but 1st District Chief Judge Paul Hawkes and Judge Brad Thomas, both former legislative employees, managed to gain legislative approval of a bond issue to help fund the $48 million building nearing completion at Southwood, about 6 miles southeast of the Capitol.

The 1st District court had agreed to buy 60-inch LCD televisions for each of its 15 judges, plus five additional ones for other offices.

Sen. Mike Fasano, R-New Port Richey, said he has asked his staff to come up with a bill that would ban judges from lobbying, or at minimum, come up with suggestions for changing legislative rules that would require judges to register. Current rules exempt judges from having to register to lobby.

"These judges come to Tallahassee and complain about not having things, but they seem to have time to lobby for a $40 million building,'' Fasano said. "Paul Hawkes may be a nice gentleman, but he forgets he is no longer a legislator. He broke every protocol for judges in the book.''

Posted by: rukidding7 | February 2, 2011 3:22 PM | Report abuse

quarterback1, don't forget that there is "conscientious objector" status too.

Posted by: clawrence12 | February 2, 2011 3:24 PM | Report abuse

But lets assume (for argument sake), if the government can force Americans to buy ANY product (such as a health insurance policy), what is to stop them from forcing you to buy a gun (like in Switzerland)?
-----------

That's right! How dare the government force people to buy guns! The Founders never would have stood for that!

Well, except maybe for those who were in the Congress that passed the Militia Act of 1792. And some guy named George Washington, who signed it:

"That every citizen [free white male between 18 & 45], so enrolled and notified, shall, within six months thereafter, provide himself with a good musket or firelock, a sufficient bayonet and belt, two spare flints, and a knapsack, a pouch, with a box therein, to contain not less than twenty four cartridges, suited to the bore of his musket or firelock, each cartridge to contain a proper quantity of powder and ball; or with a good rifle, knapsack, shot-pouch, and powder-horn, twenty balls suited to the bore of his rifle, and a quarter of a pound of powder."

http://www.constitution.org/mil/mil_act_1792.htm

Posted by: aviate | February 2, 2011 3:25 PM | Report abuse

[ruk drooled: "Judge Vinson... worst judiciaries... corrupt and hated... political lackeys"]

You forgot puppy puncher and kitten kicker.

*pffl*

Posted by: KaddafiDelendaEst | February 2, 2011 3:29 PM | Report abuse

TrollMcWingnut, the closest case was Wilard v. Filburn where a FARMER was not allowed to grow wheat if he wasn't going to sell it.

Posted by: clawrence12 | February 2, 2011 3:30 PM | Report abuse

Replying to:
"Kagan will be forced to recuse herself."

So, even if Kennedy sides with the liberal justices, a 4-4 deadlock means that the Supremes will defer to the decision made by the lower court, meaning the circuit court which handled it before them.

That will be the 11th Circuit, based in Atlanta and covering Florida, Georgia, and Alabama. The Chief Justice is Indiana-native, Alabama-schooled, Bush-appointed (Reagan-nominee) Judge Dubina.

*Game Over*

Posted by: KaddafiDelendaEst | February 2, 2011 3:16 PM |"

First of all, Kaddafi, there is absolutely no reason Justice Kagan should have to recuse herself from the decision. She played no role in drafting the health care law, nor did she defend its constitutionality in court.

Second, it's quite telling that you assume that justices appointed by Republican presidents will automatically rule the health care law is unconstitutional. As for me, I have faith in the ability of the Supreme Court members to put aside their political preferences and rule on the merits of the challenges (such as they are). Too bad you apparently don't.

Posted by: DCSteve1 | February 2, 2011 3:32 PM | Report abuse

@aviate: The Militia Act of 1792 was a response to Shays Rebellion. It was the basis for forming today's National Guard. In fact, it was replaced by the Militia Act of 1903, which established the United States National Guard as the chief body of organized military reserves in the United States.

Your specious conflation of this Constitutional DUTY with buying products (health insurance) is tendencious.

Try to keep up.

Posted by: KaddafiDelendaEst | February 2, 2011 3:32 PM | Report abuse

"if this comes down on a straight partisan 5-4 line it's going to be one more reason to lose respect for our judicial system as being no longer impartial but highly politicized."

