The White House says it isn’t worried that 13 state attorneys general, including South Carolina’s, are suing to overturn the massive health care overhaul, and many legal experts agree the effort is futile.
But the lawsuit, filed in federal court seven minutes after President Barack Obama signed the 10-year, $938 billion health care bill, underscores the divisiveness of the issue and the political rancor that has surrounded it.
These cases are interesting. Both Charles Fried and Michael McConnell were on NPR recently about these attempts. They were unimpressed. It’s more about politics than about the constitution.
John–I disagree. NPR and the left wing want us to believe its not about the constitution. I read it just the other day and there is no where in there where it says the federal government can force the citizens of the US to purchase a product as a condition of citizenship. The reason the commerece clause does not apply is because the states regulate insurance within their boundries. The 10th Amendment is quite clear that if the powers are not enumerated, the states retain those powers. Just because the 10th Amendment hasn’t been a battle ground before now, does not mean it doesn’t exist. I think politics may come into play, however. I think the stupidist mistke Obama has made was insulting the Supreme Court before 100M people. It proves how naive he is. As we used to say in the Marine Corps “Payback’s a Medivac”. Those who live by Chicago street politics also chance dying by Chicago street politics.
Good money after bad.
In Tennessee, they are debating a bill which instructs the AG to take legal action to protect Tennesseans. Sad that it is necessary to instruct an AG to do his job. Troubling that due to political infighting, it might not even get out of committee.
You know James Madison argued that no bill of rights was need because the scheme of limited federal powers was sufficient to prevent federal overreach. The US constitution set out specific grants of power to the federal government and it would be restrained to go beyond them.
I guess he lied.
#5
No, he just underestimated the mendacity of our policitians, and the laziness of our people.
[blockquote]2. David Keller wrote: The reason the commerece clause does not apply is because the states regulate insurance within their boundries. [/blockquote]
“The authority to enact laws necessary and proper for the regulation of interstate commerce is not limited to laws governing intrastate activities that substantially affect interstate commerce. Where necessary to make a regulation of interstate commerce effective, Congress may regulate even those intrastate activities that do not themselves substantially affect interstate commerce.” – Justice Scalia, [i]Gonzales v. Raich[/i]
There is a good argument to be made that even though insurance is regulated on the state level, the healthcare industy “substantially affect[s] interstate commerce.”
Most constitutional legal scholars I’ve heard or read in the last few days are dubious that this law will be struck down.
What is unclear to me is to how the “excise tax” will be applied, if at all, to those who do not have to file federal income tax returns due to low income. Or, will it be the case that then everyone needs to file?
The Constitution is, sad to say, probably irrelevant. Recall the case from a couple of years ago, in which the US Supreme Court decided that state allowances for marijuana cannot override federal law. Supposedly private growing was nevertheless “interstate commerce.” The theory seems to be that if Jack grows his own in state A, that affects grower Jeff in state B, since otherwise Jeff would supply Jack across state lines.
The justices split according to whether or not they were inclined to grow federal power, or not. The leftists, whom one might think would be pro-pot, ruled that federal law was determinative, presumably because that was the path to growing federal power (as opposed to local growing, pun intended).
The health legislation is clearly a case of growing federal power. Ultimately, if it goes to the Supreme Court, the decision may well rest on whether or not Justice Kennedy is in an expansive mood that day.
The Constitution is like the Bible: It says whatever progressives want it to say. This is why proponents of same-sex married clergy have no trouble quoting some verses and ignoring others.
I think it’s a long shot but of course I believe that every avenue should be traveled down in order to pursue negating, obliterating, repealing, or completely watering down this unConstitutional, immoral, corrupt, and anti-liberty legislation.
Three cheers for the AGs. In the meantime, all fronts can be explored.
Has anybody heard anything about whether the Amish will be exempt from this law? They do not participate in Social Security. I do not know if they have participated in Medicare or Medicaid.
#7–First, keep in mind that legal scholars don’t actually do anything. They are theorists. Second, most of the commerece clause law we have eninates from Justice Douglas who was literally making stuff up to save the New Deal. Third, the question which has never been sufficiently answered is whether the commerce clause allows congress to regulate the buying and selling of commodies or the actual commodies themselves. “Scholars” will argue the commerce cluse law is intented to regulate actual products, because Justice Douglas/the Supremes said so. And OMG if we said they could only regulate buying and selling then several government agencies would be out of business. Even if that is true, just because someone with a lot of education who wears a black bathrobe to work, says something is so, doesn’t make it so. Roger Taney said Dred Scott was a chatel. The Supremes said Louisiana could segregate people by race. If the court doesn’t fix Obamacare the results will ultimately be the same as came from those two awful decisions.
Here is how the Commerce Clause works in reality using the rational of Wickard v. Fillburn 317 U.S. 111; 63 S. Ct. 82; 87 L. Ed. 122 (1942):
Congress can require all fire trucks to be painted red.
1.The Congress finds that:
2.There is too much red paint in the channels of interstate commerce. Those channels are clogged and it is necessary that those channels be freed to allow the free movement of red paint.
3.Fire trucks have a minimum crew of at least 3 firemen/persons and at least 4 wheels.
4.3 times 4 is 12.
5.There are 12 inches in a ruler/1 foot measuring stick.
6.Queen Victoria was a ruler.
6.During the reign of Queen Victoria, Great Britain ruled the sea.
7.In the sea there are fish.
8.Fish have fins
9.The Finns are always fighting the Russians.
10.Russians are red.
11.Fire trucks are always rushin around.
12.Fire trucks must be painted red.
There you have it.
Will there be a voters’ revolt? You bet there will! Will this law be challenged in Federal court? Yep! Have we heard the last of this? Nope! Will it drag on for years? Yep!
