The Supreme Court & Obamacare

[Admiral Yi]

That isn't quite accurate as a blanket statement.

It isn't at all accurate if you interpret "it's their job" as "it's their sole job."

[Berkut]

In other words, if you can Constitutionally force me to buy insurance as long as you argue that it is necessary in order to regulate the health industry, then you can Constitutionally force me to testify against myself, or throw me in jail if I speak out against your health care plan, as long as you make the case that doing so is necessary in order to make your otherwise COnsitutional plan work.

No you couldn't.  Even if Congress could come up with some rationale for why forcing people to testify against themselves is a "necessary" means for achieving some regulatory purpose within the scope of federal enumerated powers, it wouldn't be "proper" because the 5th Amendment forbids it.   That's a big reason why we have a Bill of Rights, because even the founding generation understood that simply putting limits on enumerated powers might not be sufficient to protect key rights.

But you said that it doesn't matter if it is proper, as long as it is only a part of an overall larger goal that IS proper.

Isn't this exactly what is being argued here - that the mandate portion is not proper?

I am definitely confused now - I thought your argument was that it didn't matter if some part was proper as long as the whole was proper and that part was deemed necessary to the whole.

[CountDeMoney]

I am definitely confused now -

Sounds like you're qualified to become Solicitor General then. 

[The Minsky Moment]

That isn't quite accurate as a blanket statement.

It isn't at all accurate if you interpret "it's their job" as "it's their sole job."

It's a small part of their job and there has been controversy about whether it should be part of the job at all.  Questioning whether judicial review can be deemed activism because courts in fact do it begs the questions of whether they should be in the business of doing it in the first place and whether if they are in that business, they should approach it in a conservative, restrained manner.

[Admiral Yi]

Sounds like you're qualified to become Solicitor General then. 

Sounds like someone read the transcript after their FIVETOFOURFIVEFOUR ACORNACORN rant.

[CountDeMoney]

Sounds like you're qualified to become Solicitor General then. 

Sounds like someone read the transcript after their FIVETOFOURFIVEFOUR ACORNACORN rant.

 

[Barrister]

In other words, if you can Constitutionally force me to buy insurance as long as you argue that it is necessary in order to regulate the health industry, then you can Constitutionally force me to testify against myself, or throw me in jail if I speak out against your health care plan, as long as you make the case that doing so is necessary in order to make your otherwise COnsitutional plan work.

No you couldn't.  Even if Congress could come up with some rationale for why forcing people to testify against themselves is a "necessary" means for achieving some regulatory purpose within the scope of federal enumerated powers, it wouldn't be "proper" because the 5th Amendment forbids it.   That's a big reason why we have a Bill of Rights, because even the founding generation understood that simply putting limits on enumerated powers might not be sufficient to protect key rights.

So just a few posts above Berkut said:

And since we don't differentiate between the federal government taking on powers not enumerated to them and them violating basic civil rights, they can do the latter as easily as the former.

to which I expressed my scepticism.

Minsky appears to confirm my skepticism by saying that you do in fact differentiate between debates on enumerated powers, and debates on basic civil rights.

[Habbaku]

I am definitely confused now -

Sounds like you're qualified to become Solicitor General then. 

[Berkut]

In other words, if you can Constitutionally force me to buy insurance as long as you argue that it is necessary in order to regulate the health industry, then you can Constitutionally force me to testify against myself, or throw me in jail if I speak out against your health care plan, as long as you make the case that doing so is necessary in order to make your otherwise COnsitutional plan work.

No you couldn't.  Even if Congress could come up with some rationale for why forcing people to testify against themselves is a "necessary" means for achieving some regulatory purpose within the scope of federal enumerated powers, it wouldn't be "proper" because the 5th Amendment forbids it.   That's a big reason why we have a Bill of Rights, because even the founding generation understood that simply putting limits on enumerated powers might not be sufficient to protect key rights.

So just a few posts above Berkut said:

And since we don't differentiate between the federal government taking on powers not enumerated to them and them violating basic civil rights, they can do the latter as easily as the former.

to which I expressed my scepticism.

Minsky appears to confirm my skepticism by saying that you do in fact differentiate between debates on enumerated powers, and debates on basic civil rights.

