U.S. Politics, 15

[Ser Scot A Ellison]

Marbury was a suit by Mr. Marbury for a Writ of Mandamus (order to do what you are supposed to do) to have the warrent making Mr. Marbury a DC Judge delivered to him by Mr. Madison (at the time the Secretary of State). The Secretary of State who issued the warrant was John Marshall the Chief Justice who wrote the opinion of the Supreme Court regarding Mr. Marbury's suit. The holding created the power of "judicial review".

[Former Lord of Winterfell]

By the way legal types, shouldn't there have been something to prevent this judge from getting to rule on this case if he has a conflict of interest with the passage or non-passage of the health care bill? I would think so, but I don't know much about how the judicial system works.

Without getting into all the issues, policies, qualifiers, and limitations, the short answer is no. Recusal under these facts would have been highly unusual.

[Tempra]

Not really, all that is needed to be shown based on legal precedents is that the refusal to buy health insurance as economic decisions that, in the aggregate, will have a substantial impact on interstate commerce.

You're missing something key here: Congress can only regulate economic activity. Refusal to buy health insurance does *not* qualify as economic activity. There are no legal precedents to support such an expansive interpretation of the Commerce Clause.

As Hudson said, "The reasoning could apply to transportation, housing, or nutritional decisions. This broad definition of the economic activity subject to congressional regulation lacks logical limitation."

[The Progressive]

Refusal to buy health insurance does *not* qualify as economic activity.

I don't know how you could make that sort of nonsense claim when healthcare spending is a sizeable chunk of the US economy.

[Tempra]

http://tpmdc.talkingpointsmemo.com/2010/12/amateur-hour-va-judge-makes-elementary-error-in-health-care-ruling.php?ref=fpa

With all due respect to Orin Kerr, he is not a constitutional scholar. Here is what a few constitutional scholars say:

Critics of Judge Henry E. Hudson’s decision invalidating the health insurance mandate have accused him of failing to consider the independent effect of the Necessary and Proper Clause. The criticism is based on a single passage in which Judge Hudson states that the same reasons that render the insurance mandate beyond Congress’s Commerce powers also place it beyond the reach of the Necessary and Proper Clause. When this particular passage is viewed in the context of his larger argument, however, it is clear that Judge Hudson did not ignore the Clause or dismiss the concept of implied congressional power. Instead, he simply noted that assertions of unlimited federal power are invalid under either the Commerce Power or the Necessary and Proper Clause.

...

A closer look at Judge Hudson’s opinion, however, shows that he did not conflate the concepts of express and implied powers, nor did he deny the concept of implied federal power under the Necessary and Proper Clause. In fact, Judge Hudson clearly embraced the standard understanding of the Clause. According to Hudson, “[a]lthough the Necessary and Proper Clause vests Congress with broad authority to exercise means, which are not themselves an enumerated power, to implement legislation, it is not without limitation.”

http://volokh.com/2010/12/14/kurt-lash-on-judge-hudson-and-the-necessary-and-proper-clause/

also...

Judge Hudson doesn’t deny that Congress has power to regulate the interstate health and insurance markets. He also doesn’t dispute that (consistent with McCulloch) the necessary and proper clause allows Congress to regulate those markets by means that are not themselves regulations of interstate commerce. However, in Judge Hudson’s view, the necessary and proper clause doesn’t allow Congress to regulate inactivity as a means to effectuate a regulation of interstate commerce. On my reading of Judge Hudson’s opinion, the commerce clause is a power to regulate an interstate commercial activity, the necessary and proper clause gives Congress leeway to regulate intrastate activities in order to achieve that end, but regulation of inactivity is, categorically, not a reasonable means to attain a legitimate end under the commerce clause. “The constitutional viability of the Minimum Essential Coverage Provision,” he says, “turns on whether or not a person’s decision to refuse to purchase health care insurance is . . . an activity.”

http://volokh.com/2010/12/14/from-judge-hudsons-pen-to-justice-scalias-ear/

You can read a debate from various scholars here: http://www.nytimes.com/roomfordebate/2010/12/13/a-fatal-blow-to-obamas-health-care-law

[Tempra]

I don't know how you could make that sort of nonsense claim when healthcare spending is a sizeable chunk of the US economy.