Does that mean both sides will be equally wrong? Or do you expect one will be "right" on the Constitutional issues and the other wrong?

"I would never debate Q.B. or Mark in Austin on this...they know case precedent and all the yadda yadda that goes with it."

Mark is much nicer than me, though. He's a great addition to this blog.

"In the last twenty-five years, the public’s opinion of lawyers has turned sharply negative. Nowadays, American lawyers are distrusted and despised."

Which in my mind corresponds to period of radicalization of the courts (and law schools), the transformation of the judicial system into a plaintiffs' lottery and redistribution system, and the rise of robber baron plaintiff lawyer. But that's just my opinion; what do I know.

"Do we wonder why some of our laws are so poorly written or hard to determine...who writes our laws?"

A lot of them are written badly (you wouldn't even believe how badly) just because they are written by lawyers who can't write and might not even be very bright. And because the laws have just proliferated to such an absurd and complex extent that it is impossible to write them in ways that are clear.

The Constitution is written in rather simply langue for the most part. It took fancy lawyering (sophistry) to twist and defeat its provisions in many, many cases.

Posted by: quarterback1 | February 2, 2011 3:34 PM | Report abuse

Wow, Greg, a new low for you. The examples posed by this "Conservative" bear little resemblence to the health insurance market.

It is a consitutional requirement that the government maintain a military to defend the country. To do this it must reserve the right to press its citizens into service if the nation is under attack. This is not "regulating inaction in a market" like the invidual manded is. There is no market; this is about defense of the military from invaders, which is the #1 objective of the government.

As for the second one, the right to a trial by jury is a constitutional requirement. To make the constitutional legal system work, citizens must be pressed to serve on juries. It too is not an economic market.

There is no Constitutional requirement about the government ensuring all citizens have access to health care and health insurance. What arose is an market industry, just like the agriculture industry, or the transportation industry and so on. Inaction in any of these markets will not lead to a deficiency in a Constitutionally mandated right.

This is another extremely poor attempt by Greg to discredit Vinson's ruling. He's just flailing about looking for anything, hoping no one will actually comprehend was he posts and understand it to be the absolute drivel that it is.

Posted by: octopi213 | February 2, 2011 3:36 PM | Report abuse

Kaddafi, the word is spelled TENDENTIOUS, not "tendencious." Considering how apt that term is for most of your postings here, I'm truly surprised you don't know how to spell it.

Perhaps instead of chastizing others with snide exhortations to "Try to keep up," you might take your own advice and consult a dictionary once in a while?

Posted by: DCSteve1 | February 2, 2011 3:37 PM | Report abuse

But lets assume (for argument sake), if the government can force Americans to buy ANY product (such as a health insurance policy), what is to stop them from forcing you to buy a gun (like in Switzerland)?
-----------

That's right! How dare the government force people to buy guns! The Founders never would have stood for that!

Well, except maybe for those who were in the Congress that passed the Militia Act of 1792. And some guy named George Washington, who signed it:

"That every citizen [free white male between 18 & 45], so enrolled and notified, shall, within six months thereafter, provide himself with a good musket or firelock, a sufficient bayonet and belt, two spare flints, and a knapsack, a pouch, with a box therein, to contain not less than twenty four cartridges, suited to the bore of his musket or firelock, each cartridge to contain a proper quantity of powder and ball; or with a good rifle, knapsack, shot-pouch, and powder-horn, twenty balls suited to the bore of his rifle, and a quarter of a pound of powder."

http://www.constitution.org/mil/mil_act_1792.htm

Posted by: aviate | February 2, 2011 3:39 PM | Report abuse

Troll,

"Mark or QB, has there evdr been comparable use of the Commerce Clause, where it was used to regulateeconomic inactivity?"

I'm sure you could find people to quibble, but I think the plain answer is "No." If there were such cases, the vast armies of advocates trying to defend ACA would undoubtedly have found and cited them, and they haven't cited a single one.

Some have tried to argue that Wickard amounts to the same thing because the farmer was "forced" to buy wheat, but that simply isn't true.


Posted by: quarterback1 | February 2, 2011 3:44 PM | Report abuse

octopi213, how are we supposed to believe this Rick Hill law professor is really a "conservative"?

