Obamacare Unconstitutional.......

[anvi]

To those of you more versed in this than I am........isn't the struck down portion an essential component to the program as a whole?

It is.  Even attorneys for Sibelius argued this in the case Hudson ruled on.  Even though the "mandate" in the law is pretty toothless anyway, without getting everyone covered by health insurance, guaranteed issue can't be financed.  Game, set, match.

[anvi]

I do have a question I'd like to see kicked around more though.  It's more of a philosophical or ethical question than a straightforwardly legal one, but I want to ask it anyway.

I know the case about the "individual mandate" in the bill is about government powers.  But often, the way it's talked about is in terms of the individual's "freedom" not to purchase health insurance.  Yes, yes, I understand the argument about government having no authority to force an individual to buy a product.  But, let's just focus on specifically buying health insurance for a moment.

What sorts of people don't buy health insurance, and why not?

One group of such people, poors, don't refuse to buy health insurance, they just can't afford it, with or without a "mandate."  They get their care in emergency rooms, and the costs for their uncompensated care gets shifted to those of us with coverage.  ACA gives these people subsidies to pay for coverage relative to their incomes, so if they want health insurance, the new law helps them buy it.

I can't imagine that wealthy people, who can afford health insurance, would prefer to pay all their medical expenses at cost because they cherish their freedom not to buy insurance more than the money insurance would save them.  If these folks were that dumb, they would never have gotten or stayed wealthy to begin with.    So the wealthy will choose to purchase health insurance, with or without a "mandate."

There certainly are people who may refuse to purchase health insurance because they have religious objections to being treated by modern medicine.  But ACA exempts these people from the "mandate" and its "penalty," and so honors their freedom to refuse coverage.

Who is left?  Obviously, it's people who could afford health insurance, but don't want to pay for coverage while they are healthy, and only plan to apply when they find out they are or might be getting sick.  Up to now, private insurers would just refuse such people coverage because of pre-existing conditions.  Then they would either walk around sick, in some cases endangering the public health, or just go to emergency rooms, like the unfortunate poors, and again the costs get shifted to the rest of us.  But now the ACA, minus a "mandate," gives these guys the right to go get insurance only when they do get sick, and that again shifts the costs onto the previously insured in the form of (dramatically) increased premiums.

So, whose "freedom" not to buy health insurance needs protection from the government here?  For the most part, it's precisely the freedom of these people who could afford health insurance but just don't want to buy it till they are sick, which makes things harder on everyone else.  Is this the guy whose "freedom" we all want to stand up and defend?  Even when this freedom of his we are defending harms us in so many ways that have nothing to do with our cultural beliefs or political persuasions, but just objectively, by making the possession of health insurance more burdensome for us all?

I think we just often assume cavalierly that, in America, freedom is the supreme end in itself, it is unassailably valuable regardless of what kind of freedom it is.  But the value of any given freedom can be greatly diminished, indeed rendered meaningless or detrimental, under some circumstances.  A guy might have the freedom, for instance, to walk away from his blameless wife and children regardless of how much suffering and hardship it may cause them, but given that his choice hurts so many, do we just honor his freedom without qualification?  Actually, the law allows his injured family to seek redress for the damage he has caused.  But for a guy who refuses to buy insurance just because he doesn't want to, then runs to get care as soon as he falls ill and thereby harms the rest of us, we don't get redress for his irresponsibility.  Instead, we actually pay for his care, and therefore suffer the penalty ourselves, without any redress.  Why can't a "mandate" be our redress?  

I of course accept the basic principle that government's powers should be limited, and there are all kinds of things government should not be permitted to force citizens to do.  Personally, I don't happen to believe in the specific legal arguments of those who want to shoot down the individual mandate like Hudson (and I did take time last night to read his entire ruling as well as reread the one from Moore Law Center v. Obama from October).  But to be honest, I'm no lawyer and if the (toothless) "mandate" does go down, then what the hell can i do about it?  But in this case, I want to know why we should all continue to defend the "freedom" of the guy behind door number 4.  Isn't this "freedom" of his I'm defending merely a freedom to screw me over?

[Badger]

Saying that there isn't a clear constitutional mandate and that interstate commerce rarely applies to medical care isn't judicial activism.

Just honesty and sanity.

Remember, judicial activism is only bad when you disagree with the ruling.

Point to Harry.

[Badger]

D'oh. Apparently the judge doesn't understand what the Necessary and Proper Clause is.

http://tpmdc.talkingpointsmemo.com/2010/12/amateur-hour-va-judge-makes-elementary-error-in-health-care-ruling.php?ref=fpa

Neither do you, apparently.

Here's the text of the Necessary and Proper Clause:

You must be logged in to read this quote.

