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.)

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.

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.

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..

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”.

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.

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.

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.

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.

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.

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.

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