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Interesting article on upcoming ACA scotus fight

TomTom Senior MemberPosts: 253 Senior Member
Courting the conservatives...
In their defense of the mandate, Obama’s lawyers cite Scalia’s own words in a 2005 case at least five times.

In the Gonzales v. Raich case, Scalia wrote that Congress can regulate a person who wanted to grow legal medicinal marijuana in her home. He said that Congress could do it under the Commerce Clause because the marijuana was “never more than an instant from the interstate market.”

The federal government argues that Congress can regulate the purchase of health insurance in the same way.

Because people can get sick or in an accident, “we are all potentially never more than an instance from the ‘point of consumption’ of health care, yet it is impossible to predict which of us will need it during any period of time,” the government wrote in its Supreme Court brief defending the mandate.
“I would wager that Chief Justice Roberts writes the opinion upholding the law,” Dellinger said, adding that he thinks Roberts would want to write it himself to ensure it’s a narrow ruling. “They’re going to uphold it by saying in this case it is imminently intertwined with a fundamental part of the interstate markets in health insurance and health care.”

The key case that the health law’s supporters point to as indicative of Roberts’s thinking on the Commerce Clause is United States v. Comstock. In that case, Roberts joined the court’s liberal justices to write that Congress can enact a law that is linked — or in legal terms, “necessary and proper” — to a power explicitly written in the Constitution.

“The same reasoning is here: The justification for the minimum coverage provision is that it is necessary to preserve the federal government’s ability to regulate insurance companies dropping people for pre-existing conditions,” said Michael C. Dorf, a Cornell University Law School professor and former law clerk for Kennedy. Dorf called the opinion “potentially strong for the government.”
Kennedy has made clear in several situations that anything the government wants to regulate has to have a strong tie to commercial interests in the Commerce Clause.

In a 1995 case, United States v. Lopez, Kennedy suggested in a concurring opinion that Congress can enact laws that try to address problems in the national economy.

“Congress can regulate in the commercial sphere on the assumption that we have a single market and a unified purpose to build a stable national economy,” he wrote.

And the federal government argued in its first Supreme Court brief defending the law that it’s the same situation in health care. Government lawyers argued that the mandate is needed in order to regulate the health market — one-sixth of the American economy — and make the whole law work.

“What the federal government does [in the health reform case] is say this is a core federal regulation of the economy. It’s needed,” Dorf said. “Maybe that’s an effort to get at Justice Kennedy for what he says in Lopez — not to strike core functions of the federal government.”

http://www.politico.com/news/stories/0212/73412.html

Perhaps a 5-4 isnt a slam dunk after all. Conservatives should be cursing their undying desire to regulate merry-ju-wanna into oblivion. It might be their undoing on the individual mandate. Unless Scalia renders another one of his intellectually gymnastic opinions that superficially appears to dodge all internal inconsistency with a sprint to protection behind the collective skirt of "founder's intent".

Replies

  • JulietJuliet Posts: 49,774 Senior Member
    I don't buy it.

    The marijuana decision still regards production, not consumption.

    That said, I still think the Surpreme Court will find a way to keep ACA. The political ramifications are just too great to overturn it.
  • JulietJuliet Posts: 49,774 Senior Member
    but mike huckabee says that justice kagan will ambush the court in the further plot to take over America by the Dark Overlord
  • TomTom Senior Member Posts: 253 Senior Member
    Steven wrote: »
    The marijuana decision still regards production, not consumption.

    Actually, with respect to marijuana, its both. Last time i checked, a minute ago, possession of any amount is still punishable under federal law. And with respect to scalia's concurrance in raich, its irrelevant, or at least it should be. Here is scalia's pertinent reasoning:
    As we implicitly acknowledged in Lopez, however, Congress's authority to enact laws necessary and proper for the regulation of interstate commerce is not limited to laws directed against economic activities that have a substantial effect on interstate commerce. Though the conduct in Lopez was not economic, the Court nevertheless recognized that it could be regulated as "an essential part of a larger regulation of economic activity, in which the regulatory scheme could be undercut unless the intrastate activity were regulated." 514 U. S., at 561. This statement referred to those cases permitting the regulation of intrastate activities "which in a substantial way interfere with or obstruct the exercise of the granted power." Wrightwood Dairy Co., 315 U. S., at 119; see also United States v. Darby, 312 U. S. 100, 118-119 (1941); Shreveport Rate Cases, 234 U. S., at 353. As the Court put it in Wrightwood Dairy, where Congress has the authority to enact a regulation of interstate commerce, "it possesses every power needed to make that regulation effective." 315 U. S., at 118-119.

    Therefore, because the individual mandate is an essential part of the ACA, and because the choice to get health ins or not does actually touch on the pertinent interstate commerce being regulated under a granted power, scalia is going to have to perform some significant gymnastics to walk back this reasoning. Whether or not the individual mandate is an essential part of the ACA, and therefore properly invokes the necessary and proper clause is the key to this case, not whether the act being regulated is production or consumption.
  • JulietJuliet Posts: 49,774 Senior Member
    From what I have read here, GvR is just Wickard v. Filburn redux. Pefectly obvious what the decision would be.