Posted by: clawrence12 | February 2, 2011 3:44 PM | Report abuse

At least there are a few conservative jurists out there with some integrity, ones who follow the law and the latest marching orders from the Federalist Society and FOX.

Here's another one--Ronald Reagan's Solicitor General:

"I am quite sure that the health care mandate is constitutional.... My authorities are not recent. They go back to John Marshall, who sat in the Virginia legislature at the time they ratified the Constitution, and who, in 1824, in Gibbons v. Ogden, said, regarding Congress' Commerce power, 'what is this power? It is the power to regulate. That is -- to proscribe the rule by which commerce is governed.' To my mind, that is the end of the story of the constitutional basis for the mandate.

"The mandate is a rule -- more accurately, 'part of a system of rules by which commerce is to be governed,' to quote Chief Justice Marshall. And if that weren't enough for you -- though it is enough for me -- you go back to Marshall in 1819, in McCulloch v. Maryland, where he said 'the powers given to the government imply the ordinary means of execution. The government which has the right to do an act' -- surely, to regulate health insurance -- "and has imposed on it the duty of performing that act, must, according to the dictates of reason, be allowed to select the means." And that is the Necessary and Proper Clause."

http://www.washingtonmonthly.com/archives/individual/2011_02/027814.php

In fact, Fried called the law's constitutionality a "no-brainer," which very nicely characterizes the thinking that went into Judge Vinson's decision.

Posted by: aviate | February 2, 2011 3:45 PM | Report abuse

quarterback, I completely agree since Filburn still had the option to simply not buy wheat.

Posted by: clawrence12 | February 2, 2011 3:50 PM | Report abuse

[lamoid sneered: "the word is spelled TENDENTIOUS, not "tendencious."]

Actually, the American Heritage Dictionary cites both spellings as acceptable. (See also, tendency.)

But spelling? Really? That's all you've got.

Good come back, Pots.

Posted by: KaddafiDelendaEst | February 2, 2011 3:52 PM | Report abuse

Quarterback 1 would be advised to get his information from websites that actually serve legal professionals instead of from Faux News or WierdNut Daily.

From FindLaw.com:

"(T)he right of petition has expanded. It is no longer confined to demands for ''a redress of grievances,'' in any accurate meaning of these words, but comprehends demands for an exercise by the Government of its powers in furtherance of the interest and prosperity of the petitioners and of their views on politically contentious matters."

http://caselaw.lp.findlaw.com/data/constitution/amendment01/21.html

Posted by: GDallas | February 2, 2011 3:54 PM | Report abuse

aviate: Is there some Leftist-bot spitting out these canned memes?

Try reading a little higher in the thread. Your refried drivel has already been cited, fisked and dismissed.

Keep up.

Posted by: KaddafiDelendaEst | February 2, 2011 3:55 PM | Report abuse

Thanks for proving my point about your snideness by calling me "Lamoid," Kaddafi. And congratulations on owning a dictionary that allows you to spell as you like!

Now, how about responding to my substantive posting about Justice Kagan?

Posted by: DCSteve1 | February 2, 2011 3:57 PM | Report abuse

ruk, I always dread the specter of Watergate and might have become a mathematician or an econometrician if I had been graduated from college ten years later.

TMW, take your example and add to it, hypothetically, that Congress had previously mandated that all adult citizens be provided a minimal home by the building industry, for which they would pay on a sliding scale according to means, if they "needed" one, according to some measure. Assume that mandate had been approved as constitutional. Then each transaction anywhere would affect all of us when aggregated.

*Thus I think the mandate to provide care to the indigent is the 800 lb. gorilla in the debate.* That upset Scott yesterday, but he understood it, and reflected it back to me.

To be fair, such a mandate could not be imposed on homebuilders, where it has been upon health care providers based on public health and public safety considerations outside the commerce clause. Other thoughts?

Posted by: mark_in_austin | February 2, 2011 4:01 PM | Report abuse

Quarterback 1 would be advised to do his legal research on actual websites serving the professional legal industry, instead of from Faux News or WeirdNut Daily.