Nonsense claim? We just had a court ruling from one judge who said exactly that. Another opinion is in the works in Florida likely saying the same exact thing. You may be the last person in this country believe these claims are nonsense.

As Hudson said, Congress can certainly regulate the healthcare industry, but it cannot regulate (under the commerce clause) a person who is not engaged in economy activity (i.e. does not buy health insurance).

[Tempra]

Isn't part of the argument that virtually all people will use health care services at some point? Some guy may say he doesn't want health insurance, and then he gets hit by a bus and needs $15,000 in ER services.

That's the argument, but we look at the law's economic effect NOW, not downstream:

Finally, the Secretary highlights several precepts of legal analysis which she suggests should guide the Court in reviewing the issues raised. First, she cautions the Court to remember that the standard for facial challenges establishes a high hurdle. It requires the Commonwealth to demonstrate that there are no possible circumstances in which the Provision could be constitutionally applied. United States v. Salerno, 481 U.S. 739, 745, 107 S.Ct. 2095, 2100 (1987). In other words, they "must show that the [statute] cannot operate constitutionally under any circumstance." West Virginia v. U.S. Dep't of Health & Human Servs., 289 F.3d 281,292 (4th Cir. 2002). Proof of a single constitutional application is all that is necessary in her view. In summary, she explains

for Virginia's facial challenge to succeed under its theory, this Court would have to conclude that no uninsured individual would ever use or be charged for medical services, and that no uninsured individual would ever make an active decision whether to purchase insurance. Because such a showing cannot be made, Virginia's facial challenge must fail.

(Def.'s Mem. Opp. 19.)

On this issue, the Secretary holds the weaker hand. The cases she relies upon, Salerno and West Virginia, which are styled as facial challenges, focus on the impact or effect of the enactment at issue. The immediate lawsuit questions the authority of Congress—at the bill's inception—to enact the legislation. The distinction is somewhat analogous to subject matter jurisdiction, the power to act ab initio. By their very nature, almost all constitutional challenges to specific exercises of enumerated powers, particularly the Commerce Clause, are facial. "When ... a federal statute is challenged as going beyond Congress's enumerated powers, under our precedents the court first asks whether the statute is unconstitutional on its face" Nev. Dep't of Human Res. v. Hibbs, 538 U.S. 721, 743, 123 S.Ct. 1972, 1986 (2003) (Scalia, J., dissenting); see also City of Boerne v. Flores, 521 U.S. 507, 516, 117 S.Ct. 2157, 2162 (1997). A careful examination of the Court's analysis in Lopez and Morrison does not suggest the standard articulated in Salerno. In both Lopez and Morrison, the Court declared the statute under review to be legally stillborn without consideration of its effect downstream.

[Ser Scot A Ellison]

Tempra,

Preach it brother!

[The Progressive]

Nonsense claim? We just had a court ruling from one judge who said exactly that. Another opinion is in the works in Florida likely saying the same exact thing. You may be the last person in this country believe these claims are nonsense.

As Hudson said, Congress can certainly regulate the healthcare industry, but it cannot regulate (under the commerce clause) a person who is not engaged in economy activity (i.e. does not buy health insurance).

I stand by what I said. It's nonsense to argue that not buying health insurance does not affect interstate commerce.

The lower court judges could declare anything they want, but that doesn't mean SCOTUS think that it made sense under legal precedents.

[Tempra]

I stand by what I said. It's nonsense to argue that not buying health insurance does not affect interstate commerce.

The lower court judges could declare anything they want, but that doesn't mean SCOTUS think that it made sense under legal precedents.

