The Supreme Court & Obamacare

[Ideologue]

Ah, that sounds like a good idea.

[DGuller]

You guys are crazy to bet on this.  You might as well just flip coins.

I bet 2-1 that I can flip a head.  You in?

[Phillip V]

And after all the beating Romney has taken for basically being the the guy who came up with Obamacare, he wouldn't dare bring up a major health care overhaul.

Romney has taken a beating for Romneycare in the Republican primaries. After he gets elected, I doubt he will care about his past beatings, just like he worked with his past nemesis Senator Kennedy to bring universal healthcare to Massachusetts less than six years ago.

[11B4V]

He wont get elected.

[Berkut]

I keep hearing people say that Obamacare cannot work without the mandate.

Now, if that is true or not, is it at all relevant to whether or not the mandate is Constitutional? If we assume that it is true, for example, that doesn't make it acceptable, right? The Constitutional restriction of limited government powers is not simply removed or set aside because some law won't work if we don't give the federal government powers otherwise not enumerated to it.

I don't really understand that argument's applicability to the question.

[alfred russel]

Romney has taken a beating for Romneycare in the Republican primaries. After he gets elected, I doubt he will care about his past beatings, just like he worked with his past nemesis Senator Kennedy to bring universal healthcare to Massachusetts less than six years ago.

Because he is going to win a hypothetical reelection in 2016 after alienating team republican?

It wouldn't be like Massachusetts because national republicans are more conservative and also can win elections without running pseudo democrats. Also, democrats will tolerate a liberal republican governor a lot more than a president. There are too many patronage positions in the federal government, too many jobs requiring you to scream at republicans, and too much money to be raised by hating on the other side. The outrage cycle demands the other guy to be outrageous, no matter what he does.

[Valmy]

I keep hearing people say that Obamacare cannot work without the mandate.

Now, if that is true or not, is it at all relevant to whether or not the mandate is Constitutional? If we assume that it is true, for example, that doesn't make it acceptable, right? The Constitutional restriction of limited government powers is not simply removed or set aside because some law won't work if we don't give the federal government powers otherwise not enumerated to it.

I don't really understand that argument's applicability to the question.

It does get a little annoying how expediency is supposed to influence decisions like this.  "How can we fight terrorism with the 4th amendment" or whatever.  Um the Constitution was not made to be convenient.

[DGuller]

I keep hearing people say that Obamacare cannot work without the mandate.

Now, if that is true or not, is it at all relevant to whether or not the mandate is Constitutional? If we assume that it is true, for example, that doesn't make it acceptable, right? The Constitutional restriction of limited government powers is not simply removed or set aside because some law won't work if we don't give the federal government powers otherwise not enumerated to it.

I don't really understand that argument's applicability to the question.

No, it's not relevant.  Is anyone saying that it is relevant, in regard to constitutionality?

[Barrister]

I keep hearing people say that Obamacare cannot work without the mandate.

Now, if that is true or not, is it at all relevant to whether or not the mandate is Constitutional? If we assume that it is true, for example, that doesn't make it acceptable, right? The Constitutional restriction of limited government powers is not simply removed or set aside because some law won't work if we don't give the federal government powers otherwise not enumerated to it.

I don't really understand that argument's applicability to the question.

At least up here if you are challenging the constitutional validity of a section, looking at how it is connected to both the intended purpose of the legislation, and whether it is necessary to meet that purpose, would very much be a part of the analysis.

[alfred russel]

I keep hearing people say that Obamacare cannot work without the mandate.

Now, if that is true or not, is it at all relevant to whether or not the mandate is Constitutional? If we assume that it is true, for example, that doesn't make it acceptable, right? The Constitutional restriction of limited government powers is not simply removed or set aside because some law won't work if we don't give the federal government powers otherwise not enumerated to it.

I don't really understand that argument's applicability to the question.

I don't get the fetish regarding this stuff. The Constitution is a document written in the 18th century and is ambiguous on a bunch of stuff, including this.

We certainly don't interpret the constitution as it was applied when it was written. I understand about the time the first amendment was passed congress was printing bibles to help convert the indians. All sorts of nasty things existed that we want no part of.

We certainly don't interpret the constitution based strictly on the wording. I brought this up a while back, regarding the prohibition on "cruel and unusual" punishment. The conjunctive phrase is "and". As such, just based on the wording so long as a punishment is universal (say death for shoplifting) it would seem to pass this test.