To wit, from FindLaw:

http://caselaw.lp.findlaw.com/data/constitution/amendment01/21.html

"(T)he right of petition has expanded. It is no longer confined to demands for 'a redress of grievances,' in any accurate meaning of these words, but comprehends demands for an exercise by the Government of its powers in furtherance of the interest and prosperity of the petitioners and of their views on politically contentious matters."

Posted by: GDallas | February 2, 2011 4:04 PM | Report abuse

Kaddafi,

I am curious, and honestly welcome your response to this question. For what constitutional reason does compliance with a Congressional statute (the Militia Act) passed pursuant to Congress' Article I Section 8 power to "raise and support [a]rmies," rise to the level of a, as you say, "constitutional duty?" What constitutional (not statutory) authority compels an individual to serve in any organized armed forces of the United States? (Please note I am not disputing the power of CONGRESS to pass such a law pursuant to the clause cited above. I am merely disputing that there is a duty in the ABSENCE of such a law.)

Additionally, for what reason, in your mind, does Judge Vinson's ruling striking down the entire law carry any more or less authoritative weight and/or come from any less authoritative a mind than either that of District Court Judge Norman Moon of Virginia, upholding the law; District Court Judge George Steeh of Michigan, upholding the law; or for that matter District Court Judge Henry Hudson of Virginia, striking down only the individual mandate?

Next, one specific criticism of Judge Vinson's ruling (which, with the exception of the severability issue, and though i disagree with it, certainly largely credible and not dismissible out of hand). My criticism is merely that the judge appears to argue that in order to be valid under the Necessary and Proper Clause of Article I, Section 8, a congressional action must be justified under some other independent grant of authority, (citing the ruling with ellipses included solely to save space)

"The defendants have asserted... that the individual mandate is absolutely "necessary”... for the Act to operate as it was intended by Congress. I accept that it is. Nevertheless, the individual mandate falls outside the boundary of Congress' Commerce Clause authority and... By definition, it cannot be 'proper.'"

Such a construction would make the necessary and proper clause a nullity, something wholly improper under any judicially accepted matter of textual interpretation.

I hope my tone and words have been perceived as cordial, and welcome responses and lively and respectful debate.

Posted by: JMan2788 | February 2, 2011 4:07 PM | Report abuse

[DCSteve1 drooled: "there is absolutely no reason Justice Kagan should have to recuse herself."]

WaPo reported that, Kagan recused herself from 25 of the first 51 cases the court accepted so far this term. Much of the court's caseload comes from challenges to federal statutes or government policies, and Kagan served for 14 months as solicitor general, the government's chief legal representative in such cases.
http://www.washingtonpost.com/wp-dyn/content/article/2010/10/03/AR2010100303890.html?sid=ST2010100303908

Kagan reiterated what she said during her confirmation hearings: She intends to recuse herself in cases where she served as lead counsel or played a substantial role.

She was solicitor general when the law was drafted. If she doesn't recuse herself, then you may expect House Judiciary subpoenas to expose her role. If she wants to go that route, bring it on!

Posted by: KaddafiDelendaEst | February 2, 2011 4:09 PM | Report abuse

@DCSteve

"I have faith in the ability of the Supreme Court members to put aside their political preferences and rule on the merits of the challenges (such as they are). Too bad you apparently don't."

Steve what a noble sentiment...and I literally pray you are correct...since I so desperately hope you are right I shan't disagree with you other than to say I'm afraid I'm a doubting Thomas.

Q.B. "Does that mean both sides will be equally wrong? Or do you expect one will be "right" on the Constitutional issues and the other wrong?"

Is that a trick question? :-) As I said I'm no legal expert I'll leave that to you.
As I pointed out I'd just feel better if the rulings didn't come down exactly on partisan lines whether D or R.

As for the rest of your post...hold your seat..I agree with every word!!! Possibly excepting your modesty vis a vis Mark. I agree he is good but so are you. I agree with your reason for the perception problams as well.

Posted by: rukidding7 | February 2, 2011 4:13 PM | Report abuse

"Quarterback 1 would be advised to get his information from websites that actually serve legal professionals instead of from Faux News or WierdNut Daily.