Now, "the foregoing powers" is obvious.  That refers to the powers enumerated above.  If the Necessary and Proper clause gave congress carte blanche to do anything it pleased, then there would be no point in enumerating the powers of congress.  But what does "necessary and proper for carrying into Execution" mean?  It means exactly what it sounds like.

Liberal (and some "conservative") legal scholars are correct that the Necessary and Proper clause grants congress some powers that are not among the enumerated powers.  However, they must be necessary and proper for carrying into execution the enumerated powers.  The common example used is the congressional power to build post offices.  The enumerated powers specifically give congress the power to build post offices, but it does not give congress the power to hire workers to build post offices, buy land to build post offices on, or buy materials to build post offices with, all of which would be necessary and proper to carry into execution the power to build a post office.  The Necessary and Proper clause thus gives congress powers that are directly related and necessary to executing its enumerated powers.  Therefore, from the Necessary and Proper clause:

Building post offices => hiring workers to build post offices
Building post offices => buying land to build post offices on
Building post offices => buying materials to build post offices

During the early days of the republic, it was a matter of some dispute whether the powers to build post offices and post roads meant that, under the Necessary and Proper clause:

Building post offices/post roads => hiring mail carriers (i.e. having a public postal service)

This is a power that is not necessarily necessary to executing either of those, but it is directly related, and one might argue that it is proper, or even obviously implicit in those powers.  Throughout nearly the entire history of American constitutional jurisprudence, this was considered an expansive reading of the Necessary and Proper clause.

However:

Building post offices => Medicare

Is not a legitimate use of the Necessary and Proper clause.  One might argue that Medicare makes people better able to afford postage, but that is such a tangential relationship that it could not in any way be construed as being proper to build post offices, or implicit to that power.  It certainly is not necessary to build post offices.  This sort of reading of the Necessary and Proper clause is a very recent innovation that flies in the face of everything the founders intended, and 150 straight years of American jurisprudence.

So, Medicare is unconstitutional?

Seems a completely logical and common sense limitation of government powers to prohibit it from providing health care for the elderly. Not at all a case of "whatever I don't like is unconstitutional".

[WillK]

I do have a question I'd like to see kicked around more though.  It's more of a philosophical or ethical question than a straightforwardly legal one, but I want to ask it anyway.
...

 But to be honest, I'm no lawyer and if the (toothless) "mandate" does go down, then what the hell can i do about it?  But in this case, I want to know why we should all continue to defend the "freedom" of the guy behind door number 4.  Isn't this "freedom" of his I'm defending merely a freedom to screw me over?

Really enjoyed this post.

As a next step: What about Congress making some legal reform so that people must prove they have the ability to pay before treatment is proved.   If one of the core issues is the cost burden of emergency room care being shifted to the public, and if addressing this through insurance mandates isnt going to work, then address it from the other direction.  

I know its cold and callous but that might resonate with conservatives.

[Badger]

I do have a question I'd like to see kicked around more though.  It's more of a philosophical or ethical question than a straightforwardly legal one, but I want to ask it anyway.
...

 But to be honest, I'm no lawyer and if the (toothless) "mandate" does go down, then what the hell can i do about it?  But in this case, I want to know why we should all continue to defend the "freedom" of the guy behind door number 4.  Isn't this "freedom" of his I'm defending merely a freedom to screw me over?

Really enjoyed this post.

As a next step: What about Congress making some legal reform so that people must prove they have the ability to pay before treatment is proved.   If one of the core issues is the cost burden of emergency room care being shifted to the public, and if addressing this through insurance mandates isnt going to work, then address it from the other direction.  

I know its cold and callous but that might resonate with conservatives.

Um, "Sorry about that severed artery Mr. Johnson, but your insurance is cancelled and Congress basically voted out the Hippocratic Oath. What's that, Mrs Smith? The contractions are getting closer? Well, there's a fine Quiki-Mart down the street the owners keep very clean---may I suggest moving there?"

This is not the solution to a problem, this is the problem.

Having a half-assed pseudo universal emergency health care system funding at the height of inefficiency through ER services---but this idea would actually be even worse.

[WillK]

I do have a question I'd like to see kicked around more though.  It's more of a philosophical or ethical question than a straightforwardly legal one, but I want to ask it anyway.
...

 But to be honest, I'm no lawyer and if the (toothless) "mandate" does go down, then what the hell can i do about it?  But in this case, I want to know why we should all continue to defend the "freedom" of the guy behind door number 4.  Isn't this "freedom" of his I'm defending merely a freedom to screw me over?

Really enjoyed this post.

As a next step: What about Congress making some legal reform so that people must prove they have the ability to pay before treatment is proved.   If one of the core issues is the cost burden of emergency room care being shifted to the public, and if addressing this through insurance mandates isnt going to work, then address it from the other direction.  

