The “Ridiculous” Health Care Constitutionality Question

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There’s something almost adorable about the way some people with a limited grasp of our nation’s constitution attempt to lean on, twist and otherwise molest the document in an attempt to support their own world view. The latest incident came after a reporter asked Nancy Pelosi where the Constitution empowered Congress to enact an individual health insurance mandate. Her response, calling the question itself “ridiculous,” has brought one of the old legal bogeymen back into the public eye. For those who stayed awake in school, of course, it should be obvious that the reporter asked the wrong question.

What he should have asked was, “Madam Speaker, do you really think the Supreme Court would let you get away with such a blatantly unconstitutional move?” Had he done that, Pelosi could have said, “What a ridiculous question. They always do!

And she would have been right, except for the use of the word “always,” unless she modified it to say, “always since 1942.” (More on that date later.)

Still, the Speaker’s glib response has caused some people to point to the hilarious attempt at a defense mounted by Professor Darren Lenard Hutchinson. You’re free to browse through it for amusement value, but here are the telltale bits to watch for.

Also, as many students of high school and college civics classes know, Article I of the Constitution contains the “necessary and proper” clause, which endows Congress with unenumerated powers that are needed to carry out its expressly delegated powers. In the very first case interpreting this provision (McCulloch v. Maryland), the Supreme Court rejected the narrow interpretation offered by anti-federalists.

The consistent efforts by nanny-state advocates to read something into the constitution which simply does not exist always seem to go back to both the “necessary and proper” clause and McCulloch v. Maryland, though why this attempt is made remains a mystery. But there are two portions to this facetious argument which appear consistently.

First, the professor invokes the “necessary and proper” clause, which many people seem to attempt to conflate with the “general welfare clause” arriving at the false conclusion that the Constitution empowers Congress to do whatever is required to ensure the general welfare of the people. All of these champions of federal supremacy seem to conveniently forget that there are a few more words attached to the actual clause in question.

To make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the government of the United States, or in any department or officer thereof.

The clause does not represent some indication of a shadowy list of “other powers” as needed to suit your convenience. It simply establishes a mandate for Congress to be able to enact legislation to carry out the specific powers which are granted. If we were to assume that this empowers Congress to do whatever it wants as long as it promotes the “general welfare” then just as Professor Hutchinson argues from the other side, the rest of the document could just be thrown in the trash.

This brings us back to McCulloch v. Maryland, which also seems to engender a great amount of confusion. For those not familiar, James McCulloch was a cashier at the Baltimore branch of the second Bank of the United States. He refused to pay a massive tax on the branch, levied by the state of Maryland in an effort to destroy the bank, which the state government felt was unconstitutional.

Chief Justice Marshall rejected Maryland’s argument, and while debate still raged around the nation over whether or not the federal government should be able to establish such a bank, the court found that it fell under the umbrella of what was “necessary and proper” for Congress to regulate commerce between the states, as specifically provided for in Article 1, Section 8.

Marshall went on to argue that while the powers of government are limited, the “necessary and proper” clause was meant to enlarge the ability of Congress to carry out its enumerated powers. He wrote: “Let the end be legitimate, let it be within the scope of the constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the constitution, are constitutional…”

Of course, later courts have worked with Congress with a wink and a nod to undermine that finding. The courts held a fairly strong line in reigning in federal overreach, with a few minor exceptions, until the 1940′s. Largely, they relied on the written opinions of the founders, including James Madison, as noted in an excellent analysis by Walter Williams.

Indeed, as James Madison, the father of our Constitution, explained, “The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite.”

The first serious breach in the dam came with a jaw dropping decision from SCOTUS in 1889. As explained in this analysis, it was the first time that the court actually stepped up to the plate and said they didn’t really give much of a hoot about what the founders intended.

The Supreme Court tried to stem the tide by holding legislation to the limits defined by the enumerated powers. Pressure from Congress and presidents gradually overcame the resistance of the courts. The first big crack in the defense appeared in 1889, when the Supreme Court ruled that the commerce clause was a positive grant of power to regulate the economy. They actually came out and said that “The reasons which may have caused the framers of the Constitution to repose the power to regulate commerce in Congress do not…affect or limit the extent of the power itself.” Once the reasoning of the writers of the law is ignored, any interpretation becomes possible.

The final blow came with the case of Wickard v. Filburn. A farmer was fined by the federal government for growing more wheat than a new, federally mandated quota would allow. The court then invoked the commerce clause in the completely farcical way which later became common.

Filburn was a small farmer in Ohio. The Department of Agriculture had set production quotas. Filburn harvested nearly 12 acres of wheat above his government allotment. He argued that the excess wheat was unrelated to commerce since he grew it for his own use. He was fined anyway. The court reasoned that had he not grown the extra wheat he would have had to purchase wheat — therefore, he was indirectly affecting interstate commerce.

Experienced (and generally retired) members of Congress have regularly told stories about this. You see – and this is the key point – Congress has never made a serious attempt to claim that they have the power to pass any and all legislation which takes their fancy. They have always recognized that their laws must be made to look as if they fall within the constraints of Article 1, which is why they laughingly insert some boilerplate at the end of the most far reaching legislation coming up with some imagined reason as to why the forbidden behavior in question would affect “interstate commerce.” It infests our body of federal laws like ants at a picnic. And when a final health care bill hits the President’s desk for signing – assuming one does – I will make a wager here an now with any of you that it will contain that same boilerplate at the end. They know they don’t have the power to issue such a mandate under the Constitution unless they attempt to cloak it under the commerce clause.

There has been some good news of late, though. As pointed out in the Williams article linked above, in the 1990s the federal govt. attempted to impose the “Gun Free School Zones Act” which was challenged before the Supreme Court in U.S. v Lopez. The law also relied, amazingly, on the Commerce Clause to attempt to justify its existence. For once, the court rejected this fantastic rationale.

Why? Violent crime raises insurance costs, and those costs are spread throughout the population. Violent crime reduces the willingness of individuals to travel to high-crime areas within the country. Finally, crime threatens the learning environment, thereby reducing national productivity.

While all of this might be true, the relevant question is whether Congress had constitutional authority to pass the Gun-Free School Zones Act. The U.S. Supreme Court ruled it didn’t, saying, “If we were to accept the government’s arguments, we are hard pressed to posit any activity by an individual that Congress is without power to regulate.”

So there may still be hope. But it’s a slim one. Pelosi is right to be confident in her belief that it’s “ridiculous” that the individual health insurance mandate would stand up in court.

For a different angle on why these nanny-state arguments hold no constitutional water, see Ed Morrissey’s response to Kathy Kattenburg. The word “mandate” has a very specific meaning, folks.