From FindLaw.com:

"(T)he right of petition has expanded. It is no longer confined to demands for ''a redress of grievances,'' in any accurate meaning of these words, but comprehends demands for an exercise by the Government of its powers in furtherance of the interest and prosperity of the petitioners and of their views on politically contentious matters.""
___________________________________

I can certainly guarantee any readers of these comments who might care that you have no familiarity with the law or what information sources and services lawyers use.

As to your Findlaw quotation and your inane point, the 1st Am lets you ask. It doesn't promise you get what you want. And some things Congress can't give you.

You can ask the government for a free unicorn farm, or to make everyone give you $10, or to make all parents name their first-born sons Barack. The 1st Amendment says you can write to your representative or BO every day with those requests.

Sadly, though, Congress couldn't do any of those things, and the 1st Amendment doesn't change that.

Sad for you, huh?

Posted by: quarterback1 | February 2, 2011 4:13 PM | Report abuse

JMAN, I agree with you about the weakness of invoking "necessary and proper" and do not believe any previous case has held that a part of a commerce regulation was necessary but not proper. I mentioned that yesterday here and hoped another lawyer would "fill in the blanks".

TMW, I cited for you mandatory regulations which by themselves are not commercial [e.g.,posting OSHA notices], but by reason of being part of a scheme that does regulate commerce are considered valid. That is why I mentioned that no Justice would write the health insurance industry could not be regulated, IMHO.

Posted by: mark_in_austin | February 2, 2011 4:16 PM | Report abuse

JMan2788: Those questions are outside of what Greg addressed (tendentious/tendencious). I'm sure you can find forums on both sides of the issue discussing those questions.

Personally, I'm off for dinner.

Maybe Mark or QB can take a stab.

Posted by: KaddafiDelendaEst | February 2, 2011 4:16 PM | Report abuse

Kaddafi, do you have a scintilla of evidence that Ms. Kagan either served as lead counsel in defending the law in question or played a substantive role in drafting it? If you do, please cite your source.

In any case, you might want to be careful about going down that particular road. Antonin Scalia regularly addresses Federalist Society and Tea Party gatherings about current legal and political matters, and Clarence Thomas's wife is a prominent Tea Party activist.

So, if fair play is your concern (which I rather doubt), then surely you believe they, too, should recuse themselves from any case concerning the health care law, right?

Of course, we know the chances of that happening are somewhere between slim and none...

Posted by: DCSteve1 | February 2, 2011 4:21 PM | Report abuse

Mark:

""*Thus I think the mandate to provide care to the indigent is the 800 lb. gorilla in the debate.* That upset Scott yesterday, but he understood it, and reflected it back to me.""

The WSj pointed out this morning that Judge Vinson actually addressed this issue in his opinion.

"Judge Vinson flatly rejected the administration's attempt to escape the restrictions of the Commerce Clause by appealing to the Necessary and Proper Clause. His decision acknowledges that, while reforming an insurance market is a regulation of commerce, Congress cannot artificially create its own "free rider" crisis in the insurance market and then use that crisis to justify an otherwise unconstitutional mandate as "necessary and proper" to save the market from collapse.

http://online.wsj.com/article/SB10001424052748703445904576117913097891574.html?mod=WSJ_Opinion_LEADTop

That is pretty much what I pointed out yesterday.

Posted by: ScottC3 | February 2, 2011 4:30 PM | Report abuse

Kaddafi,

In regards to the question of whether Justice Kagan should recuse herself (and note that there is no mandatory rule for judicial recusal, particularly at the Supreme Court level), I quote directly from the article you cited (I invite commenters to check my quotation themselves):

"Kagan is recusing herself from cases in which she had a role in drafting a brief for the Supreme Court, or when she was actively involved in a case in the lower courts. She took herself out of such deliberations when President Obama nominated her last May."

Recusal is an individual decision for judges, and I would submit that it is fair to say that Justice Kagan's standard, quoted above, substantially covers all matters where she could potentially have a tangible and material conflict of interest from her service as Solicitor General. We may have to agree to disagree on this point, but I contend that mere service in an administration's Justice Department at the time of the crafting signing of a health care bill by Congress and that administration does not rise to the level of a conflict of interest sufficient to require recusal.