I know its cold and callous but that might resonate with conservatives.

.... this idea would actually be even worse.

Depends on the point of view. 
From a public cost point of view is it worse? 
From a conservative-Ayn Rand "freedom" point of view is it worse? 

If the problem is (1) public cost of medical care is too high and (2) government is too intrusive then one solution is to limit whatever aspect of #2 contributes to #1.   

[Free Palestine]

Seems a completely logical and common sense limitation of government powers to prohibit it from providing health care for the elderly. Not at all a case of "whatever I don't like is unconstitutional".

It's not a case of "whatever I don't like is unconstitutional."  I for one, am not sure if I would be opposed to public health care...at the state level.  I oppose such things at the federal level out of principal.  Many others do.  Clarence Thomas, in the case of Lawrence v Texas, stated that he would vote to repeal Texas's sodomy law, which he described as silly, if he were in the Texas state legislature -- but since he was a Supreme Court Justice, he would have to vote to uphold the state law, which in his view was permissible under the Constitution.  There are of course conservatives who take that "whatever I don't like is unconstitutional" approach -- take Justice Scalia, for example.

However, the position of a lot of liberals -- as well as conservatives -- just seems to be "whatever I like is constitutional."  The whole idea of a "living constitution" is just a means to achieve certain ends.  I'm sure there are some liberals who would take a retardedly originalist position on the Second Amendment, and say it only applies to flintlocks and such -- yet would completely ignore an originalist interpretation of the Commerce Clause.  The idea of a "living constitution" is just a red herring.

I don't oppose federal drug laws or social security because I don't like those things.  I don't like those things, actually.  But the reason I oppose them at the federal level is out of principal.  If you want social security, go ahead and pass an amendment -- I'd vote against it, but if two-thirds of each house of Congress and three-fourths of the states vote to ratify it, I won't act in an unprincipled manner to oppose it.

But of course, I'm not really sure how exactly I feel about social security.

[J. J.]

Saying that there isn't a clear constitutional mandate and that interstate commerce rarely applies to medical care isn't judicial activism.

Just honesty and sanity.

Remember, judicial activism is only bad when you disagree with the ruling.

Point to Harry.

No, I actually agree with decisions I don't like. 

[The Mikado]

If the Constitution is not living...if the meaning of its words does not change regularly to meet present demands...you end up with absurdities like Olmstead (where the Court ruled that because installing wiretaps does not go into a person's private property, it's not search and seizure).

Count me in with Justice Brandeis: the meaning of the  Constitution naturally has to change to keep up with the changes of society or else it's a worthless decoration that has no teeth at all.  The meaning of the Constitution changes to meet the needs of society.

http://scholar.google.com/scholar_case?case=5577544660194763070&hl=en&as_sdt=2&as_vis=1&oi=scholarr

[tpfkaw]

No, Olmstead is about whether there's an implicit right to privacy contained within the 4th amendment.  That's a dispute that could have been just as valid back in 1789 as it is today.  Please try again to justify your bullsh!t legal "theories," which easily beat the worst of "intelligent design" promoters in their level of intellectual dishonesty and sheer ignorance.

[The Mikado]

No, Olmstead is about whether there's an implicit right to privacy contained within the 4th amendment.  That's a dispute that could have been just as valid back in 1789 as it is today.  Please try again to justify your bullsh!t legal "theories," which easily beat the worst of "intelligent design" promoters in their level of intellectual dishonesty and sheer ignorance.

My argument was that Justice Brandeis argued in his dissent that the right against search and seizure and the right against self-incrimination need to evolve to deal with new surveillance techniques, just as the interstate commerce and necessary and proper clause need to deal with new forms of commerce and new ideas that are necessary and proper to complete old objectives.  Brandeis raises telepathy as an example: would being able to pull a thought out of someone's head be considered self-incrimination?  A literal reading of the Fifth Amendment would say it isn't, but a broader view of it would certainly include it.  Similarly, a narrow view of interstate commerce ignores that literally every commercial interaction in the United States affects interstate commerce.  An egg from New York shipped to a New York convenience store bought by a New York couple is affecting interstate commerce because the presence or absence of that egg might raise or lower the price of eggs by a fraction of a cent.  If that egg hadn't been there, an egg from another state might have.

EDIT:

This isn't sophistry, I sincerely believe that in an economy as integrated on every level as the US one that there is a single economic exchange, no matter how small, that can't completely justifiably be called "Interstate."

[tpfkaw]

Well, there ain't no such thing as telepathy, so I'm pretty sure we're safe on that count.  Your reading of the commerce clause (which I seriously doubt even Hamilton would agree with) means that the government would be allowed to kill people on the basis that their mere existence "affects interstate commerce."