UPDATE: I’m already getting e-mails along the lines of, “Well, what about the Air Force?!?” Please don’t be so silly. First, read Morrissey’s explanation linked above. Second, try to remember that the very specific power to provide for military defense of the nation was granted to the federal government by the founders. Adding planes (which didn’t exist at the time of its writing) isn’t much of a stretch, just as it’s not much of a stretch to imagine that the establishment of a national bank to regulate and control currency among the states would fall under the regulation of interstate commerce. Really… this gets tiresome after a while.

72 Comments

  1. “Once the reasoning of the writers of the law is ignored, any interpretation becomes possible.”

    Thank you, thank you, thank you, Jazz. I've been screaming that for a month now.
    The leftists here (Kathy, and other TMV commentators) don't seem to be concerned. When you have an agenda, people tend to justify it by any means.
    I'm glad Ed Morrisey, who is obviously more qualified than I, decided to call Kathy Kattenburg out on it.

    This lack of Constitutional understanding is at the root of our political, financial, and social mess in which we now find ourselves.

    Since you have basically stated that it has been that way for 70 years, what hope do we have of EVER returning to our Constitutional roots? What now? Deal with it? I pray not.

  2. Here's what the commenter who calls himself Dissenting Justice had to say about this on Kathy's thread:

    The Constitution does not explicitly mention an Air Force, and airplanes did not exist at the time the document was drafted. Saying that the Air Force is in the “spirit” of national defense is intellectually indistinct from saying that regulating health insurance, including mandating coverage, is in the “spirit” of interstate commerce and the taxation and spending powers.

    Also, your argument about the content of the Tenth Amendment was also explicitly rejected by the Court in McCulloch v Maryland. Under the Articles of Confederation, states retained all powers that were not “expressly” delegated to the national government. The Tenth Amendment eliminated the word “expressly.” This language (in addition to the Necessary and Proper Clause) clearly demonstrates that “explicit” enumeration is not required; Congress has implied powers.

    You called the Air Force argument silly in your update. But when you do that, you're doing the exact same thing you're complaining about.

    And “silly” is pretty much the same thing as “ridiculous”.

  3. Now that you told us why we can't have National Universal Health Care organized by the Federal Government, why don't you explain to us why we have a DEA, ATF, FBI, CIA, NSA, Border Patrol etc… After all none of the above are in the Constitution…

  4. A better position for the public option is to become a genuine safety net option. That if you CAN'T find affordable health insurance, there is a government option available so your not uncovered (no need for mandates). Now of course there needs to be some verification of your attempts and the like (so you can't just skip to the safety net option). And the safety net option should be coupled with programs to bounce you back into private insurance (job search, training, etc). But a REAL safety net is much more preferable, to me, than what is flowing through Congress right now. And that REAL safety net is what I feel is the beauty of classic liberal thought: you fall down, we pick you up.

    And nothing about that REAL safety net goes against the Constitution of the United States of America. I think… LOL!

  5. BTW I don't remember Republicans or Conservatives giving a damn the Constitution when G.W. Bush started torturing people, tapping their phones & communications, kidnapping them in order to send them to other countries to be tortured or putting them in jail without a trial and throwing away the key.

  6. I think there is a huge difference between the authority of the government to spend federal funds to establish organizations (like the Air Force) to provide for the defense of the United States and the authority of government to put individual citizens in jail for refusing to buy health insurance.

  7. Ignorance of and contempt for fidelity to the Constitution and constitutional federalism is a staple of the Left. It has been a routine political, ideological, and policy foundation of the Left since the 1930s.

    Nanci Pelosi and everyone and everything represented by her statement are what are ridiculous, and that is being tolerent and sympathetic to the point of being truly magnanimous.

  8. In order for this silly / ridiculous Air Force argument to carry any weight we must accept that the following two items are of equal value:

    1. That the federal government is empowered to build and maintain a military to defend the nation, THEREFORE the addition of a new branch of that military which chiefly handles new technology not available to the founders (airplanes) is a natural extension of that authorized power.

    2. That the federal government is empowered to regulate interstate commerce, to lay and collect taxes, and to appropriate taxpayer funds and spend them in carrying out these responsibilities, THEREFORE the ability to issue a non-voluntary mandate to all citizens forcing them to purchase a product or service is a natural extension of that power.

    Now… take a deep breath, pause a moment, read those two items and tell me with a straight face that you think they carry equal value and validity.

  9. The Air Force argument is really a bad one. Suppose, for instance, back in the 19th century, Congress decided to take the cavalry, or artillery and organize and fund it separately from the rest of the land forces. Does anyone really think that would require Constitutional amendment? After all, it wouldn't be stricly an “Army.” I think those making this line of argument need to realize that “Armies” of the 18th and 19th century were composed of variety of types of forces and that doesn't mean that all forces must be organized under something called an “Army” Adding new forces to the mix is not unconstitutional, nor is organizing them separately. Besides, the Air Force and the other branches of the Armed services are all subordinate to the “Department of Defense” which is the modern equivalent to what is provided for in the Constitution.

  10. “lack of Constitutional understanding is at the root”

    At least the more honest liberals, including people like Tugwell who conceived and executed the New Deal, were willing to be honest about it: The constitution (which they, as liberals wrongly do now, chose to disparage as “obsolete, agrarian-based, wealthy elitist”) got in their way, and they wanted what they wanted (“we needed” what they wanted), so they defied the Constitution. (Tugwell not only was honest about it, but wrote books about the subject, not only about constitutional reform, but specifically a book about defects in the Constitution and how this has affected our history.)

    “When you have an agenda, people tend to justify it by any means”

    That underlies leftist judicial activism and judicial arrogation of legislative functions, as we've seen during the same time period (and continuing today).

    * * *

    “A better position for the public option is to become a genuine safety net option.”

    Yes, concentrating on the uninsured and the unemployed (as well as having Medicare absorb Medicaid), as real-world examples.

    Any kind of universal federal program, assuming such a program is sought (which should be the last and often never, rather than first, resort among adults who respect constitutional federalism), should feature the common characteristics that all federal programs should, by nature, have: they should be uniform nation-wide, and they should be minimal (a “floor,” and what is basic, essential, fundamental, and no more). Anyone wanting something more correctly should be looking to state or local government for it.

    * * *

    “[W]hat hope do we have of EVER returning to our Constitutional roots?”

    I'm confident the answer is zero. Consider what a hopeless task it is to find evidence to the contrary! Not just the trend in Washington (punctuated by, for example, the contempt exemplified by Pelosi for anything hinting at propriety, in her response as well as her remark itself), but with the ignorance or worse so prevalent among those who support a larger federal government (“national” this, that, everything). Water under the bridge, sins committed already, as a rule won't be corrected, and vigilance and correct argumentation and appeals to propriety and morality achieve nothing with these people and the continuing trend. All that can be done is to be wary of more misconduct, assume there will be more to come, and anticipate what to do in the realm of damage control and watching our wallets.