A hypothetical to illustrate: Chief Justice Roberts was Associate White House Counsel in the Reagan administration for 4 years (from 1982-1986), and Principal Deputy Solicitor General for the entirety of George H.W. Bush's presidency. Should the Chief Justice, under your theory of recusal, have to recuse himself from any and all decisions involving major initiatives passed by either of those administrations during those time periods? Furthermore, must Justice Kagan recuse herself from cases involving ALL legislation that passed with the support of the Obama Administration or merely major initiatives (and how major would major be in that case)?

The suit in Florida and the suit in Virginia (the two challenges successful at the District Court level) were both filed on March 23rd, 2010. The government's brief supplementing its motion to dismiss in the FL case was not filed until June, after the date Kagan removed herself from the day to day actions of the Solicitor General's office.

http://www.politico.com/static/PPM152_100617_dojhcrsuitbrf.html

The brief in Virginia v. Sebelius was filed on May 24, 2010, again after Kagan's nomination.

http://www.scribd.com/doc/31897264/COMMONWEALTH-OF-VIRGINIA-v-SEBELIUS-21-MOTION-to-Dismiss-vaed-18902792754-21-0

Absent some evidence of actual substantive involvement in the cases in between March 23rd and May 9th of 2010, Justice Kagan would certainly be well within her reasonable standard not to recuse herself.

I again welcome any and all thoughts.

Posted by: JMan2788 | February 2, 2011 4:33 PM | Report abuse

Kaddafi,

I was merely addressing your assertion that service pursuant to the Militia Act of 1792 rises to the level of a (in your words) "constitutional DUTY," not addressing anything noted by any other commenter.

I included several other paragraphs/issues to save space and not clog the thread with multiple successive posts from one commenter.

Plainly, you read my post and I am disappointed by your refusal to answer this question, which concerned solely your words and nobody else's.

Posted by: JMan2788 | February 2, 2011 4:36 PM | Report abuse

clawrence12,

Well that was why I put "conservative" in quotes; I was asking the same question you were. My suspicion is this dude is a "conservative" just as David Brooks or Kathleen Parker is a "conservative," which is to in reality mean Democrat-lite.

Posted by: octopi213 | February 2, 2011 4:39 PM | Report abuse

The Road To Hell is paved by Stupid Koch Suckers like me.

Posted by: Liam-still | February 2, 2011 2:28 PM
=======================================

Fixed it for you.

Posted by: Brigade | February 2, 2011 4:48 PM | Report abuse

anyone possible on the fence with a lick of a conscience in them took ten seconds of listening to Palin to realize she shouldn't be 300 millionth in line for the Presidency, let alone 2nd.

Posted by: mikefromArlington | February 2, 2011 3:05 PM
========================================

One worse choice would have been ole hairplug. Oh wait . . .

Posted by: Brigade | February 2, 2011 4:55 PM | Report abuse

Mark, 

Thanks for the response. I'm not arguing that the Fed cannot regulate Interstate commerce, but that the Federal Government cannot impose a Mandate to buy something because my not doing it costs, for lack of a better word, society some amount of money.  If I understand your argument, since hospitals are required to provide Emergency care and stabilization to all comers, Congress is allowed to require me to buy insurance to offset the existing costshifting.  But, hospitals do in fact charge those patients, and do in fact attempt to collect monies from them.  They are just not allowed to ask for it in the first place. I guess that requirement, emergency care for all comers regardless of renumeration is essentially a tax imposed for doing business.  Much like a business is required to post the OSHA stuff.  Ultimately, I don't have to open a hospital if I don't want to pay that tax.  But under Obamacare,  I do have to buy insurance though merely for existing.  It's unavoidable.  Isn't that a distinction?

Posted by: TrollMcWingnut | February 2, 2011 4:57 PM | Report abuse


Actually;

The Road To Hell, was paved by Tea Party members, AKA Stupid Koch Suckers.

Posted by: Liam-still | February 2, 2011 2:28 PM |

............................


Posted by: Liam-still | February 2, 2011 5:00 PM | Report abuse

Very important post, Scott.

"Congress cannot artificially create its own "free rider" crisis in the insurance market and then use that crisis to justify an otherwise unconstitutional mandate as "necessary and proper" to save the market from collapse."

