U.S. politics 23

[Tempra]

Tempra,

A well made point.

However, I was thinking along the lines that Wickard never sold any wheat and therefore never engaged in "commerce" and under that theory engaged in no "activity" but was subject to regulation because his choice to not engage in commerce "affected" commerce. Therefore, if someone chooses not to buy health insurance they are affecting others by changing the risk pool and possibly subjecting tax payers to liablity if they have a catastrophic injury but are unable to pay for the cost of treatment. Thus, similar to Wickard's "inactivity" these individual's inactivity affects commerce.

[eta]

Please recognized that I hate Wickard v. Filburn with the white hot intensity of a thousand suns. I just think it can apply in this circumstance.

I think that is the argument the SG's office will make, but I think the better reading of Wickard is that it does not apply in this instance. The law at issue did not require that everyone, or even all farmers, buy wheat from interstate commerce instead of growing their own. Filburn could have reduced the amount of wheat he consumed every year to stay within the allotted limits. He could have scrapped being a farmer all together and started a writing career instead. Congress could not regulate THIS inactivity and force him to buy wheat. Congress could only force Filburn to obey the limits. As such, I don't think Wickard deals with the issue of inactivity but whether an affirmative activity (here growing wheat) affects interstate commerce regardless of whether the activity is local or non-local

[mormont]

Randy Barnett, considered by many to be the Commerce Clause expert, believes such a mandate to be unconstitutional:

I can't help noticing that Mr Barnett is mainly described as such by libertarians, largely because he is a libertarian. Surely this is a bit like a left-winger citing Hugo Chavez as an expert on oil pricing?

[Ser Scot A Ellison]

Tempra,

I think that is the argument the SG's office will make, but I think the better reading of Wickard is that it does not apply in this instance. The law at issue did not require that everyone, or even all farmers, buy wheat from interstate commerce instead of growing their own. Filburn could have reduced the amount of wheat he consumed every year to stay within the allotted limits. He could have scrapped being a farmer all together and started a writing career instead. Congress could not regulate THIS inactivity and force him to buy wheat. Congress could only force Filburn to obey the limits. As such, I don't think Wickard deals with the issue of inactivity but whether an affirmative activity (here growing wheat) affects interstate commerce regardless of whether the activity is local or non-local

It will be interesting to see it argued. What I wonder is how long will the Supreme Court and lower Courts dodge the issue on standing grounds?

[Tempra]

I can't help noticing that Mr Barnett is mainly described as such by libertarians, largely because he is a libertarian. Surely this is a bit like a left-winger citing Hugo Chavez as an expert on oil pricing?

Randy Barnett is one of the most respected academics in the legal academy. His articles appear in all the top journals and he was lead attorney in one of the most important Commerce Clause cases of the past 25 years (Gonzales v. Raich). His credentials are pretty much beyond reproach.

[mormont]

Randy Barnett is one of the most respected academics in the legal academy. His articles appear in all the top journals and he was lead attorney in one of the most important Commerce Clause cases of the past 25 years (Gonzales v. Raich). His credentials are pretty much beyond reproach.

All of that may be so, but it's not unreasonable to point out that he has a strong political belief that would influence his interpretation of the Commerce Clause you mention above. If you're making an appeal to expertise, academic credentials are relevant - but so is bias.

[LCOTNW]

I can't help noticing that Mr Barnett is mainly described as such by libertarians, largely because he is a libertarian. Surely this is a bit like a left-winger citing Hugo Chavez as an expert on oil pricing?

Probably so. And saying that someone is an expert on the Commerce Clause is like saying someone is an expert on peanut butter. There are a lot of people who are quite familiar with it besides Mr. Barnett. It is not like some kind of niche specialty where there can be only a few experts.

If the conservative/libertarian side of the argument defeats mandates (and thus reform generally) on constitutional grounds, I would think that would only add fuel to the public option since that would be the government providing services for the health, and general welfare, clearly constitutional. Maybe they think that there is no political will to go the distance in that event, and perhaps that is so. In that event, I hope that someone in the democratic party (Franken?) holds them accountable for the consequences of a lack of healthcare reform. I hope they bring it up in every speech, at every rally, and in every 2-bit House race in the next 6 years.