    Even with the post-1994 flirtation with “devolution” (pitiful pretense at correcting some wrongs), which generated so much froth from the Left, what we often saw was simply the transfer of functions assumed by the federal government from one executive department to another.

  11. Andy–

    I think there is a huge difference between common occurrences and weird extreme events. So I'm not sure how to respond to you.

    I have to confess, I have no idea what you're talking about. Since no federal bill has been passed, no one has been jailed by the federal government for refusing to buy health insurance. I do know, however, that there's a lot misinformation and disinformation out there.

    Also, I'm sure you know there used to be military draft. At that time the federal government had the authority to jail draftees who refused induction into the Air Force. So I'm not really sure the difference you're claiming actually exists.

    Finally, whenever this kind of Constitutional argument come up, there are always people who claim to be upholding real and true Constitution in the face of years and decades and centuries of actual Supreme Court rulings going back to the midnight appointments. The commenter I linked to above, Dissenting Justice, made the stripped down version of the argument for cases like this that has been accepted by the Supreme Court for generations.

    I have to admit, it seems kind of ridiculous to pretend otherwise and ask why it's Constitutional this time.

  12. “The Constitution does not explicitly mention an Air Force”

    Irrelevent. What was obviously intended by those who wrote legislation, and those who approved it, can be reasonably discerned and extended to encompass that which they never foresaw or even conceived. There's a vast gulf between that and the modern presumption that inverts the Constitution and its major element, constitutional federalism (which is both implicit to normal people, including the authors, who scoffed at its inversion, and also made explicit in the Tenth Amendment, unnecessary but definitive and incontrovertible), and presumes unlimited, undelineated powers, and reserves all rights to the federal government. “We'll do whatever we want to do” is what supporters childishly or ruthlessly insist of their agenda, and what they insist of the federal government (which is to them often not only their parent but their political and agenda instrument of choice). Tugwell (New Dealer) was at least more tolerable when being simply honest about inverting the Constitution, not merely seeking 100% federal supremacy (and having contempt for the states as possessing any kind of soverignty of note, not merely contempt for their governments as uppity subordinates), when he described the federal government's role in something new, replacing constitutional federalism: Washington can do anything. “IF IT IS NOT FORBIDDEN, IT MAY BE UNDERTAKEN.”

    Americans have federal (“national”) citizenship as well as state citizenship, explicitly, as of Reconstruction years. That is not in dispute. What also is true (where leftists fail so badly, for they fly into tangential silliness rather than address items directly and intelligently and honestly) is that the fact of citizenship introduces a host of things that are legitimate objects of interest and expression in modern times, associated with the modern welfare state as well as “citizenship” in the strict sense. This is what fundamentally may justify regulation of private conduct, which is what federal civil rights legislation encompasses. But things like civil rights legislation are not only associated formally with legislative intent and action itself (the post-Civil War amendments, including the prohibition against discrimination based on race), but are limitations, acting to stop wrongful acts committed by citizens against others. This in no way is the same as creating unlimited or unenumerated-and-implicitly-without-limit broad, undefined powers that may be interpreted to justify or rationalize anything the federal government may do or may choose to do. To legislate against misconduct by citizens is understandable and acceptable, if the case for such legislation is proven. (The burden of proof, as always, is on those on the side of government intervention, against government, authority, and power over people, and potential oppression and tyranny: That is the normal, American, libertarian-based way this country has always been and should remain.) To legislate anything and everything, turning government into a benefit and money machine, or a replacement of the private sector merely to satisfy some people's desires or preferences, or to become authoritarian in a more extreme manner or even totalitarian in choosing legislation that is coercive, that compels certain conduct, is different, rejected as a rule, and opposed by moral people.

    Government is a necessary evil, and should be minimized, and the burden of proof for the exercise of power by it on the people lies always with those who advocate such exercise of power, to justify it.

    At least that's true for honest, normal Americans. For others, who knows, and who cares about losers?

  13. Article I, Section 8 [first line]:

    “The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States;”
    ************
    The “general Welfare of the United States” certainly covers making basic health care accessible and affordable to US citizens who make up the United States. To have private health care fiscally undermining our nation and contributing to our homelessness, bankruptcy, preventable illness and death is a matter also of national security. Enemies of men are not limited to other men. They can be pathogens as well. So I'm sure the basic health of a nation's citizens could also be covered under the “to provide for defense” statutes.

  14. George,

    The difference is that Congress has the specific Constitutional authority to provide for the defense of the United States. That is one of Congress' primary responsibilities. Quibbling over a separate funding line for something called the “Air Force” and calling that unconstitutional is exceedingly bizzare.

    Likewise, the power for the draft comes from that portion of the Constitution related to the common defense of the states. There is no similar direct line of authority for an insurance mandate. That is the issue, it seems to me. I see no Constitutional problem with a national health insurance system, or a public option – for me, the problem is the mandate which uses the power of government to force individuals to participate. If that is so clearly within the Congress' authority, then where does that authority end? What is the limit? I think that is a legitimate question and not a “ridiculous” one as Rep. Pelosi alleges.

  15. Jazz–

    Regulation of health insurance does seem like a natural outcome of the interstate commerce clause.

    I appreciate your suggestion that I take a deep breath and pause for a moment.

    Maybe you should do the same.

  16. Silhouette,

    What are the limits to Congressional authority to provide for the “general welfare of the United States?” Does that include anything not specifically prohibited by the the bill of rights and other protects in the Constitution?

  17. George, that's a lovely reply. If I were talking about “regulation of health insurance” you *might* have a point, though it certainly still sounds more like the venue of state govt. much like regulations on auto insurance. But I'm talking about a *mandate* to force citizens to purchase a particular product or service while not providing them with the funds to do so. Care to try again?

  18. “Silhouette,

    What are the limits to Congressional authority to provide for the “general welfare of the United States?” Does that include anything not specifically prohibited by the the bill of rights and other protects in the Constitution?”~Andy
    *********
    Andy, the word “general” appears in Article I, Section 8, line one of the Constitution. The forefathers recognized that wisdom isn't a fixed phenomenon and that it progresses. As another poster pointed out, the Airforce isn't specifically provided for under “for the common defense” and yet we find Congress having power to fund and oversee the Airforce.

    “general Welfare” means just exactly that. All a good lawyer would have to do is argue that providing healthcare for the general population meets the criteria of those two words “general Welfare”. That should be a snap. : )

  19. Andy–

    I just don't see the basis for any Constitutional complaints. At all.

    All I can do is refer you back to the comment made by Dissenting Justice, which I linked to earlier.

  20. George,

    Again, it would be interesting to know if you believe there is any limit to Congressional authority except for those specifically imposed by the Constitution. I think the root of this issue is differing perceptions about the limits of Congressional power. If there's no basis for Constitutional complaint here, then where does Congressional authority end? Where is the balance between individual liberty and Congressional authority?

  21. Jazz–

    The Constitution has an interstate commerce clause, just like it has a common defense clause.