It is appealing to me as an argument, but I do not see why Congress cannot create a "free rider" crisis and then fix it by making it more complex. I reject the part of the statement that rests on "necessary and proper", however.

In short, it sounds reasonable, but it doesn't sound prohibited under Art. I, Sec. 9, either. It may be bad law, but why is it not within Congress' power to make bad law, if it is not prohibited by the Constitution?

Posted by: mark_in_austin | February 2, 2011 5:14 PM | Report abuse

Women aren't subject to the draft so are they exempt? And jury duty candidates are pulled from voter registrations. Don't register to vote and you aren't called for jury duty. Bad examples for his argument.

Posted by: barkway | February 2, 2011 5:22 PM | Report abuse

Mark/Scott,

Just to clarify, that was the WSJ's own construction of the ruling. Judge Vinson never if fact discussed free-riding at all in his opinion (a search for all references to the word "free" in the opinion and footnotes found no discussion of free-riding).

Additionally, a separate issue that I intended to bring up before. Justice Scalia's opinion and logical reasoning in the 2005 case Gonzalez v. Raich (concurring in the judgment that federal regulation of marijuana grown for personal use only and purely being held intrastate where (unlike in Wickard) the grower didn't intend to sell ANY of the product), place him in an interesting position on a potential challenge to the Patient Protection and Affordable Care Act. His reasoning involved a fairly broad reading of the commerce clause and the necessary and proper clause. Any thoughts on this from those who know the case?

Lastly, on the off-chance you come back from dinner and read this Kaddafi. I still welcome any answer to my questions on your notions of "constitutional duty" and the relativity of authoritativeness among the four federal judges who have ruled on challenges to the bill. (Again, about solely your words and nobody else's. That they are not the subject of Mr. Sargent's post seems immaterial to me. If you bring up a concept, it should seem to me to be fair game for others to challenge your logic on it.)

Posted by: JMan2788 | February 2, 2011 5:35 PM | Report abuse

JMAN, I think the aggregation argument must be addressed if the statute is to be declared unconstitutional in part. And I do not see how that happens without casting aside W. v. F. and the marijuana case. Neither of those cases are among my faves, of course. I have called W. v. F. the case Con law students love to hate.

Perhaps it will come down to a slippery slope argument, but that cuts two ways. Pinning a declaration of unconstitutionality on the individual mandate could open the door to attacks on a great many mandatory regulations under the commerce clause, if the Supremes' ruling is as broadly framed as Vinson's opinion.

Posted by: mark_in_austin | February 2, 2011 5:48 PM | Report abuse

barkway, juror rolls are also pulled from U.S. Census files (being forced to response to the Census itself is probably a better example of the point Hills is trying to make).

Posted by: clawrence12 | February 2, 2011 5:59 PM | Report abuse

Mark,

Thank you for that. I am actually currently a first-year law student enrolled in a constitutional law class, and we finished up Commerce clause and Necessary and Proper clause analysis (Wickard, Lopez, Gonzalez, Comstock, McCulloch, etc), which I also learned in a college course. I actually don't hate Wickard; Marbury v. Madison of course is another matter altogether after 4 1/2 hours on it.

The question of health care came up in a post-class discussion and I've been trying to formulate my own opinion on the legal analysis in all four decisions thus far handed down. Unfortunately I now too have to leave, to go read for class later this week. Thanks again to all who engaged in thoughtful, respectful debate.

Posted by: JMan2788 | February 2, 2011 6:01 PM | Report abuse

"what is to stop them from forcing you to buy a gun (like in Switzerland)?"

http://balkin.blogspot.com/2011/01/health-care-reform-broccoli-objection.html

Posted by: Chris_ | February 2, 2011 7:00 PM | Report abuse

"Justice Scalia's opinion and logical reasoning in the 2005 case Gonzalez v. Raich (concurring in the judgment that federal regulation of marijuana grown for personal use only and purely being held intrastate where (unlike in Wickard) the grower didn't intend to sell ANY of the product), place him in an interesting position on a potential challenge to the Patient Protection and Affordable Care Act."

Exactly. Scalia seems like he'd be for the ACA based on that case.