Well, SCOTUS can rule how they please, but if they uphold the mandate, they will be treading new ground in commerce clause jurisprudence.

Really, if the mandate is constitutional, what couldn't Congress force us to buy? Cars? Iphones? Certainly, you have to concede that the "refusal to buy health insurance an automobile [is an] economic decision that, in the aggregate, will have a substantial impact on interstate commerce."

Where does the power of the federal government end?

[The Progressive]

Well, SCOTUS can rule how they please, but if they uphold the mandate, they will be treading new ground in commerce clause jurisprudence.

Again, not really because of the precedent set in Wickard v. Filburn.

Where does the power of the federal government end?

It ends where the legislature doesn't make laws that it needs to enforce. I'll start worry about the slippery slope argument when Congress actually passed law mandating that all citizens must raise bumblebees because of honey shortage.

[Ser Scot A Ellison]

Triskele,

I've thrown out the example of health club memberships a few times. The First Lady is on a kick to fight obesity calling it one of the biggest problems facing the US. If Congress can mandate everyone purchase health insurance why, given the obesity crisis and its direct impact upon health care costs, can't Congress mandate all US citizens have memberships in health clubs/gyms or face fines?

[Ser Scot A Ellison]

Lev,

Just say there us no Constitutional limit on the power of Congress under the commerce clause. It's what Wickard means in the long run. Under that precident the only limit on Congress's power is political will and political expedence.

[The Progressive]

Lev,

Just say there us no Constitutional limit on the power of Congress under the commerce clause. It's what Wickard means in the long run. Under that precident the only limit on Congress's power is political will and political expedence.

what nonsense Scot, of course there are Constitutional limit on the power of Congress ................ unless you think that SCOTUS gonna give the stamp of approval for Congressional acts making slavery legal once more?

[Ser Scot A Ellison]

Lev,

Gosh do you enjoy semantics debates. In the past I've asked you what regulations would be beyond the scope of the power granted in the commerce clause and you responded with technically correct but utterly unhelpful, "an action that is Unconstitutional".

Under Wickard there is no limit on Congress's power as almost any conceveable regulation can be justified as just about any action can be rationalized as "affecting" interstate commerce.

[The Progressive]

Except for those that are unconstitutional, lol.

And let's be honest now, you yourself are a champ at semantic arguments ............. let's not start throwing stones now. ;)

[Ser Scot A Ellison]

Lev,

Oh, I'm in a glass house here no question. But I do try to answer direct questions when posed.

[Tempra]

Again, not really because of the precedent set in Wickard v. Filburn.

Wickard is inapposite. Wickard involved an individual producing grain (i.e. he engaged in economic activity). The health mandate involves no activity, economic or otherwise. You have to strain the bounds of logic to argue that doing nothing qualifies as an activity. Heck, you can't even show that people consciously decide to forego health insurance. People are forced to either pay a penalty or buy health insurance merely because they exist.

It ends where the legislature doesn't make laws that it needs to enforce. I'll start worry about the slippery slope argument when Congress actually passed law mandating that all citizens must raise bumblebees because of honey shortage.

This isn't a slippery slope argument. Congress exceeded its powers under the commerce clause. It doesn't matter whether you find this abuse more acceptable than other abuses. An abuse is an abuse is an abuse. Period.

[Jon Sprunk]

While I support many provisions of the HCB, the mandate has always bothered me. I liked that Obama spoke out against it during his campaign, and was disappointed to see him defending it during the ramp-up to the bill's passage. It felt like a huge wet kiss to the insurance industry at the expense of the people.

[The Progressive]

You could have fool me, Scot. If often seems that you tend to answer a question with another question. ;)

Anyhow, this semantic argument would not even take place if it wasn't for your side's strange fetish of Constitutionalism over practical real-world experience, need and benefits of universal healthcare coverage.

But then such facts are meaningless to your side; therefore, those who obsessed over Constitutionalism shall perish by the words in the same document which they worship .............. and all that jazz.