    It also provides for a Supreme Court to sort problems out.

    Since I am already required to purchase car insurance and homeowners insurance, I am not outraged by a proposed requirement that I must purchase health insurance.

    I do not see any slippery slopes.

    At all.

  22. Silhouette,

    Who said anything about corporations? We are talking about individuals here since the mandate applies to individuals. Your “general welfare” argument is very broad. Again, to what extent can this “general welfare” argument be taken?


    As another poster pointed out, the Airforce isn't specifically provided for under “for the common defense” and yet we find Congress having power to fund and oversee the Airforce.

    So if the Air Force was funded by the Army then there would be no problem? You see, no one questions that Congress has authority to by airplanes anymore than they question the authority of Congress to buy tanks and machine guns. The fact that those air forces are funded in an organization separate from the ground and naval forces is incidental to Congress' clear power to buy and build and air capability. The organization doesn't matter unless you believe that all military funding must flow only to two organizations with the words “Army” and “Navy” in their names. The point being, you need to separate the capability from how the capability is organized.

  23. George,

    Car insurance and homeowners insurance are state requirements. Even Mass. has a health insurance mandate. No one questions that because its at the state level and state governments are supposed to have greater authority than the federal government in such matters. I have no problem with the individual states requiring mandates, the problem is the federal government which is supposed to have limited and specific powers in comparison to states.

  24. “The “general Welfare of the United States” certainly covers making basic health care accessible and affordable to US citizens who make up the United States. “

    It does not, obviously, any more than it requires providing everyone a guaranteed minimum income, etc..

    “Andy, the word 'general' appears in Article I, Section 8, line one of the Constitution.”

    This is not a broad and unlimited grant of powers. Federalist #41 scoffs at such a silly claim.

    Next!

    * * *

    [Interstate commerce clause, no. Court to substitute for amending the constitution if needed, no.]

    “Since I am already required to purchase car insurance and homeowners insurance, I am not outraged by a proposed requirement that I must purchase health insurance.”

    Quick exit: Does the federal government require you to purchase it?

    (Never mind that that the federal government has no power to do so, nor with health insurance.)

    Next!

    * * *

    “Where is the balance between individual liberty and Congressional authority?”

    This is true with respect to the federal government. (Only Congress can legislate; no regulations forcing insurance purchase, Executive Orders, or federal judicial rulings are any legitimate substitutes.) There is also a greater issue here, which is that this is true about the relationship and “balance” between such individual liberty and all governmental authority (and power over people, especially compulsory behavior).

  25. “where does Congressional authority end? Where is the balance between individual liberty and Congressional authority?”~Andy
    ********

    It begins and ends at matters of life and death and limb of its general citizen population. The Constitution in Article I Section 8, line one provides for Congress to “lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States”

    So Congress laying and collecting taxes to pay for and provide for the general Welfare of the United States via public healthcare for preservation of life and limb of its citizens is CLEARLY within the powers of Congress to do.

    Again and related: If healthcare corporations are going to argue that their “rights” as “citizens” supersede the general Welfare of the United States…good luck with that one. Because as “citizens” if it can be demonstrated in a court of law in any given state that one of those “citizens” blockaded another citizen from lifesaving care resulting in another's death, that “citizen” is guilty of manslaughter. You aren't going to have your cake and eat it too…

  26. “a *mandate* to force citizens to purchase a particular product or service while not providing them with the funds to do so”

    Jazz, I'll explain the best that the proponents could do, if they chose for a change to be honest and to be intelligent. It's easy, if only they would improve themselves and choose to do it.

    “We have had the draft before, and we have paid taxes as citizens all the time, which is compulsory.”

    Yes, this is compulsory behavior, or “mandatory” behavior law. It's useful, though insufficient, to say that we have federal citizenship, which is legally elaborate in the modern welfare state, and the federal government can prohibit what it chooses to (legitimately) define as misconduct, such as with civil rights (a current example being the decision to extend the scope of “hate crimes” discrimination-related law). Proponents may refer to this, but this isn't enough; they fail to prove their case. What can be added is that in addition to things like conscription for military service (which used to be the truth), citizens have been paying federal taxes (imposts, duties, etc.) throughout the history of this nation, so the “unfunded mandate” criticism of this mandatory insurance purchase can be said to be irrelevent or at least weak.

    Related but even weaker arguments are “accomplished fact” precedent examples like Medicare, which are useful nevertheless because of the related taxes that already involve all citizens, and of course the issue lurking in the background that this establishes itself a precent of full participation of effective tax payments as well as increasing the number of potential public beneficiaries, as a way to universality.

    “We have had the draft before, and we have paid taxes as citizens all the time, which is compulsory.”

    There, that was easy. It's still a weak and unpalatable case, but it was an easy case to make once the leftist political baggage was tossed aside.

  27. Andy–

    With all due respect, Andy, I'm not troubled by this. You are. So isn't it up to you make a persuasive case that this upsets the balance between individual liberty and Congressional authority.

    Again, I'm not trying to be offensive–but you've already conceded the Constitutional right of the federal government to draft you out of your home and off to kill and be killed. So it seems to me that you're way past the point on the slippery slope of worrying about health insurance mandates. Your logic doesn't hold up.

    I don't especially think the Constitution was intended to be some kind of logical puzzle–I think it is supposed to a rational basis for reasonable governance. The modern health care system was no more foreseeable to the Founding Fathers than Stealth Aircraft. That's why they put flexibility in the Constitution.

  28. Jazz,

    “Still, the Speaker’s glib response has caused some people to point to the hilarious attempt at a defense mounted by Professor Darren Lenard Hutchinson.”

    All these defenses are old, easily ridiculed, and worthless. We have in this silly list: [sigh]

    * The “general welfare” clause (Article 1, Section 8, not the Preamble). This is not a general grant of powers to the federal government, nor the legitimate object of the most stupid equivocation claiming it justifies any commonly-named “welfare” programs of all kinds.

    * The “necessary and proper” clause, which involves implicit powers, not a general grant of powers. That has been long outmoded; why would the professor stoop to such an appalling low intellectual plane here?

    * The “interstate commerce” clause. No, this is not general in scope, involving everything related in any way with “commerce,” however that is interpreted, or in general by reference to a “national economy.”

    * The “equal protection” clause. This has been used, illlegitimately, to rationalize “social” programming.

    * The Tenth Amendment, misconstrued, ignoring the first part (which refers to the federal government) and invoking “the people,” illegitimately, to claim this justifies federal action on behalf of “the people.”

    * The Preamble (which isn't part of the body of the Constitution and has is not any kind of law at all!).

    The most stupid thing I've ever heard related to this list is an extension of it: I've read one professor of law claim that the “general welfare” clause, the portion of the Preamble discussing “the pursuit of happiness,” and the Declaration of Independence used to claim that the federal government is compelled (and its citizens obliged to participate in redistributory taxation to support) a federal guaranteed minimum income to everybody.

