House to vote on health care reform Sunday.

[Faeelin]

If one were to say otherwise, the entire system of federal commercial regulation would collapse (in the minds of some -- such as those backing these lawsuits - perhaps a desirable objective).  All that would be left would be direct regulations of the instrumentalities of commerce, because once recourse to the Necesary and Proper clause is blocked, that is all that is left of the Commerce Clause power.  Securities law, antitrust law, federal environmental law, most of federal criminal law, large swaths of civil rights law, etc. would all fall.

This won't overturn legislation I don't like, so I'm going to repeat the statement that you can't make nonactivity an activity.

More seriously, Yi, if you're interestesd in a libertarian take on the Constitution, I'd check out anything by Randy Barnett, especially his Presumption of Liberty.

[Admiral Yi]

The power to do all these things comes from the application of Necessary and Proper Clause to these enumerated powers.  The power to conduct a census would not be effective without the power to require citizens to respond.  The power to tax income would not be effective without the power to require citizens and business to report their income and provide other related information.  By the same token, the power to regulate commerce necessarily includes the power to impose mandates to help effectuate that regulation.  if you deny that power, you deny the others as well.

This is very convincing.

Would you happen to know the entire clause by heart, or have a link to it.  I would be interetested in reading it.

[Barrister]

The Congress shall have Power - To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.

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

[grumbler]

This is very convincing.

Would you happen to know the entire clause by heart, or have a link to it.  I would be interetested in reading it.

http://topics.law.cornell.edu/constitution is a kind of annotated index. 

Section 1.8 concluded that the Congress shall have the power "To make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the government of the United States, or in any department or officer thereof."

[stjaba]

Of course the decision to purchase Y instead of X is an economic activity - the nonpurchase of X is not an economic activity.

The Supreme Court has rejected this  sort of argument in the past. In the 1930s, in Wickard, the Supreme Court upheld a statute limiting how much wheat farmers could grow, even if farmers grew wheat for their own, personal use. Why? Because if you grow your own wheat, you won't buy wheat on the market. And even though growing wheat is obviously a local, not across state-lines type activity, the Court pointed out that interstate commerce is affected when you aggregate the activities of thousands of farmers. In Raich, the recent medical marijuana case, the Court followed very similar logic. And the test that the Government needs to pass is fairly easy: It doesn't even need to prove the regulation actually substantially affects interstate commerce, but rather that the the Congress would have a rational basis for concluding so. Arguably, this is a stretch of the commerce power, but the major recent cases in which the court struck down laws under the Commerce Clause involved purely noneconomic activity. Morrison was about gender-motivated violence, and Lopez was about guns in schools.

From Raich:

"We need not determine whether respondents' activities, taken in the aggregate, substantially affect interstate commerce in fact, but only whether a "rational basis" exists for so concluding. Given the enforcement difficulties that attend distinguishing between marijuana cultivated locally and marijuana grown elsewhere, 21 USC Sec. 801(5), and concerns about diversion into illicit channels, we have no difficulty concluding that Congress had a rational basis for believing that failure to regulate the intrastate manufacture and possession of marijuana would leave a gaping hole in the CSA. Thus, as in Wickard, when it enacted comprehensive legislation to regulate the interstate market in a fungible commodity, Congress was acting well within its authority to 'make all Laws which shall be necessary and proper' to 'regulate Commerce...among the several States.'"

If regulation of medicinal marijuana falls within the commerce power, it is hard to believe that medical insurance wouldn't.

[grumbler]

Also, US v Felger makes it clear that regulating commerce under the commerce clause isn't limited to regulating commercial activity itself: "But this mistakenly assumes that the power of Congress is to be necessarily tested by the intrinsic existence of commerce in the particular subject dealt with, instead of by the relation of that subject to commerce and its effect upon it."  Non-commercial subjects (in the case of Folger, the non-sale of goods) can still be regulated as part of a larger effort to regulate interstate commerce, where such would impact interstate commerce.

[Razgovory]

So nobody thinks that Hans has a leg to stand on here?

[Cecil]

So nobody thinks that Hans has a leg to stand on here?

Does he ever?

[MadImmortalMan]

These things always seem like logical acrobatics to me. I was never cut out to be a lawyer. AFAIK the purpose of the law is to provide medical care, not regulate interstate commerce.

[Grallon]

These things always seem like logical acrobatics to me. I was never cut out to be a lawyer. AFAIK the purpose of the law is to provide medical care, not regulate interstate commerce.

  That *is* its purpose - but this discussion has left the realm of common sense some time ago in order to dive into ideological quagmires and logical loopholes.




G.

[grumbler]

These things always seem like logical acrobatics to me. I was never cut out to be a lawyer. AFAIK the purpose of the law is to provide medical care, not regulate interstate commerce.

The Constitution grants the federal government no power to regulate health care.  Since the government has only the powers granted by the Constitution, if health care is not part of interstate commerce (*or something else over which the government has power), the federal government would have no power to regulate it.

So, yes, the purpose of the bill is to provide medical care, but Congress cannot just pass bills as it sees fit.  It can only do so within its narrow constitutional mandate.

[MadImmortalMan]

The Constitution grants the federal government no power to regulate health care.  Since the government has only the powers granted by the Constitution, if health care is not part of interstate commerce (*or something else over which the government has power), the federal government would have no power to regulate it.

So, yes, the purpose of the bill is to provide medical care, but Congress cannot just pass bills as it sees fit.  It can only do so within its narrow constitutional mandate.

Yeah, I know. It just feels sleazy to me. Starting with the end and working backward to find the authority. It's like starting with a conclusion and then looking for evidence to support it. I'd rather just pass an amendment saying congress shall provide health care. I'm an engineer at heart I suppose, not a politician. 

[Eddie Teach]

So nobody thinks that Hans has a leg to stand on here?

Does he ever?

I thought Ed was the only paraplegic on the forum.

[The Minsky Moment]

These things always seem like logical acrobatics to me.

That is a valid objection.  There has always been a tension between the idea of a restrictive versus expansive interpretation of enumerated powers.  Marshall tended to push a more expansive interpretation, but gilded age courts were far more restrictive. From the early 30s to the 90s, the Court strongly pushed an expansive interpretation.  Since then there has been a backlash but only a very moderate one.  Justice Scalia's concurring opinion in Raich (that is the medical marijuana case referred to several times here) indicates that that even the conservative wing of the Court is not inclined to turn back the clock in giving a generous interpretation to federal authority, only to block the worst excesses.

Of course one could take a different view, but it would require a radical reorientation of the constitutional system and a repeal of the majority of the United States Code.

[The Minsky Moment]

Also, US v Felger makes it clear that regulating commerce under the commerce clause isn't limited to regulating commercial activity itself: "But this mistakenly assumes that the power of Congress is to be necessarily tested by the intrinsic existence of commerce in the particular subject dealt with, instead of by the relation of that subject to commerce and its effect upon it."  Non-commercial subjects (in the case of Folger, the non-sale of goods) can still be regulated as part of a larger effort to regulate interstate commerce, where such would impact interstate commerce.

Not familiar with that case, but this does remind me that boycotts and refusal to deal can give rise to antitrust liability under federal law . . .