#12–You are correct. Justice Stone was making stuff up to save the New Deal in that one.
I concur with Sarah and I am wondering how many states are now filing suit against the Federal Government?
What exactly is the legal argument here? All the media reports seem the suggest its a “The Federal can’t do this because they’ve never done this” or “this isn’t fair” argument, which of which has much backing in terms of Constitutional precedent.
If they don’t have a better or more original argument than that, this suit won’t go far.
Archer, I would venture to guess that much has to do with the enumerated powers of the Federal government vs the sovereign powers of State government. BUt not being a lawyer I am just supposing.
I am sure that there is much n the legal argument that will be stated and brought forth….my suggestion would be to contact your states AG and see if there is away for you to get the info you seek.
#10: I read somewhere that there is a religious exemption. According to a non-authoritative web site, it would permit those such as the Amish to avoid participation. However, as you might expect, there are some frustrated folks who think that maybe we can all “get religion” and claim exemption.
I don’t know all of the constitutional arguments, but they seem to center around the Commerce Clause. For example: Congress may regulate the stream of commerce, but may NOT require an individual to ENTER the stream commerce to purchase a product. I don’t know how compelling that is, but that’s one of the arguments.
I also heard a question as to whether Christian Scientists would have to purchase health care or if they can get a religious exemption. Something to think about, TLDillon (I think I read in your comments on another thread that you currently don’t have health insurance and don’t want it) – maybe a quick sign-up at your local Christian Scientist book store!
Branford…..It is not that I do not want it…I stated that we cannot afford it. We live on one income not in the triple digits but in the mid 5 digits. We pay child support and cover his children on his work policy required of us by family law in the divorce settlement. The State Child Support and our rent and car payment and car insurance payment will come first before health insurance. But now it looks like we will be forced to purchase something we already could not afford. we are both in our 50’s and jobs in this economy are not readily available to us at our age. Trust me we both have looked and applied to no avail to supplement our one income. There is always some one younger or more “qualified” than we. God will provide…He has thus far and I have faith.
I believe there are more than Commerce Clause arguments here. Forcing a private contract on citizenry has all kinds of constitutional problems – potential 4th and 14th Amendment possibilities for unlawful seizure and unequal protection. Additionally, while Congress is infamous for passing legislation that favors one state or one jurisdiction, I question whether any massive law like this one, intended to apply to the entire citizenry, that hands out the favorable treatment to certain states, counties, cities, or segments of our society has ever been challenged before the Supremes under equal protection and unequal application of the law. I think this bill (now law) has the chance of being unseated by well more than the normal swing voter, Justice Kennedy. I can see a potential 7-2 decision on this one. Legal “scholars,” making predictions, before they have seen any of the arguments being made or briefs filed are not good lawyers. No good lawyer gives an opinion without knowing exactly what he/she is dealing with.
#15–I understand 12 will file this week. 38 Attorneys General have said they will file. Interesting note: How many states does it take to call a constitutional convention? That would be 38.
Lots of people thought social security and the welfare net was unconstitutional, and that Roosevelt, Truman and Kennedy were all Reds.
But I haven’t heard one conservative legal scholar say that this was possible. However, if it does get overturned, clearly it was unconstitutional. And if it doesn’t, perhaps it is.
Granted, this bill does impose a small burden upon the plutocracy and helps some who don’t have very much. That said, it does seem like Hospitals, Insurance Companies, and big pharma reacted quite well. Perhaps this “socialist” bill seems like the kind of bill that bizness likes. A few more regulations, but millions of more customers.
Still, I would have preferred the bills that those “collectivists” Truman and Nixon presented.
24, I finally think that we are ready for a Constitutional Convention. We need to make it clear the the Federal Government is a government of limited powers.
#7 is correct. There is little chance of a substantive Constitutional challenge succeeding, as the professors note. The Commerce Clause cases of the 30’s held that activities, which in the aggregage affected interstate commerce could be regulated by Congress. It is almost forgoptten that the 1964 Civil Rights Act was based on the Commerce Clause (restaurants, motels, etc.).
However, there seem to be a number of potential procedural Constitutional attacks that might be successful, primarily that the Senate and House passed different versions, so that there was no bill for the President to sign. Much more likely that the Supreme Court would find a procedural objection than have to overrule or distinguish 75 years of Commerce Clause decisions. We shall see.
#27, my understanding was that the House first passed the Senate Bill 219-212, and that is the bill the President signed. Then the House passed a bill with amendments to the Senate bill, 220-211, which the Senate is set to debate and on which the Senate Parliamentarian will rule as to the House’s bill’s propriety, and which the Senate will vote on (assuming the VP overrules the Senate Parliamentarian, if he rules the House bill out of order) pursuant to the reconciliation process. But that is just my understanding from news media reports.
The problem is that Congress is not constrained by the plain language of the Constitution. It is constrained by whatever 5 judges agree that the language of the Constitution says.
So, if the Language of the Constitution is silent on health insurance, but someone can convince 5 SCOTUS Justices to say that the Constitution has a penumbra that covers health insurance – viola! The constitution allows congress to enact force everyone to purchase health insurance!
YBIC,
Phil Snyder
The case is, I think, that never before has Congress passed a law requiring citizens to enter into a contract to purchase a product. It has previously provided incentives to try to persuade citizens to do so (cash for clunkers, weatherization tax credits, etc.) but it has never required everyone to buy a car or new windows. That forced purchase of a product as a condition of being alive in the US is what’s new, and what the lawsuits are aimed at.
#28, good point if that’s what happened. But that raises a separate issue as to the validity of the first. As I said, we’ll see.