    Meanwhile, from the Congressional Research Service:

    On the other hand, it may be argued that the mandate goes beyond the bounds of the Commerce
    Clause. One could argue that while regulation of the health insurance industry or the health care
    system could be considered economic activity, regulating a choice to purchase health insurance is
    not. It may also be questioned whether a requirement to purchase health insurance is really a
    regulation of an economic activity or enterprise, if individuals who would be required to purchase
    health insurance are not, but for this regulation, a part of the health insurance market. In general,
    Congress has used its authority under the Commerce Clause to regulate individuals, employers,
    and others who voluntarily take part in some type of economic activity. While in Wickard and
    Raich, the individuals were participating in their own home activities (i.e., producing wheat for
    home consumption and cultivating marijuana for personal use), they were acting of their own
    volition, and this activity was determined to be economic in nature and affected interstate
    commerce. However, a requirement could be imposed on some individuals who engage in
    virtually no economic activity whatsoever. This is a novel issue: whether Congress can use its
    Commerce Clause authority to require a person to buy a good or a service and whether this type
    of required participation can be considered economic activity. Still, while it may seem like too
    much of a bootstrap to force individuals into the health insurance market and then use their
    participation in that market to say they are engaging in commerce, there is plenty of evidence that
    the purchase of health insurance has an effect on the commerce of the nation. For example in
    2007, health care expenditures in the United States grew 6.1% to $2.2 trillion, or $7,421 per
    person, and accounted for 16.2% of gross domestic product.
  • fishingcomicfishingcomic Senior Member Posts: 26,153 Senior Member
    We don't need the mandate. Just make it law that if you get sick without insurance, you die.
    'I've spoken of the Shining City all my political life. …In my mind it was a tall, proud city built on rocks stronger than oceans, windswept, God-blessed, and teeming with people of all kinds living in harmony and peace; a city with free ports that hummed with commerce and creativity. And if there had to be city walls, the walls had doors and the doors were open to anyone with the will and the heart to get here. That's how I saw it, and see it still.'" Ronald Reagan
  • TomTom Senior Member Posts: 253 Senior Member
    Steven wrote: »
    This is a novel issue: whether Congress can use its
    Commerce Clause authority to require a person to buy a good or a service and whether this type
    of required participation can be considered economic activity. Still, while it may seem like too
    much of a bootstrap to force individuals into the health insurance market and then use their
    participation in that market to say they are engaging in commerce, there is plenty of evidence that
    the purchase of health insurance has an effect on the commerce of the nation.

    Right, and there is plenty of evidence that the decision NOT to purchase health insurance directly affects the interstate health insurance market. There is a reason that hospitals charge $8 for an advil and it isnt that advil actually costs them $8. I think you know full well they bake into all their costs the losses they incur because of uninsureds. If you give the OP another read, perhaps even read the whole article, youll see that is part of the fed's argument that may appeal to Roberts and Kennedy as well.

    EVERYONE is but an "instance" (or accident) away from the interstate health insurance market, so voluntary participation (and therefore full payment of your expenses) AND non-participation (imputing a much higher risk of non-payment) have economic impacts. Therefore, the choice not to buy health insurance is economic activity with direct impacts on the market the feds have undeniable authority to regulate, and is therefore regulatable as well.

    It will be interesting to see how it works out. Im not terribly invested in it either way. I just came across the article and thought it provided an interesting perspective on the impending oral arguments later this year.
  • JulietJuliet Posts: 49,774 Senior Member
    As the Supreme Court noted in Lopez, EVERYTHING has an economic impact. But that doesn't mean that Congress can therefore pass whatever laws it wants (in Lopez's case, that was no gun zones around schools) citing economic effects.


    I don't doubt that a mandate is needed to make it work and there are problems that need fixing (athough ACA won't fix rising costs). I don't doubt that my bills pay for those without insurance (although I bet that my bills really cover the indigent and elderly where government programs don't pay doctors and hospitals enough). But just because something good may be accomplished (e.g. lowering bills for those already in the system) doesn't make it constitutional.

    FWIW, the Congressional Research Office noted there were a lot of ways to do accomplish this through the tax system - e.g. change the rules so that non-participation would result in a loss of tax deductions for example. But the President promised that taxes wouldn't go up - which in turn limits the General Welfare argument.

    I gotta go.
  • fishingcomicfishingcomic Senior Member Posts: 26,153 Senior Member
    Steven wrote: »
    FWIW, the Congressional Research Office noted there were a lot of ways to do accomplish this through the tax system - e.g. change the rules so that non-participation would result in a loss of tax deductions for example.

    Isn't this essentially how the mandate is being enforced?
    'I've spoken of the Shining City all my political life. …In my mind it was a tall, proud city built on rocks stronger than oceans, windswept, God-blessed, and teeming with people of all kinds living in harmony and peace; a city with free ports that hummed with commerce and creativity. And if there had to be city walls, the walls had doors and the doors were open to anyone with the will and the heart to get here. That's how I saw it, and see it still.'" Ronald Reagan
  • JulietJuliet Posts: 49,774 Senior Member
    Isn't this essentially how the mandate is being enforced?

    Yes and no. :)

    The Obama Administration tells the country that the fine isn't a tax. But then it tells the courts that the fine is a tax.

    Meanwhile, even if it is a tax, it may not be constitutional since it may be considered an unapportioned direct tax.
  • JulietJuliet Posts: 49,774 Senior Member
    only Republicans are allowed to call a tax something else ... it's in the Bible
  • JulietJuliet Posts: 49,774 Senior Member
    Only Dems get a pass on talking out both sides of their mouths....it's in a Krugman editiorial in the New York Times.
  • JulietJuliet Posts: 49,774 Senior Member
    ya cuzz they are the only ones who ever doo'd it .. lil Ricky sezz so
  • JulietJuliet Posts: 49,774 Senior Member
    You're right, Dems aren't the only ones to do it....just the ones that get a pass.
  • JulietJuliet Posts: 49,774 Senior Member
    Steven wrote: »
    You're right, Dems aren't the only ones to do it....just the ones that get a pass.

    that's funny

    highly inaccurate but funny

    watch Faux News sometime ... not only does the double talking right get a pass the double talk itself get's 'amped' up in the process

    the first half of your post is the only accurate part
  • JulietJuliet Posts: 49,774 Senior Member
    This isn't even a hill I care about.

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