The Supreme Court & Obamacare

[stjaba]

From a common sense perspective, Clive Crook makes this point very well, it does seem odd that a taxpayer funded national health service probably would be constitutional (like Social Security, Medicare and Medicaid) but that the more liberal, less statist alternative isn't.  It particularly seems odd that that's somehow a consequence of limited Federal power. 

I don't understand this objection at all.

The means matter. Just because you can imagine some alternative that would not violate this particular issue, but could be considered more generally "less liberal", doesn't make this particular violation any less of a violation.

And that is precisely what the Administration should do - come up with a way of doing this without violating the Constitution. If it can be done in s manner that is NOT a violation, then do so.

From a legal perspective you're correct. But the reason why the constitution listed enumerated powers for the federal government was to limit its power. It's an odd result that the means giving MORE power to the federal government is constitutional while the less statist option isn't.

[Berkut]

From a common sense perspective, Clive Crook makes this point very well, it does seem odd that a taxpayer funded national health service probably would be constitutional (like Social Security, Medicare and Medicaid) but that the more liberal, less statist alternative isn't.  It particularly seems odd that that's somehow a consequence of limited Federal power. 

I don't understand this objection at all.

The means matter. Just because you can imagine some alternative that would not violate this particular issue, but could be considered more generally "less liberal", doesn't make this particular violation any less of a violation.

And that is precisely what the Administration should do - come up with a way of doing this without violating the Constitution. If it can be done in s manner that is NOT a violation, then do so.

From a legal perspective you're correct. But the reason why the constitution listed enumerated powers for the federal government was to limit its power. It's an odd result that the means giving MORE power to the federal government is constitutional while the less statist option isn't.

Well, that is because long ago the idea that enumerated powers were strict and explicit was ditched in favor of it being rather vague and, to be honest, meaningless. The alternative to a mandate and this structure is seen as single player, where the federal government just taxes everyone and uses the funds. That is pretty arguably not remotely within the enumerated powers either, but that argument was made and lost a long time ago.

[Sheilbh]

I don't understand this objection at all.

The means matter. Just because you can imagine some alternative that would not violate this particular issue, but could be considered more generally "less liberal", doesn't make this particular violation any less of a violation.

And that is precisely what the Administration should do - come up with a way of doing this without violating the Constitution. If it can be done in s manner that is NOT a violation, then do so.

Yeah you're right, if that's the way the case goes, in legal terms.  It just seems very odd that the consequence of 'limiting' Federal power is that the government has to go all or nothing on any social welfare programmes.  Whatever your view I think it's fair that a private insurance basis for healthcare, albeit with a mandate, is less intrusive and more liberal than a system run by the state.  So in legal terms the court may be restricting the powers of the Federal government, in pure political terms the consequence will probably be a larger role for the Federal government in years to come.

Would private account social security pass muster?

[Razgovory]

The free rider problem goes away when the penalty for free riding is death. 

I think quite a few people would ignore that-- or would lazily assume they'd still get emergency treatment somehow, somewhere.

Or may not have enough money to buy it.

[MadImmortalMan]

Would private account social security pass muster?

If 5 justices say so, anything goes.

[Sheilbh]

Well, that is because long ago the idea that enumerated powers were strict and explicit was ditched in favor of it being rather vague and, to be honest, meaningless. The alternative to a mandate and this structure is seen as single player, where the federal government just taxes everyone and uses the funds. That is pretty arguably not remotely within the enumerated powers either, but that argument was made and lost a long time ago.

That the point Crook goes on to make:

Now of course you can ask whether the Court has been right over the years to use the Commerce Clause to turn the Constitution inside out and dissolve the limits on the economic power of the federal government. That's not an easy question but on the whole I think it has in fact been right. The world has changed, and what we expect of the government has changed. The Constitution had to change as well, and that could be done either by amending it explicitly or having the Court draw on all its reserves of ingenuity and rewrite it judgement by judgement. In America, the Constitution is a quasi-religious document. Its constancy is an inviolable national myth. Changing it therefore falls to the Court and must be done by stealth, with a certain suspension of disbelief on the part of the citizenry. The big disadvantage of amendment by jurisprudence is that it takes an unavoidably political task out of politics and gives it to unelected judges. Obviously, that's also its big advantage.