But just a few posts above that Minsky said:

The argument then is that regardless of whether the individual mandate is constitutional in itself as regulation of commerce, it is nonetheless still constitutional because it is necessary and proper to effectuate the rest of ACC

Can we not replace "individual mandate" with "force to testify against yourself" in his statement?

Saying that "it is different' doesn't make it so. The Bill of Rights does not say that the 5th is somehow more special than the 10th.

[The Minsky Moment]

But you said that it doesn't matter if it is proper, as long as it is only a part of an overall larger goal that IS proper.

Isn't this exactly what is being argued here - that the mandate portion is not proper?

I am definitely confused now - I thought your argument was that it didn't matter if some part was proper as long as the whole was proper and that part was deemed necessary to the whole.

"Necessary" means that the measure in question is reasonably oriented towards achieving the objective set forth by Congress, and the objective has to be within enumerated powers (like regulation of IC)

"Proper" means that the measure in question doesn't otherwise violate the Constitution.

Using the McCullough example - the act of chartering a state law corporation may not in itself be interstate commerce, but it is "necessary" in that it facilitates the objective of regulating interstate commerce.  It is "proper" because the act of chartering a corporation does not otherwise violate any constitutional prohibition. 

Now let's imagine a hypothetical where Congress in 1816 decided to effectuate the interstate transfer of federal revenues by enacting legislation permitting federal officers to commandeer and seize private conveyances without compensation to carry specie or notes across state lines.  Now that would still be "necessary" in the McCullough sense of being enacted for the purpose of effectuating a valid Congressional purpose.  But it would not be proper because uncompensated takings of private property are forbidden by the 5th amendment.

[Berkut]

Isn't the current question whether or not the mandate is proper? I thought you were arguing that it did not matter if it was or not. That it could in fact be unconstitutional on its own, (ie not proper) but as long as it was necessary, then it did not matter.

The argument being made is that the state does not have the power to mandate that private citizens purchase health coverage - that it is not in fact proper. I can understand the argument that it is in fact proper, I do not understand the argument that it isn't even a valid question to be raised.

I appreciate your helping explain this, btw. I don't think CC and Beebs understand the point either though - I don't think this has anything to do with there being a difference in how the Court does or should treat one Bill of Right vice another.

[The Minsky Moment]

Marshall's famous formulation actually sets that out elegantly if you parse it out.  ". Let the end be legitimate, let it be within the scope of the constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the constitution, are constitutional"

So, the requirements for an act to be constitutional are:
1.  The ultimate "end" or objective must be within the scope of the enumerated powers under the Constitution,
2.  The means selected by Congress must be "plainly adapted to that end," and
3.  The means selected by Congress are not otherwise prohibited by the Constitution.

Satisfy all 3 and you are clear.  So the "testify against yourself law" wouldn't work because even if it somehow satisfied 1 and 2, it would fail 3.

[Berkut]

Marshall's famous formulation actually sets that out elegantly if you parse it out.  ". Let the end be legitimate, let it be within the scope of the constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the constitution, are constitutional"

So, the requirements for an act to be constitutional are:
1.  The ultimate "end" or objective must be within the scope of the enumerated powers under the Constitution,
2.  The means selected by Congress must be "plainly adapted to that end," and
3.  The means selected by Congress are not otherwise prohibited by the Constitution.

Satisfy all 3 and you are clear.  So the "testify against yourself law" wouldn't work because even if it somehow satisfied 1 and 2, it would fail 3.

OK, I get that.

That is how I thought it always worked.

So why is there an argument, put forth by you (I thought) that the current debate is not legitimate, because it did not matter if the mandate was unconstitutional - that effectively 3 does not apply?

"The argument then is that regardless of whether the individual mandate is constitutional in itself as regulation of commerce, it is nonetheless still constitutional because it is necessary and proper to effectuate the rest of ACC..."

[Admiral Yi]

Just checked Intrade, latest price is 63.9 (+8.9).  Does the price equate to a straight percentage, or do you need to do some kind of transformation to derive a percentage chance?

[DGuller]

Just checked Intrade, latest price is 63.9 (+8.9).  Does the price equate to a straight percentage, or do you need to do some kind of transformation to derive a percentage chance?

Yes, the price as you state it is equal to the odds.  If it's in dollars, then you have to multiply by 10 (since one share is $10, not $100).