If we look to the constitition as a living document, why can't it evolve to allow Obamacare? If it is an aspirational document, why can't we aspire to have universal health care?

[CountDeMoney]

We certainly don't interpret the constitution based strictly on the wording.

There's four on the bench that think otherwise.

[alfred russel]

We certainly don't interpret the constitution based strictly on the wording.

There's four on the bench that think otherwise.

There's four on the bench that think otherwise when it suits their purposes, imo.

[CountDeMoney]

We certainly don't interpret the constitution based strictly on the wording.

There's four on the bench that think otherwise.

There's four on the bench that think otherwise when it suits their purposes, imo.

And this week just happens to be one of them.

[Berkut]

If we look to the constitition as a living document, why can't it evolve to allow Obamacare? If it is an aspirational document, why can't we aspire to have universal health care?

I am far from a strict literalist when it comes to the Constitution. But at some point it has to mean SOMETHING, right? Otherwise why even have it?

And fundamentally, the very basic purpose of the thing is to define what the government can and cannot do, and what powers the federal government has - surely *mandating* that people engage in a particular activity very much gets to the fundamentals of what the Constitution has to say about our government. This is not a vague interpretation issue about what some particular words mean under some context. This is a debate about whether the federal government does in fact have the power to force people to act in a particular manner.

This is as fundamental as it gets - if the Constitution is "soft" enough that we can say the federal government has powers that are not enumerated in it, then we are saying we don't have a Constitution at all. Now, I do think you can make some arguments that the Constitution as it exists now (and that includes its implicit modification via previous rulings) does in fact include the power to madate this via the Commerce clause. Personally, I fucking hate that damn thing, since apparently it seems to mean that Congress can do anything they want as long as someone somewhere steps over a state line, but at least the argument can be made.

What I don't accept is the implication that since Obamacare requires a mandate, that should somehow be considered in whether the USSC should find it constitutional. That only speaks to whether the law in question is necessary, not whether it is proper.

[The Minsky Moment]

I keep hearing people say that Obamacare cannot work without the mandate.

Now, if that is true or not, is it at all relevant to whether or not the mandate is Constitutional? If we assume that it is true, for example, that doesn't make it acceptable, right? The Constitutional restriction of limited government powers is not simply removed or set aside because some law won't work if we don't give the federal government powers otherwise not enumerated to it.

That was a question addressed a very long time ago in McCulloch v. Maryland by Marshall:

Among the enumerated powers, we do not find that of establishing a bank or creating a corporation. But there is no phrase in the instrument which, like the articles of confederation, excludes incidental or implied powers; and which requires that everything granted shall be expressly and minutely described . . .Although, among the enumerated powers of government, we do not find the word "bank" or "incorporation," we find the great powers, to lay and collect taxes; to borrow money; to regulate commerce . . .  The government which has a right to do an act, and has imposed on it, the duty of performing that act, must, according to the dictates of reason, be allowed *to select the [*410 means; and those who contend that it may not select any appropriate means, that one particular mode of effecting the object is excepted, take upon themselves the burden of establishing that exception  . . . [T] the sound construction of the constitution must allow to the national legislature that discretion, with respect to the means by which the powers it confers are to be carried into execution . . .  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.

Over 150 years later in Hodel v. Indiana, the Supreme Court in a opinion signed on to by 8 justices, echoed the McCulloch rationale in addressing this very issue:

A complex regulatory program such as established by the Act can survive a Commerce Clause challenge without a showing that every single facet of the program is independently and directly related to a valid congressional goal. It is enough that the challenged provisions are an integral part of the regulatory program and that the regulatory scheme when considered as a whole satisfies this test.

With that in mind, I would turn your question on its face.  There is no question that taken as a whole, the ACCA constitutes a regulation of interstate commerce under any possible rational post-1934 construction of that term.  Given that fact, why should it be a valid procedure to carve out and cherry pick individual pieces of a single comprehensive piece of legislation and test them under the Commerce Clause requirement as though they were free-standing and independent laws?  The simple fact is that the mandate is not free-standing and independent. It is an integral part of a single regulatory scheme and its specific purpose is to make that scheme work as designed.  To use the terms of McCulloch, it is the means employed to achieve a legitimate regulatory end, and one necessary and proper to that end.