The Supreme Court & Obamacare

[Syt]

Meat is murder, dude.

Delicious, tasty murder.

[Ideologue]

There's a Justice Frankfurter too.  Unfortunately they were not contemporaries.

[Razgovory]

Meat is murder, dude.

I didn't think murder was really problem with you.  Would meat be more acceptable if it was slaughter humanely by a B-52 bomber?

[The Minsky Moment]

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

You've could have made it as a lawyer.     You've got down the first move when legal precedent is against you - argue that the factual circumstances differ.  Of course they do (they always do) but the question is whether they differ in a way that is material with respect to the legal categories at issue.  In Raich growing of pot for personal use was deemed to be within the Commerce Power not because the act of growing could iteself be characterized as commerce, but because of the effects of that practice on the broader interstate trafficking in drugs (though its alleged effect on overall demand) - thus "When Congress decides that the  'total incidence'  of a practice poses a threat to a national market, it may regulate the entire class."  On this rationale, it isn't clear how the mandate can be meaningfully distinguished factually, because clearly the practice at which it aims (refusal of certain categories to purchase health insurance) has clear and very significant effects on the national market.

The weakness of the distinction is even more apparent when one turns to the second rationale for constitutionality - under the Necessary & Proper clause.  Because to be N&P all that needs to be shown is that the measure facilitates some other valid regulation of commerce.  Here it seems the case for the mandate is much stronger than the case for the drug regulation in Raich.  Because while regulating growing small amounts for purely personal use may be a useful adjunct to a broader anti-drug policy, it is easy to imagine a workable set of anti-trafficking measures without that kind of rule.  On the other hand, there seems to be agreement that the community rating and access provisions of the ACA would be rendered counter-productive without the mandate.   

[Admiral Yi]

Did the Raich decision provide a limiting test?

[The Minsky Moment]

Did the Raich decision provide a limiting test?

In the majority opinion, the only limiting principle was the reaffirmance of the Lopez-Morrison line of cases where the laws related to local conduct that did not have any "any connection to past interstate activity or a predictable impact on future commercial activity."

In the Scalia concurrence relating to the Necessary & Proper clause, the limiting principle was that there had to be a direct causal relationship between the means selected by Congress and the impact on interstate commerce, i.e. " it does not permit the Court to 'pile inference upon inference' in order to establish that noneconomic activity has a substantial effect on interstate commerce."

What is striking about the mandate is that its likely effect on interstate commerce is enormous, which explains why many legal scholars handicapping the case at the outset expected that it would be upheld based on all the prior precendents.  The activity vs. inactivity distinction has no grounding in prior rulings of the Court; indeed, the strongest argument in favor of the distinction is precisely the absence of clear precedent about it either way.

[Admiral Yi]

Re: judicial activism and its competing partisan definitions.

CNN had a righty talking head on to argue with CNN's house Jew* lawyer about the propriety of Obama's comments on the SC and judicial activism.

It seems to me a problem with the left's definition of judicial activism is that it's invoked very selectively.  The cases that came to mind were the Texas dick sucking law and the various gay marriage overturns.

* I don't know for a fact that he's Jewish.  He could play one on TV though.

[Jacob]

Are the right's complaints about judicial activism less selective?

[Admiral Yi]

Are the right's complaints about judicial activism less selective?

They appear so to me but I'm willing to be enlightened.

[Jacob]

They appear so to me but I'm willing to be enlightened.

I dunno... they don't seem to be up in arms about this particular batch of potential judicial activism.

[Admiral Yi]

I dunno... they don't seem to be up in arms about this particular batch of potential judicial activism.

Lefty definition: overturning legislation.

Righty definition: making up stuff not in the Constitution.

[Jacob]

Lefty definition: overturning legislation.

Righty definition: making up stuff not in the Constitution.

Seems pretty consistent in both cases, no?

[Admiral Yi]

Seems pretty consistent in both cases, no?

I don't understand.

[Jacob]

Seems pretty consistent in both cases, no?

I don't understand.

You're the one who said it.

The left definition of judicial activism: overturning legislation (when the legislation is legitimate and is congruent with left goals)
The right definition judicial activism: applying the constitution creatively (except when the constitution can be interpreted to agree with right goals)

Seems like a consistent line on both sides. Not particularly selective in either case, even if mutually divergent.

[Admiral Yi]

The model for righties of judicial activism is Roe v. Wade.  If a decision were to come along that created a new right to the same extent that Roe v. Wade did, and conservative opponents of judicial activism failed to object, they definitely could be accused of inconsistency.