Whether we like the way the Constitution has been rewritten is beside the point. The thing is, it has been. The Court has all but erased the limits on the economic power of the federal government. So let's not pretend that striking down the mandate would be a victory of principle rather than just a huge embarrassment for the White House, or that upholding it would mark a big new advance of government power. Politically, it matters. Constitutionally, it's a tremendous fuss about not very much.

[Admiral Yi]

Joan: it's really a stretch to call limitation of the enumerated powers analogous to the Warren court's discovery of uterine privacy.  Just because successive decisions have tended to push out the borders of the Commerce Clause doesn't mean that there is not nor should be a limit on their scope.  We've also got the reinforcing language of the 10th Amendment, Timmy's personal favorite.

[dps]

The free rider problem goes away when the penalty for free riding is death. 

I think quite a few people would ignore that-- or would lazily assume they'd still get emergency treatment somehow, somewhere.

Or may not have enough money to buy it.

Which, from a policy (as opposed to Constitutional) perspective, is one of the main problems with the mandate.  People who supposedly can't afford health insurance now are going to be compelled to purchase health insurance or pay a penalty, but aren't being provided with any additional means with which to make the purchase.

[jimmy olsen]

Joan: it's really a stretch to call limitation of the enumerated powers analogous to the Warren court's discovery of uterine privacy.  Just because successive decisions have tended to push out the borders of the Commerce Clause doesn't mean that there is not nor should be a limit on their scope. We've also got the reinforcing language of the 10th Amendment, Timmy's personal favorite.

What?

[Admiral Yi]

Which, from a policy (as opposed to Constitutional) perspective, is one of the main problems with the mandate.  People who supposedly can't afford health insurance now are going to be compelled to purchase health insurance or pay a penalty, but aren't being provided with any additional means with which to make the purchase.

I'm pretty sure the law includes subsides for low income people.

[The Minsky Moment]

Joan: it's really a stretch to call limitation of the enumerated powers analogous to the Warren court's discovery of uterine privacy.  Just because successive decisions have tended to push out the borders of the Commerce Clause doesn't mean that there is not nor should be a limit on their scope.  We've also got the reinforcing language of the 10th Amendment, Timmy's personal favorite.

If the commerce clause decisions have gone "too far" then the solution is to overrule them.  But my question to kennedy and Scalia would then be: why all the concern now when you had no problem with the same concepts a few years ago in Raich?

The 10th doesn't have reinforcing language, if the powers in question are within the scope of enumerated federal power, then the 10th doesn't come into play.

[Admiral Yi]

If the commerce clause decisions have gone "too far" then the solution is to overrule them.  But my question to kennedy and Scalia would then be: why all the concern now when you had no problem with the same concepts a few years ago in Raich?

I thought you said Scalia concurred on Raich.  Did I get that wrong?  (D'oh, never mind.)

But the answer seems pretty simple to me: regulating the growing of pot for personal use is a different concept than regulating existence.

The 10th doesn't have reinforcing language, if the powers in question are within the scope of enumerated federal power, then the 10th doesn't come into play.

Exactly. IF it's within the scope.  Whereas before you were claiming that limitations on the scope were a "broad over-arching principle" analogous in the degree to which they derive directly from the text to Roe v. Wade.

[Ideologue]

I don't understand this objection at all.

The means matter. Just because you can imagine some alternative that would not violate this particular issue, but could be considered more generally "less liberal", doesn't make this particular violation any less of a violation.

And that is precisely what the Administration should do - come up with a way of doing this without violating the Constitution. If it can be done in s manner that is NOT a violation, then do so.

Yeah you're right, if that's the way the case goes, in legal terms.  It just seems very odd that the consequence of 'limiting' Federal power is that the government has to go all or nothing on any social welfare programmes.  Whatever your view I think it's fair that a private insurance basis for healthcare, albeit with a mandate, is less intrusive and more liberal than a system run by the state.  So in legal terms the court may be restricting the powers of the Federal government, in pure political terms the consequence will probably be a larger role for the Federal government in years to come.

Hm.

Death to Obamacare.

I've got time.  I can wait.

[Capetan Mihali]

the Warren court's discovery of uterine privacy.

Burger Court's.   

[Ideologue]

Meat is murder, dude.