[The Mikado]

Well, there ain't no such thing as telepathy, so I'm pretty sure we're safe on that count.  Your reading of the commerce clause (which I seriously doubt even Hamilton would agree with) means that the government would be allowed to kill people on the basis that their mere existence "affects interstate commerce."

Of course Hamilton wouldn't have agreed with it.  The US Economy wasn't anywhere near as integrated in 1789 as it is today.  Perishable goods probably couldn't even make it across state lines, keeping them from affecting other states...transportation was so much slower, the states were much more discrete economic entities etc.  That's the point.  There once WAS a valid distinction between intrastate and interstate commerce.  Said distinction no longer exists.

Frankly, all commerce isn't just interstate, but is international commerce.

[tpfkaw]

Uh, no.  The year 1789 was at the very beginning of the Industrial Revolution, and the United States was just beginning to industrialize and urbanize, with heretofore unparalleled amounts of "interstate commerce."  This was something the founders were well aware of.  Your reading of the Commerce Clause would be like saying that, when there's an auto accident, the liability should be shared by every licensed driver on the continent, since each contributed through their driving habits (or lack of them) to the traffic patterns that eventually led to the accident.

Of course, you also haven't responded to my point that if government can do anything under the sun if it pertains to anything that even tangentially "affects interstate commerce," then it should be allowed to kill people for no reason.  (hmm)

[Landslide Lyndon]

I guess that under wormy's reading the government has every right to shut down internet sites or cable tv stations since the first amendment was meant only for newspapers, letters and spoken words.

[Free Palestine]

I guess that under wormy's reading the government has every right to shut down internet sites or cable tv stations since the first amendment was meant only for newspapers, letters and spoken words.

Shutting down Internet sites and TV stations is not a delegated power of Congress.

[Landslide Lyndon]

I guess that under wormy's reading the government has every right to shut down internet sites or cable tv stations since the first amendment was meant only for newspapers, letters and spoken words.

Shutting down Internet sites and TV stations is not a delegated power of Congress.

Where did I mention congress in my post?

[Free Palestine]

I guess that under wormy's reading the government has every right to shut down internet sites or cable tv stations since the first amendment was meant only for newspapers, letters and spoken words.

Shutting down Internet sites and TV stations is not a delegated power of Congress.

Where did I mention congress in my post?

Well, the First Amendment does say "Congress shall make no law..."

[Landslide Lyndon]

I guess that under wormy's reading the government has every right to shut down internet sites or cable tv stations since the first amendment was meant only for newspapers, letters and spoken words.

Shutting down Internet sites and TV stations is not a delegated power of Congress.

Where did I mention congress in my post?

Well, the First Amendment does say "Congress shall make no law..."

Have you heard of the Sedition Act, Red Scare and Senator McCarthy?
The government can always find an excuse to curtail free speech.

[Free Palestine]

I guess that under wormy's reading the government has every right to shut down internet sites or cable tv stations since the first amendment was meant only for newspapers, letters and spoken words.

Shutting down Internet sites and TV stations is not a delegated power of Congress.

Where did I mention congress in my post?

Well, the First Amendment does say "Congress shall make no law..."

Have you heard of the Sedition Act, Red Scare and Senator McCarthy?
The government can always find an excuse to curtail free speech.

Of course.  Nobody's arguing against that fact.

[The Mikado]

Wormy, the Constitution explicitly guarantees life liberty and property (due process clause, 14th Amendment).  I don't see how any interpretation of Interstate Commerce or Necessary and Proper affects that.  Also, are you seriously going to argue that the states were just as economically integrated prior to the railroad than they are now, when people think nothing of buying goods from China and Chile?

Also, your auto example...that's kind of how insurance does work.  Everyone else's premiums go up if you're too reckless and repeatedly crash.  Your crash or failure to crash affects everyone with the same provider, no matter how minutely.

[Landslide Lyndon]

Of course.  Nobody's arguing against that fact.

But if you want to follow the theory of originalism(?) then all electronic media are defenseless against government's oppression since the people who wrote the constitution never intended to protect them.

[Free Palestine]

Of course.  Nobody's arguing against that fact.

But if you want to follow the theory of originalism(?) then all electronic media are defenseless against government's oppression since the people who wrote the constitution never intended to protect them.

They never intended for the government to have power over them, either.

[Landslide Lyndon]

Of course.  Nobody's arguing against that fact.

But if you want to follow the theory of originalism(?) then all electronic media are defenseless against government's oppression since the people who wrote the constitution never intended to protect them.

They never intended for the government to have power over them, either.

That's a pretty low hurdle compared with actual protection from the constitution.