    So far, at least, we haven't seen the gross misuse by “rights” as leftists misuse that to misconstrue the Ninth Amendment, “uncorking the Ninth Amendment genie,” as I describe it. (This was feared by some of us during the ClintonCare early 1990s health care federal takeover initiative involving insurers and people in this country being “asked to contribute,” i.e., pay premiums or fines or taxes, too.)

  29. It's always nice to see good extended posts with reasoning. It's too bad it has to be couched at the beginning in the notion that people who disagree with you are ignorant and stupid (adorably so, of course.) I'm assuming your tone matches Kathy's in her post. The other drawback is that your article gives a couple of places where the SCOTUS has already declared they disagree with your interpretation of the Constitution. While you may find SCOTUS' interpretation of the Constitution adorably ignorant, most believe that institution is the final arbiter on the Constitution. No problem with arguing that they got it wrong and that the the modern SCOTUS should reverse course, but if the precedents are what they are, then as of now, it suggests that SCOTUS would view health care legislation as indeed Constitutional.

  30. Andy–

    If you're main concern is states rights, maybe you've got a case. I kind of doubt it (again, see the comment by Dissenting Justice), but I'm not a lawyer.

    On the other hand, if your main concern is individual liberty, why should it matter which level of Leviathan is oppressing you?

    I'm out of time here, Andy, so I'd like to say I enjoyed this. I'm not sure if I'll have time to answer anything tomorrow, but I'll certainly be interested in reading what you have to say.

  31. “The difference is that Congress has the specific Constitutional authority to provide for the defense of the United States.”

    And directly after the words “common defence” you will find the words “and general welfare”. Article 1, Section 8, FIRST SENTENCE. Same sentence. Or are you intentionally ignoring half of the EXACT SAME SENTENCE for a reason?

  32. “if the precedents are what they are, then as of now, it suggests that SCOTUS would view health care legislation as indeed Constitutional”

    Activism hopefully can be ended and reversed. But we have other precedents, real-world “accomplished facts” that are more substantive than a host and heritage of liberal activist court rulings. We have had Social Security since the New Deal and more importantly here, we have had the precedent of Medicare since the 1960s. Ironically, the tougher challenge of proof is with this plan, that involves private parties or agents, and mandatory participation of a kind that is unprecedented (though there are surrogates in the cases of some states).

    The problem here lies not only with the complication involving private parties but that this is a mandatory or compulsory participation requirement of people imposed by the federal government, not an optional or voluntary participation scheme. There is also the general question that always has to be ready to be answered by proponents of anything mandatory, on what grounds it can be legally justified.

    Pelosi should have answered the question. That she didn't, and the way she treated it and the nature of daring to question it, and the all-too-predictable lowly defense of her and worse, lowly attacks on critics, only illustrates the nature of the two sides on these related issues, of propriety of government and federalism.

  33. As far as I can tell, unless you want to inject your own added words and or interpretation, there are only two types of restrictions to laws Congress can pass to promote general welfare of the public. Going on literal text alone, those two restrictions would be 1. restrictions specifically mentioned within the Constitution (i.e. “Congress shall make no law…”) and 2. anything that would deny those rights mentioned in the Ninth Amendment.

    I don't see anything that specifically limits the Congress from making laws to regulate health insurance. However, if you could argue that there is some right of the PEOPLE (even if not specifically mentioned in the Constitution) that it might infringe upon, then you might have a case.

    The way I see it, the reason why the commerce clause and the necessary and proper clause (and for that matter most of Section 8) are so vague is because the founders saw that there might be needs for Congress to pass certain laws in the future without having to go through the process of amending the Constitution. But because they didn't want such a power to be completely unchecked, they also posted restrictions that do specifically say that Congress can NOT pass a law that does X.

  34. Again, I would say that there are limits, and they're specifically mentioned with the exact wording:

    “Congress shall make no law…”

    I would say that's a pretty clear limit.

  35. George,

    That all depends on how one views the Constitution and your particular view isn't the only one out there.

    The kind of derived authority based on general principle (ie. “general welfare”) does have a history, but I don't think it's comparable to specific authority given Congress such as funding and organizing armed forces, declaring war, etc. The distinction between authority derived from a general principle and specific authority is an important one.

    Simply put, there has to be limit to derived authority somewhere or the power reserved to the states and and the people by the 10th amendment is meaningless. It's interesting that in several forums where I have asked where that limit is, none of the advocates who believe a mandate is clearly within Congressional authority are willing to answer that. Maybe it's like pornography – you know it when you see it?

    With all due respect, Andy, I'm not troubled by this. You are. So isn't it up to you make a persuasive case that this upsets the balance between individual liberty and Congressional authority.

    Fair enough, but one could turn that around and suggest that since you are the one advocating for a mandate that it's your responsibility to clear show it is constitutional….

    On the other hand, if your main concern is individual liberty, why should it matter which level of Leviathan is oppressing you?

    For the same reason I don't want my local school board run by the federal government; To prevent the tyranny of the majority and a “one-size fits all” governance. Because local governance is more accountable. Because centralized power is dangerous to democracy. Those are just a couple of the most important reasons.

  36. It seems to me that there are some things that is explicitly stated in the Constitution that Congress shall not do– but they did it anyway under George W. Bush. However, I've yet to see one passage in the U.S. Constitution that says anything akin to “Congress shall pass no law that requires a corporation to sell a product that works as advertised and will not do any harm. Congress shall pass no law that provides competition for such a company.”

    While Section 8 gives the Congress wiggle room to pass laws not specifically mentioned in the Constitution, the Constitution also specifically states what laws Congress may NOT pass. Give the founders some credit for not being complete morons.

    So the challenge, I'd say, is to show where the Constitution specifically FORBIDS that Congress pass such a law rather than to argue that Congress can't pass a law unless it's specifically mentioned in the Constitution that they pass that exact law.

    If you argue that the Constitution would have to specifically mention something in order for Congress to pass a law about it, it would bring to mind the question as to why they didn't just go ahead and write it as a law to begin with and only give Congress the ability to amend the Constitution (which isn't a process explicitly held in Congress in the first place). Perhaps they could forsee a bit that there would be issues that would come up later that might require laws to be passed but shouldn't require an ammendment.

    So my challenge… Show me where the U.S. Constitution specifically states that such a limit to Congressional power exists. Show me where the U.S. Constitution states that Congress cannot pass such a law.

  37. Almoderate,

    And directly after the words “common defence” you will find the words “and general welfare”. Article 1, Section 8, FIRST SENTENCE. Same sentence. Or are you intentionally ignoring half of the EXACT SAME SENTENCE for a reason?

    No, I'm not ignoring that at all, but you should read down further in that section and see where it specifically states that congress has the specific power to raise and support armies. Are we to believe that such specificity is superfluous since the first sentence already provides for the “common defense?” The specificity is there for a reason….

