The Supreme Court & Obamacare

[crazy canuck]

My admittedly proletarian reading of the constitution would assume the opposite--that all laws carry with them the burden of positively asserting constitutionality. Where does this come from and why am I wrong?

You would have a very odd system indeed if the presumption was that all law was invalid until a court found otherwise.  The presumption is the other way around.

[The Minsky Moment]

Isn't the current question whether or not the mandate is proper?

Proper is being used in the thread in two senses.  In a common English language sense, one can ask whether the mandate is "proper" in the sense of whether it is constitutional - in that sense it addresses the ultimate question.

"Proper" is also being used in the narrower sense of what is entailed by the specific clause of the Constitution that gives Congress the power to enact any measure "Necessary and Proper" to achieve its other specifically enumerated powers.  McCullough holds that "Proper" in this sense is just a limitation on trying to use the N&P clause to end run around other prohibitions like the Bill of Rights.

[The Minsky Moment]

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..."

I apologize for the ambiguity in the statement.
What I meant is that even if the individual mandate in itself is not a regulation of commerce, it still can be within the power of Congress to enact if doing so is"plainly adapted" to effectuate the other parts of the law which are in themselves regulations of commerce.  And that statement would not be true if there were another part of the Constitution that forbid it.

[Berkut]

OK, thanks for the clarification.

[Admiral Yi]

So Joan, would it be fair to say that in your view the only real limit on Congress' power under the Commerce Clause is the Bill of Rights?

[The Minsky Moment]

So Joan, would it be fair to say that in your view the only real limit on Congress' power under the Commerce Clause is the Bill of Rights?

I wouldn't go that far.  The Supreme Court struck down laws on a Commerce Clause challenge in both Lopez and Morrison - namely that there has to be substantial and not attenuated effects on interstate commerce (as opposed to local).  The limitations that those cases impose on Congressional action would not be undone by upholding the mandate - to the extent the mandate is a regulation of commerce or Necessary and Proper to such regulation, the effects on interstate commerce are enormous and not attenuated.

On the flip side, I would present to you the following language:

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."  . . . [A]s the passage from Lopez quoted above suggests, Congress may regulate even noneconomic local activity if that regulation is a necessary part of a more general regulation of interstate commerce. See Lopez, supra, at 561. The relevant question is simply whether the means chosen are "reasonably adapted" to the attainment of a legitimate end under the commerce power. See Darby, supra, at 121.

That passage would fit quite nicely in a brief defending the mandate.

In fact it is a direct quotation of the concurring opinion of Justice Scalia in Gonzales v. Raich

[Admiral Yi]

OK.  Although I would like to point out that that test would serve to amplify rather than limit power.  Congress can regulate behavior, but only on the big things.

[Sheilbh]

My admittedly proletarian reading of the constitution would assume the opposite--that all laws carry with them the burden of positively asserting constitutionality. Where does this come from and why am I wrong?

You would have a very odd system indeed if the presumption was that all law was invalid until a court found otherwise.  The presumption is the other way around.

Yeah.  It would make every law somehow doubtful until a court had ruled that it was valid.  It would make the courts the predominant branch of the government.

One thing I was thinking today - and I know nothing about the US Constitution and the law - but if they rule that it's unconstitutional would it open up lots of other questions under the commerce clause?  Would it effect just this law or would there, in effect, be a new limit under the commerce clause for the Court to explain?

[MadImmortalMan]

I think the assertion is that the purchase requirement is something never done before and unprecedented, so I'd say there is little chance of it affecting any earlier legislation.

[Admiral Yi]

That's the way I see it.

[Kleves]

Would it effect just this law or would there, in effect, be a new limit under the commerce clause for the Court to explain?

If they strike it down, they will have to articulate why they struck it down. Their reasoning may or may not implicate other legislation.

[Sheilbh]

I think the assertion is that the purchase requirement is something never done before and unprecedented, so I'd say there is little chance of it affecting any earlier legislation.

Again I could be wrong but my understanding was that the orthodox constitutional view was that the commerce clause more or less allowed the Federal government to regulate any economic or social activity.  For example I understand that the Civil Rights Act involved a commerce clause argument and was upheld.  So the Federal government was allowed to dictate what individuals could do with their private property.  Similarly I believe consumer rights and environmental laws are underpinned by it.

So the argument against Obamacare isn't entirely that the requirement to purchase is a novel extension of the commerce clause, but that it's the Federal government creating an economic market to regulate.  It's not regulating economic or social activity, but inactivity, which is novel (that's what I got from a couple of the points Kennedy made anyway). 

Given that and the raft of rulings and regulations upheld and supported by the commerce clause I'm just unsure what the effect would be.  Presumably the Court would want to have quite a narrow ruling to minimise the chances of opening the floodgates and putting lots of legislation in doubt, but is that possible?  But it would still seem to leave a fair amount of room for challenges, which would then depend on lower courts' interpretations of the ruling in this case.  Is there a possibility this could start to limit the commerce clause a bit more generally?

I'm not saying this is a reason the Court should rule one way or the other.  I don't have an opinion and they should clearly rule in the way they believe to be constitutional, I'm just curious what the consequences would be beyond Obamacare itself.

[Admiral Yi]

What we're all saying Shelf is that there isn't any precedent for regulating inactivity so nothing to challenge if it is found that inactivity cannot be regulated under the Commerce Clause.

[The Minsky Moment]

What we're all saying Shelf is that there isn't any precedent for regulating inactivity so nothing to challenge if it is found that inactivity cannot be regulated under the Commerce Clause.

Shelbh mentioned the civil rights legislation, upheld on commerce clause grounds in Heart of Altanta Motel.  That was a regulation of refusing to engage in a commercial act.

[Admiral Yi]

Shelbh mentioned the civil rights legislation, upheld on commerce clause grounds in Heart of Altanta Motel.  That was a regulation of refusing to engage in a commercial act.

Running a motel is commercial activity.

Choosing to not open a motel would be inactivity.