The Supreme Court & Obamacare

[DontSayBanana]

Not quite.

First asnwer is, as mentioned, that car insurance is a state matter.

But even then you have the option to own a car, yet not have insurance.  You 'merely' can't use it on any public road or highway.

Fair enough.

[jimmy olsen]

I skimmed this thread and saw nothing on this, so I'll go ahead and ask it. How is it unconstitutional to require health insurance, but not unconstitutional to require car insurance? Is it because that's done state-by-state, or am I missing something else entirely?

STATEZ WIGHTS.

The North Shall Rise Again!

[Admiral Yi]

Okay, so the Supreme Court should amend the Obamacare to give GOPtards an option of never utilizing an emergency room without insurance and we can let them die in the waiting room when they show up anyway.  Win-win! 

You still have the problem in this scenario of no mandated premiums to subsidize pre-existing conditions.

[The Minsky Moment]

But that's one of the beauties of the system: sympathies have to be justified.

But justifications are not hard to come by for people who reached their position in life in part by being very, very good at concocting reasons to support a position (and yes, I realize I am echoing the same berkutian sentiment I criticized in the other thread).

[Berkut]

But that's one of the beauties of the system: sympathies have to be justified.

But justifications are not hard to come by for people who reached their position in life in part by being very, very good at concocting reasons to support a position (and yes, I realize I am echoing the same berkutian sentiment I criticized in the other thread).

Hey yeah, wait just one damn minute here!

[The Minsky Moment]

The RNC apparently is now running on ad attacking Obamacare that features a doctored version of the opening of the Solicitor General's argument:

http://go.bloomberg.com/health-care-supreme-court/2012-03-29/gop-ad-uses-doctored-scotus-audio/

All class, all the way. 

[stjaba]

As a general question, do most federal criminal laws on things like carjacking, kidnapping, etc., fall under the Commerce Clause?

As JR mentioned, yes. Even the felon in possession of firearm law is justified under the Commerce Clause. The statute requires that the firearm traveled through interstate commerce. As a result, when those cases go to trial, the government has to produce an expert (typically an ATF or FBI agent) who specializes in identifying where firearms are manufactured to prove that the firearm actually do move through interstate commerce.

[stjaba]

OK.  Wonder why that case wasn't cited in oral arguments.

It featured prominently in the briefing.  The Solicitor General probably realized that the justices didn't need elaborate explanation because most the justices were on the Court when it was decided.

The hard reality is that there are certain justices who are likely to be more sympathetic to a federal law enforcement effort to control marijuana use than what some might characterize as a hubristic exercise in social engineering.

While it's easy to be cynical, in Raich, three conservatives (O'Connor, Rehnquist, and Thomas) all dissented.

[grumbler]

Okay, so the Supreme Court should amend the Obamacare to give GOPtards an option of never utilizing an emergency room without insurance and we can let them die in the waiting room when they show up anyway.  Win-win! 

You still have the problem in this scenario of no mandated premiums to subsidize pre-existing conditions.

Actually, you wouldn't.  People would generally buy insurance of they knew the consequence for not having it and needing it was death.  Those who decide not to get insurance right now do so because they know that there is a "safety net" that will catch them even if they leave themselves no way to actually afford the care they need.

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

[derspiess]

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. 

[The Minsky Moment]

While it's easy to be cynical, in Raich, three conservatives (O'Connor, Rehnquist, and Thomas) all dissented.

But Kennedy voted yes.  And Scalia concurred, and gave a very broad reading of the N&P clause to uphold the law.  IMO that puts him in an impossible position from a principled perspective.

Some of my comments in this thread have been harsh.  In truth, I do think there is something about the mandate that just seems over-reaching.  It doesn't feel like a government of limited powers should be able to go that far in terms of telling people what to do.

But constitutional interpretation isn't supposed to be about what "seem" or "feels" right, particularly for those more inclined to "conservative" or restrained jurisprudential principles.  And the problem for opponents is that if one takes McCulloch and the Raich concurrence seriously, there doesn't seem any valid textual basis to strike down this law, regardless of how one resolves the theological question of whether a purchase mandate is Commerce.  The obsessive search for "Limiting Principles" is not driven by the Constitutional text, but by the preoccupations of a particular man, by the name of Anthony Kennedy.  It might very well by true that in the 21st century, where virtually every activity that a person engages in has both an interstate and commercial nexus, that the combination of the Commerce Power with the N&P Clause leaves precious little area beyond the scope of possible federal action (beyond the explicit prohibitions of the Bill of Rights etc)  If that is so, and it is considered a negative development, then it seems to me the only solution is either to amend the Constitution, or confront the problem openly and start overruling or severely limiting vast swaths of the Court's well-established precedents, including McCulloch and the New Deal era commerce cases.

That's not going to happen, so what's left for those who would strike the law down is sleight of hand.  Take the McCulloch/Raich analysis: the ACCA taken as a whole falls easily within the Commerce power (not contested) and the mandate is a measure "plainly adapted" to effectuate it (also uncontestable and indeed trumpeted by Clement in the severability phase of the argument).  So the mandate can only be struck down if it is "improper" (i.e. otherwise violating some other constitutional prohibition) but there is nothing in the constitutional text that anyone can point to that affirmatively prohibits it.  What is left is to grasp onto some inconsistency with what Marshall referred to in McCulloch as the "spirit of the constitution".   And sure enough, Justice Scalia tipped that hand quite in oral argument, suggesting the mandate is improper because it offends the "constitituional principle that the Federal government is a government of enumerated powers."  But that principle is effectuated in the text by the actual enumeration of power, and using Scalia's own analysis in Raich, the mandate is a valid means for carrying out an enumerated power.  So it seems all that is left is the argument that nonetheless the mandate offends the "spirit" of the notion of limited government.

My question then is: where is the limiting principle in that?  Striking down a concrete law by referencing a broad over-arching principle smacks of the kind of penumbral reasoning like the Warren court used to engage in that drove conservatives batty.  Or on the flip side, Lochner era substantive due process.  Why exactly is the mandate such an unforgivable offense to fundamental principles of federalism and limited federal power, while having the FBI muscle out state law enforcement to police some guy growing a bit of weed in window planter perfectly OK?  What exactly is the test for determining when Congress has gone too far against the "spirit" of the principle of limited federal government?  Perhaps the Court will provide clear and precise answers in their opinion.  But I ain't holding my breath.

[Sheilbh]

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. 

[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 was just going to post this as well. I wonder whether the push to litigate against Obamacare would have gotten as much support if the Democrats had retained a strong majority in Congress.

[CountDeMoney]

I wonder whether the push to litigate against Obamacare would have gotten as much support if the Democrats had retained a strong majority in Congress.

No, I don't think that would've mattered in challenging it before the courts.

[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.