  38. @George
    Since I am already required to purchase car insurance and homeowners insurance, I am not outraged by a proposed requirement that I must purchase health insurance.

    I do not see any slippery slopes.

    Thank you. Now tell me which *Federal* statue requires you to have auto and homeowner's insurance. Thanks in advance.

  39. I often turn to the Federalist Papers to understand the meanings of passages in the Constitution as they would have been understood by a reasonable person in the day. In Federalist 23, Alexander Hamilton writes the following:

    The authorities essential to the common defense are these: to raise armies; to build and equip fleets; to prescribe rules for the government of both; to direct their operations; to provide for their support. These powers ought to exist without limitation, because it is impossible to foresee or to define the extent and variety of national exigencies, and the correspondent extent and variety of the means which may be necessary to satisfy them. The circumstances that endanger the safety of nations are infinite, and for this reason no constitutional shackles can wisely be imposed on the power to which the care of it is committed. This power ought to be coextensive with all the possible combinations of such circumstances; and ought to be under the direction of the same councils which are appointed to preside over the common defense.

    I take it that “armies”, as understood by the people who ratified the Constitution, was a very general term under which an air force would have fallen.

  40. However, I've yet to see one passage in the U.S. Constitution that says anything akin to “Congress shall pass no law that requires a corporation to sell a product that works as advertised and will not do any harm. Congress shall pass no law that provides competition for such a company.”

    Except that's not what we're talking about. We're talking about the individual mandate and whether the federal government has the power to compel individuals to spend their own money to buy health insurance or suffer the legal consequences of fines or jail.

    Medical marijuana is another example and this is a currently a battle between the states and the federal government. Does the authority to outlaw marijuana reside with the federal government or with the states? I think the same basic question exists with regard to mandates – does such authority reside with the federal government or the states? The founders intended that powers not enumerated in the constitution belonged to the states or the people. In fact, at the time, the Federalists argued that the bill of rights was unnecessary because it was clear to them that the constitution, as a list of enumerated powers, already preserved those rights. They believed a bill of rights was redundant and would have, by exclusion, left everything not in the bill of rights open to Congressional control. It seems they were right.

  41. I'll answer for him Jazz: Article I, Section 8, first sentence:

    “Article I, Section 8 [first line]:

    “The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States;”
    ********
    That is the federal law which can, if Congress deems appropriate, mandate that taxes [ie: insurance premiums per single payer] be collected to pay for the general Welfare of the United States. Having a tens of millions of our population at real risk to suffer unnecessary death and dismemberment at the whim of an entity or entities [in this case the private insurance industry] is a matter of national concern and therefore within the powers of Congress to address in the language herein specified.

  42. Silhouette,

    So if the Congress has the power to mandate taxes for healthcare and this power derives from article 1, section eight, then why is there a 16th amendment?

  43. Every one of these policies have been continued or even expanded by the Obama administration, despite his campaign promises to halt them.

  44. “anything that would deny those rights mentioned in the Ninth Amendment”

    ??? The Ninth Amendment makes it clear that (whereas there are no broad or general powers granted to the federal government) rights the people have are not limited to those listed elsewhere (not in the Ninth Amendment itself). (In other words, the people have a broad, general set of rights, unlike government powers.)

    “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”

  45. “So the challenge, I'd say, is to show where the Constitution specifically FORBIDS that Congress pass such a law rather than to argue that Congress can't pass a law unless it's specifically mentioned in the Constitution that they pass that exact law.”

    That “challenge” is the inverse of the truth, and of constitutional federalism.

    However, it follows from what honest inverters have said before, about what Washington (not only the Congress) can do:

    “If it is not forbidden, it may be undertaken.”

    You are saying the challenge is to disprove that. This isn't necessary — it is obviously untrue (inside out).

  46. “ll answer for him Jazz: Article I, Section 8, first sentence:”

    Except that that's not the full sentence, as Madison articulately pointed out in the Federalist #41.

  47. “Regulation of health insurance does seem like a natural outcome of the interstate commerce clause.”

    It seems to me that this gets at the heart of the disagreement. Not to over-simplify things, but in general it seems that liberals believe the constitution limits the ends which the federal government may attempt to reach, and conservatives argue that the constitution limits the means that the federal government may use. Thus, we have the argument that since regulating health insurance falls under the interstate commerce clause, any provision that congress might want to put into such a reform bill must be constitutional, by definition.

    I don't think the answer the ends vs. means question is black and white, but at the very least I'm confident that the intent of the constitution is not to restrict only the ends, because that would imply that the government can do anything it wants as long as the professed end is within the powers granted by the constitution.

  48. Neither does your precious President Obama… and by the way, dont call it “kidnapping” – the right word is extraordinary rendition – something that has happened since the days of the Clinton Admn (in cahoots with the Mukhbaraat – Egyptian intelligence). some thing that is STILL LEGAL today in your wonderful ObamaLand.. and so are drone attacks which cause collateral damage in AfPak..

    and so is wiretapping and reserving the “right” to “tough interrogation”as Leon Panetta talked about in his confirmation hearing.

    Gitmo is still open and may never get closed given the complex legal cases involved – at best these prisoners will be transferred to another high security prison and.. the keys will be thrown away… all these guys who are remaining will have life sentences.

    Now go cower in shame as to how your precious President has followed the footsteps of the evil Rethuglicans.

  49. Morrissey's “air force” argument is disingenuous. Although I agree that the “common defence” language provides ample support, he and other conservatives have demanded far more specificity in this context of liberals regarding healthcare reform. Also, Morrissey explicitly declines to defend the constitutionality of Medicare, and he simply ignores arguments concerning partial-birth abortion, crack cocaine, terrorism, and airport safety. Conservatives have made a mockery of potentially interesting constitutional discourse. Very Hot Air From “Hot Air” — Regarding Healthcare Reform

  50. Silhouette,

    So if the Congress has the power to mandate taxes for healthcare and this power derives from article 1, section eight, then why is there a 16th amendment?~ Andy
    **

    The 16th Amendment:
    “The Congress shall have power to lay and collect taxes on incomes, from whatever source derived, without apportionment among the several States, and without regard to any census or enumeration”
    ***
    Andy, would you like to clarify your question as to the exact language in the 16th Amendment?

  51. The Constitution is a living document Jazz, subject to the will of the people at the time they will the interpretation of it or should they wish, the abolishment of it entirely, as was openly expressed within the Declaration of Independence against any government.

    If our Constitution means the oppression of the people it constitutes, then we should remember that it is merely a piece of paper and that we are Flesh and Blood.