I still don't get why we're defining the activity regulated as "inactivity." You use your own wheat, you severely screw up the wheat market. You don't get insurance, you severely screw up the insurance market. Seems pretty clear-cut to me: when an economic *decision* -- in the aggregate -- affects interstate commerce, it's a valid, constitutional subject of Congressional regulation.

To that first-year law guy, check out this very readable article:

http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1553002

-- Guy studying for the bar exam.

Posted by: Chris_ | February 2, 2011 7:06 PM | Report abuse

aviate: Is there some Leftist-bot spitting out these canned memes?

Try reading a little higher in the thread. Your refried drivel has already been cited, fisked and dismissed.

Keep up.
--------

Sorry big guy, but reading the thread, one thing is clear--your "frisking and dismissing" has itself been frisked and dismissed. Repeatedly.

It would also help if you could read. In my first comment I responded to someone's claim that the government can't force people to buy guns. In fact, the government has forced people to buy guns. I know that conservatives get mad when simple facts disrupt their carefully constructed myths about history, but you really are taking it to new levels.

My second comment quoted from today's testimony by Former Reagan Solicitor General & Harvard Law Prof. Fried. I think we can all stipulate that Prof. Fried has forgotten more about the law and the constitution than you and 1,000 other tea baggers together will ever know. In very careful, precise testimony, he demolished the entire core of the conservative argument, right down to Judge Vinson's claim about broccoli force-feeding (his point--the gov't can't force to eat broccoli, but it can regulate the market and, if necessary, make you buy it).

Others here have done a masterful job of showing how Scalia's reasoning in Gonzales v Raich supports the commerce clause authority behind the ACA. And Fried shows how the unanimous SCOTUS decision in Jacobson v Mass (1905) clearly shows the government has power over "non-activity," in this case fining those who refused smallpox vaccinations.

In short, whether it's the Militia Act, the Seaman and Sailors' Act, Gonzales, Jacobson or any other of a host of SCOTUS decisions going back to the early decades of the Republic (Fried cites precedents written by Justice Marshall), the conservative legal arguments advanced against ACA tumble like a house of cards when subjected to even the most elementary legal scrutiny. Claims the mandate is unprecedented falter in light of clear precedents, claims that the commerce clause does not cover inactivity dissolve under the harsh solvent of dozens of SC rulings, both old and new, and claims that somehow health insurance is only a state matter matter are laughable on their face (ever hear of COBRA, big guy?)

Finally, there is the simple fact that from 1993 to 2008, dozens of conservative politicians and think-tanks ardently championed the mandate (a FEDERAL one) as the best way to ensure universal coverage. So either they were utterly convinced that it was a constitutional measure well within Congress's purview, or they were cynical hypocrites (which would be par for the course).
The only thing that changed after 2008 was that Obama & the Dems passed the law. That does not all of a sudden make it unconstitutional.

Except in the absurd world of American conservatism, of course.

Now quickly run over to Red State to find a witty rejoinder. Wouldn't want you to not keep up...

Posted by: aviate | February 2, 2011 8:46 PM | Report abuse

Seems to me the better comparison is that schools require students to purchase health care (in the form of immunizations) in order to attend school.

Perhaps the difference is that states or localities require that, not the federal government.

Posted by: disgruntledfan | February 3, 2011 10:28 AM | Report abuse

The "conservative" lawyer's original premise is incorrect to start with. His example of the draft and the jury duty first of all have no mandatory expenditure of the individual "ordered" to comply.

In the case of the draft, it is no longer in effect and even then 'pacifists' could declare being a conscienous objector or serve in a non combative position. Now the juror issue, if you vote you "agree" (not an inactive choice) to serve as a juror if picked.

For these reasons I do not believe this lawyer was a "conservative". I really believe that part of this story is made up to fit an agenda.

Posted by: jollyroger88805 | February 3, 2011 2:44 PM | Report abuse


Many existing laws and regulations apply specifically to pregnant women. Several provisions of the Affordable Care Act offer new benefits for expecting mothers. Search online for "Wise Health Insurance" if you need affordable insurance for yourself or your wife.

Posted by: dichack | February 4, 2011 1:31 AM | Report abuse

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