[Ser Scot A Ellison]

Mormont,

Yet people cite Paul Krugman without worrying about his bias.

[Tempra]

All of that may be so, but it's not unreasonable to point out that he has a strong political belief that would influence his interpretation of the Commerce Clause you mention above. If you're making an appeal to expertise, academic credentials are relevant - but so is bias.

Of course, however, people tend to "point out" a "strong political belief" as a dismissive tactic so that they do not need to address substantive arguments.

[Ser Scot A Ellison]

LCOTNW,

Probably so. And saying that someone is an expert on the Commerce Clause is like saying someone is an expert on peanut butter. There are a lot of people who are quite familiar with it besides Mr. Barnett. It is not like some kind of niche specialty where there can be only a few experts.

If the conservative/libertarian side of the argument defeats mandates (and thus reform generally) on constitutional grounds, I would think that would only add fuel to the public option since that would be the government providing services for the health, and general welfare, clearly constitutional. Maybe they think that there is no political will to go the distance in that event, and perhaps that is so. In that event, I hope that someone in the democratic party (Franken?) holds them accountable for the consequences of a lack of healthcare reform. I hope they bring it up in every speech, at every rally, and in every 2-bit House race in the next 6 years.

I think we will end up with single payor anyway. I believe, if this bill passes, it will continue to push up health care costs. These costs will continue to be passed to the individual consumer to the point people will not be able to afford the coverage and will just pay their fines. At the end of the day there will be no option left but single payor because of the minimal efforts made in this bill to control costs.

[mormont]

Mormont,

Yet people cite Paul Krugman without worrying about his bias.

Do they? I think mostly they acknowledge it quite openly. Also, see below.

Of course, however, people tend to "point out" a "strong political belief" as a dismissive tactic so that they do not need to address substantive arguments.

Very true. However, in this case, so far as I can see, the entire 'substantive' point is Mr Barnett's reading of the Commerce Clause - in other words, his opinion. His political belief strikes right to the heart of that.

[TrackerNeil]

Tracker,

I'm talking about individuals who choose not to get health insurance despite the mandates. Correct me if I'm wrong but if individuals don't pay their taxes they do go to jail. If they go to jail they lose their children. The other option, besides incarceration, is to have their stuff seized and sold to pay the accumulating fines. That puts people out of their homes for choosing not to have health insurance.

So you're really talking not about people who don't obtain health insurance, but people who don't pay their taxes. In that case, your problem is then with the way in which non-payment of taxes is handled, and that's a different argument.

[Ser Scot A Ellison]

Tracker,

So you're really talking not about people who don't obtain health insurance, but people who don't pay their taxes. In that case, your problem is then with the way in which non-payment of taxes is handled, and that's a different argument.

Which means, I suppose, that this new mandate is just a new tax on those making less that $100,000.00 a year. Violating another campaign promise.

[The Progressive]

I guess you could see it that way, if you consider higher gas price a tax on your income as well.

[Ser Scot A Ellison]

Lev,

I guess you could see it that way, if you consider higher gas price a tax on your income as well.

If it's being enforced through the tax code what else do you call it?

[The Progressive]

Lev,

If it's being enforced through the tax code what else do you call it?

Civic duty?

[Ser Scot A Ellison]

Lev,

Civic duty?

Only if it's a civic duty to not grow more wheat than you are permited to by Papa government.

[The Progressive]

Lev,

Only if it's a civic duty to not grow more wheat than you are permited to by Papa government.

The scary government don't allow you to drive 100 mph in a school zone either.

I hate them!

[Ser Scot A Ellison]

Lev,

The scary government don't allow you to drive 100 mph in a school zone either.

I hate them!

Of course the potential for damage is the same when growing wheat and when driving 100 MPH in a school zone. That's definitely not apples and oranges.

:P

[The Progressive]

Lev,

Of course the potential for damage is the same when growing wheat and when driving 100 MPH in a school zone. ThatKs definitely not apples and oranges.

:P

You can grow as much wheat/orange/apple as you want if you didn't receive agro-welfare from the government.

[Ser Scot A Ellison]

Lev,

You can grow as much wheat/orange/apple as you want if you didn't receive agro-welfare from the government.

The same could be said, before this bill, if you chose to pay for your own health care.