  52. 9th Amendment:
    “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”

    *And*

    Article I, Section 8:
    “The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States”
    *******
    So since one thing does not by it's order nullify another in the Constitution, the real weight of the debate is what has more national importance: protecting the right of the “citizen” corporations to profiteer by denying lifesaving access to healthcare for certain people unable to afford their rates Vs the rights of Citizens to have their lives protected by guaranteed access to lifesaving healthcare regardless of income level, job status and so on.

  53. Harry Potter has his cloak of invisibility. Pelosi and Reid haved their “it's silly or ridiculous” attitude to a legitimate question; can a resident (?) of this country be forced to buy (subsidized or not) health insurance? Yes, they say for the greater good and, ahem, to lower costs. Fine, should we not extend that to other “greater good” items like car, homeowner, long-term care and other insurances that would also promote the greater good? Maybe. There are gross inefficiencies in the 50-state insurance regulatory business.
    I think the health care system does indeed need a major overhaul, but perhaps we could start with the floor or catastrophe policy, as mentioned above, for all those that wind up as the “must be insured”.
    Also, all insurance people are not crooks or manipulators, as they are currently being portrayed for political purposes. While not being wholly nice guys, they do know the insurance business and they know not having a strong mandate will blow any health-care bill out of the water. Working WITH these folks and the medical community a little more closely, I feel, could yield some some more focused and modest solutions, while trying to much “overhaul” will rend a big inefficient bill.

  54. Sorry no.

    President Obama is my President, of whom I am well pleased.

  55. Hopefully, we have no cowboys riding nukes. Hopefully our nuke riders are educated, rational and above all, disciplined nuke riders.

  56. Regulation of health insurance does seem like a natural outcome of the interstate commerce clause.

    If correctly interpretted, the interstate commerce clause gives no such legislative authority to Congress. I covered this earlier today in the comments section to Kathy's post.

  57. The originalist argument about the Constitution is an intellectually satisfying one. However, it neglects the fact that we would have a tremendous upheaval in our country if we were to enforce the Constitution as written. For one thing, we'd have to disband our professional army – Congress is only authorized to raise funds for an army on a two-year basis (though they are authorized to provide a Navy continuously). A reading of the Federalist Papers makes it clear that we were never intended to have a professional standing army. We were to be a nation of citizen-soldiers who could be called up for defensive purposes through state-level militias.

    Who wants to start advocating for an elimination of the US Army?

    Beyond that, the very beginning of Article One reads, “All legislative powers herein granted shall be vested in a Congress of the United States…” One would have to think that “all” would include “governing insurance regulation.” Plus, the only reason insurance would be off limits for Congress to regulate would be that it is offered within a single state. Allow (or force) insurance companies to write policies across state lines and it is, by definition, interstate commerce.

    And, by the way, states would still retain the power to add additional constraints on insurance within their individual borders.

  58. Governing insurance regulation might be fine, but the question is can you force me to buy insurance?

  59. I think it depends on how it is done. Right now the government forces you to buy Medicaid for other people. If you believe the conservative argument that there is no fundamental difference between the government doing something and private contractors offering the same services for a fee through the government, then there's little room to protest.

  60. It's how well you do something (gov or private), that's my concern. I just don't think big gov. should bite off more than it can chew at this point. And, not being a conservative, I believe there can be a difference. Also, I could be lying in the street bleeding to death, and if I choose, I can accept or reject Medicaid; no one is forcing me to use it. But you are sure right, taxpayers do pay for the ones who need it and use it. Again, that being said, I think there should be a strong mandate or some kind of catastrophe insurance for “everyone”.

  61. Um yeah, that's great. So what part of my point do you disagree with and why?

  62. Jazz–

    Show me where I said there was a federal mandate.

    Of course I know it's a state requirement. But the government requirement that I buy insurance is a pre-existing condition.

    So: I am not outraged by a proposed requirement that I must purchase health insurance.

    I don't see it being terribly different. Again, I'm going to make reference to the comment by Dissenting Justice that I linked to earlier.

  63. “Congress is only authorized to raise funds for an army on a two-year basis”

    My understanding is that is what happens.

    “A reading of the Federalist Papers makes it clear that we were never intended to have a professional standing army. “

    Could you point me to a reference? (I'm not trying to argue, I honestly want to understand this argument). I admit that I haven't read all of the papers, but I have read quite a few and I know a few of them spend a lot of time arguing FOR a standing army, while at the same time admitting that there are dangers which is why the 2-year requirement is there.

    From the 25th: “If, to obviate this consequence, it should be resolved to extend the prohibition to the RAISING of armies in time of peace, the United States would then exhibit the most extraordinary spectacle which the world has yet seen, that of a nation incapacitated by its Constitution to prepare for defense, before it was actually invaded….”

    “Here I expect we shall be told that the militia of the country is its natural bulwark, and would be at all times equal to the national defense. This doctrine, in substance, had like to have lost us our independence. It cost millions to the United States that might have been saved. The facts which, from our own experience, forbid a reliance of this kind, are too recent to permit us to be the dupes of such a suggestion. The steady operations of war against a regular and disciplined army can only be successfully conducted by a force of the same kind. Considerations of economy, not less than of stability and vigor, confirm this position. The American militia, in the course of the late war, have, by their valor on numerous occasions, erected eternal monuments to their fame; but the bravest of them feel and know that the liberty of their country could not have been established by their efforts alone, however great and valuable they were. War, like most other things, is a science to be acquired and perfected by diligence, by perserverance, by time, and by practice.”

    Sounds a lot like a professional military to me.

  64. It is hard to believe this is going on to more than 80 comments. The justification is in the Interstate Commerce Clause. The necessary and proper provision allows Congress to legislate and regulate any kind of economic activity as part of regulating interstate Commerce. The more sophisticated tenthers at least understand this and frame their argument that the mandate is not economic in nature. This all was discussed back in August when the Washington Post published an editorial claiming just that.

    See : http://www.washingtonpost.com/wp-dyn/content/ar

    Of course arguing that buying and selling insurance is not economic activity is not going to enhance anyone's reputation as a debater.. Therefore the discussions were pretty short.

    A discussion about the editorial from a fairly right wing legal scholar.

    http://volokh.com/archives/archive_2009_08_16-2

    The OP seems to follow the same line as the editorial without ever even getting to the weak non economic activity point. He cites Lopez saying that he hopes it means that the tide of an ever expanding Commerce Clause is stopping, without pointing out that gun procession in Lopez was ruled to be noneconomic. Which it is. And that the buying and selling of insurance is an economic activity and would never be considered anything but.

    The OP and many of the comments deride people for not understanding or not knowing the constitution. Like or not it is important to know the case law for the point under discussion not just the words in the document.

  65. Nic–

    We're just going around in circles at this point. There have been generations of Supreme Court rulings that support the interstate commerce clause as the basis for this (and, presumably, for many other things you don't like–and, undoubtedly, some things I don't like either).

    I appreciate your temperate, rational arguments. But they're not persuasive.

    I know you are a Libertarian and (unlike so many others who claim the same) are reasonably consistent in your philosophy. I respect that. But you are like the expert on general relativity in the physics department, rolling his eyes at the very notion of a ninety-degree angle. True enough, if you care to follow the math. But I want my house built by a Euclidian.

    In light of precedent, your claims don't hold water, let alone persuade.

  66. Merkin,

    Even many of those who have argued that the individual mandate is not constitutional have expressed regret that the supreme court has had such a broad interpretation of the interstate commerce clause. Even as I argue that it is not constitutional, I am unsure of how the court would rule. It is true that the court precedent is to count any economic behavior as affecting interstate commerce, however I also think that an individual mandate to buy health insurance is an unprecedented law (are there any other federal mandates to buy something?) and therefore how the court would rule is questionable. In any case, while I respect the court's constitutionally appointed position as the arbitrator of constitutional disputes, that doesn't mean I need to agree with their rulings.

    Additionally, the original dispute was whether the question was “ridiculous”. Even if it is true that the law is constitutional, that does not prove that the question is “ridiculous”.

  67. “The more sophisticated tenthers at least understand this and frame their argument that the mandate is not economic in nature. This all was discussed back in August when the Washington Post published an editorial claiming just that.”~Merkin M
    *****
    Indeed the mandate is not soley economic in nature. That's why I keep bringing up the related issue of corporations wanting individual status when it comes to Constitutional rights. In other words if their actions or deliberate inactions predictably and directly result in the death of another, they should be open to prosecution for manslaughter.

    If you think about the question of why we have a clause in Article I, Section 8 of the Constitution about providing for the general Welfare, how can you dismiss that basic healthcare is not part of our general Welfare? If something threatens the lives of 40 million americans, it's no big deal. But if 5,000 of them are killed in 9-11 then we will bend the Constitution over at the waist and have our way with it to justify an illegal war and torture all in the name of economic expansionism?

    [The question mark at the end of that sentence is supposed to inspire you to think about it.]

    My conclusion is that the “sillyness” Pelosi referred to is just exactly this hubris, this audacious shelving of morality at the expense of the overwhelming millions of Americans who will suffer of it. And yes, if you consider all the individual-rights that were sacraficed for Cheney and his gang of thugs to illegally invade another sovereign nation, spy on US citizens to keep them quiet and obedient to “the cause” then yes, the question from the reporter was absolutely, positively ridiculous..

  68. There is no infringement of individual rights to force someone to buy something. The states do it and portions of the federal crop support system are mandated.

    It is important to remember that the courts do not have the luxury afforded critics on the internet. The courts must make rulings that will be applied across a broad range of situations. For example, the drug laws so popular in years past were justified on the same interstate commerce clause and the necessary and proper extensions of economic activity. I don't care what you think about the drug laws but do you think you could craft an argument against the insurance mandate constituting economic activity but retaining the drug law's justification? Or any of the many federal laws based on the same justification that include laws you consider the best thing since sliced bread.

    When all of this came about in August there was a concurrence by Scalia passed around explaining the reality of the matter. As I assume the OP poster is, Scalia is a proponent of original, a dedication he feels he can abandon anytime he needs to support a conservative cause, as here. The case is Gonzales v. Raich here:

    http://www.law.cornell.edu/supct/html/03-1454.Z

    The fact of the matter is that this is a poor way to oppose health care reform or anything else for that matter. If you hate the sausage factory making laws it is best to avoid the one justifying them under the constitution.

    The fact is that the health care reform is going ahead as a consequence of the last two elections and the desire of the electorate to change the course of the country from that of the previous administration. The health care reform was a large part of the reason for the outcome of the election. Proposals were made by both the sides. The status quo side's proposal lost.

    The loss of political power leads to predictable responses. Filibuster is used by people who decried its use only a few short years before. Fidelity to the constitution improves dramatically than over the years when civil liberties were curtailed under war powers invoked for a never ending war declared by executive decree. Judges shouldn't make law from the bench unless it is law we want and lack the political power to pass. Justify the unified executive when in power and the constitutionally limited executive when out.

    The sure way to stop health care reform or get any other thing we want is to present a better case to the electorate to get elected and governing well to keep power. Basing a campaign on a literal interpretation of the constitution and actually applying it equally to the all laws, even the ones we like (someone likes every law), seems like a loser. (And it would be the only way to impose such a strict regime since there is no explicit constitutional authority allowing the Supreme Court to overturn the laws passed by Congress)

    Certainly the question of individual mandates will be taken to the Supreme Court and will be ruled on. If, and there is only a small chance of this considering existing case law, it is found to be unconstitutional, Congress can resort to a blackmail type law to force states to use their powers to enforce mandates. Impose a tax and a requirement for states to pay for indigents. Force states to cover a higher percentage of the costs if they don't enforce an individual mandate.

  69. It seems that the power of the podium reigns supreme. Your question is silly because I am up here and you are down there. (Besides, I don't have an effective answer.) However, a cat can look at a queen (Pelosi) and know that her answer is disingenuous, and so can all of us. But, why get involved in this whole question: mandate, no mandate, when covering more (perhaps not all) of the country's “residents” is what we are after? Couldn't we do that by simply having the government provide folks, like those between jobs and others with some form of basic coverage? And yes, perhaps at taxpayer expense (not a subsidy, call it what it is). Couldn't left, right and center get on board with that, at least as a start, since there are other important elements, tort reform for example, that could and should, be addressed later?
    Right now, it seems many people are debating about how many angels can dance on the head of a pin.
    Someone, dems or reps should take the first step towards a simpler solution.

  70. The States are in favor of a Public Option mostly funded out of the DC purse. How could they not be? Schwarzaneggar is probably wiping the drool away from his mouth at the very thought of that money flow. And everybody knows it from the condition of California and how this act would be a welcome life preserver. Which of course makes Schwarzaneggar twice the coward for not standing up audibly and vocally for the Public Option. Dozens of governors are drooling at the prospect of help in the health care department. And taxpayers should be too since they ALREADY ARE PAYING FOR THE MORE EXPENSIVE ER OPTION for the 40 million uninsured and countless millions of others underinsured or on the brink of becoming uninsured..

    The States want the Public Option. The Constitution provides for its implementation in Article I, Section 8 under “general Welfare” and the power to collect or generate revenues to support the general Welfare.

    I was talking precidents incidentally. The money mob wants its cake and to eat it too.

  71. We're still waiting for a legitimate defense of what is being sought. The usual list of bogus arguments (“general welfare” clause, “interstate commerce” clause, “necessary and proper,” “equal protection,” misconstruction of the Tenth Amendment, misconstruction of the Ninth Amendment, any and all references to the Preamble, et cetera) remains that, a list of bogus arguments.

    Pelosi should have answered the question. I suspect she refused not only because she was being imperious but because she knew she would have difficulty answering. (The same may be true here.)

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