I have been reading a lot of well-meaning liberals who are befuddled by the notion that conservatives are going after the mandate, when that runs the risk of bringing on single payer. Personally, I kind of doubt that, but this is completely beside the point. On a reading of the commerce clause that allows the government to force you to buy insurance from a private company, what can't the government force you to do?
This doesn't seem to be a question that interests progressives; they just aren't very excited about economic liberty beyond maybe the freedom to operate a food truck. And so they seem genuinely bewildered by a reading of the commerce clause that narrows its scope, or an attempt to overturn the mandate even though this might lead us into a single payer system. If you view this solely as tactical maneuvering, perhaps it really is preposterous.And of course, for some conservatives, these operations are tactical, but for a lot, it's an actual horror at the ever-expanding assertion of government powers. I'd like it if they'd get equally horrified about, say, the TSA and the drug laws, but there you are: neither side is as consistently supportive of liberty as I'd like.
While I agree with Megan that draconian TSA and drug law provisions are harsh, there are far worse things our government does now (up to and including assassination of US citizens without due process in the name of Warren Terrah). A provision to buy health insurance is driving conservative-minded libertarians crazy, but the power to declare war, wiretap our citizens, turn our schools into joyless boxes where kids have no rights, causes nary a blip on the radar.
I'm supposed to believe that the Commerce Clause is the worst thing the government has ever done? It's not even the worst thing the government has done this year.
Please, save your outrage for things that matter. The government can already compel citizens to do anything it wants. Equating the health insurance mandate with the far worse things done in our name is what's truly preposterous.
Posts
13 comments:
I'm supposed to believe that the Commerce Clause is the worst thing the government has ever done?
This is why Megan McArdle is respected in conservative circles. She has intelligence and doesn't sound like blithering idiot. She isn't saying what you think she's saying.
It's not even the worst thing the government has done this year.
Yeah, it is. And that's after a long line of terrible things this government has done this year. And last year.
Please, save your outrage for things that matter.
Like what? DADT? That was created by Democrats. Democrats could have fixed this last year and didn't; it's their fault it isn't gone. The DREAM Act? Spare me. Government-sanctioned theft of citizens' private property does matter.
The government can already compel citizens to do anything it wants.
No it can't. That's because of the Constitution. About the only thing the federal government does compel citizens to do is sign up for selective service, and tell parents to make sure their children get an education between the ages of 6 and 16 (and that may not even be federal). That's all we have to do. Thanks to the PPACA, we now have to give our money to health insurance providers based on the standards of do-nothing bureaucrats.
How would like it if the federal government forced you to buy a certain car? And made you buy more than just liability coverage for your car insurance, even if you couldn't afford it?
...there are far worse things our government does now (up to and including assassination of US citizens without due process...)
So an American Islamist terrorist goes to a foreign country to wage war on America and you're worried about his supposed due process rights while he's still overseas? What world do you live in? Gee, the Union killed all those Confederates without giving them due process rights, so Lincoln should be considered a war criminal, right?
...but the power to declare war, wiretap our citizens,...
Al Qaeda is at war against the U.S., but because Congress didn't officially declare war, that means there is no war on? Again, what world do you live in? Even the Supreme Court says the AUMFs are de facto declarations (see Rasul, Hamdan, Hamdi, and Boumediene). And the wiretap thing? That was allowed by ACLU v. NSA. Get over it.
... turn our schools into joyless boxes where kids have no rights...
Yeah, those public schools set up and run by liberals. Talk to your liberals politicians about fixing them.
Steve, I'm not in the mood to deal with your bullshit diatribes again today.
Just rise up with your revolution already and get on with it.
The one state that mandates this coverage is doing quite well.
That's one state, which doesn't have anything to do with the Commerce Clause, and you're pulling news from more than 2 years ago as if it came out today. A few things have happened since then.
Mass. does have the insurance mandate however. The argument here is that the mandate is some horrible detriment to society, when the state hasn't exploded yet.
And for a more recent report, the state has 98.1% health insurance enrollment.
The mandate has worked in Massachusetts.
The point is the Commerce Clause and the power of the federal government, not whether the mandate is a good thing or not or that it works in Massachusetts (if it actually does). State governments are supposed to have the power to mandate insurance coverage; but that doesn't mean the federal government does.
This is like the federal income tax argument of nearly 100 years ago. It was unconstitutional prior to the passage of the 16th Amendment. So if the federal government wants to increase its power like this, then the Constitution has to be amended. Of course it's a slow process; it's supposed to be.
The problem is that Obama and the Democrats wanted this to be a penalty and not a tax, to make it look like Obama didn't break his promise on raising taxes for individuals making less than $200,000/year and families making less than $250,000/year (which was broken anyway when they passed the S-CHIP expansion; Obama meant all taxes, not just income taxes). Well, they got caught.
No, the actual point is the Elastic Clause.
"The Congress shall have Power - 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."
A very deep well of SCOTUS precedent here means Congress has the power to execute the health care mandate as a "necessary and proper" way to conduct the health care federal law. Congress has broad power to use resources to carry out laws, in fact.
You can't just say "10th Amendment!" and win.
You can't just say "10th Amendment!" and win.
I didn't.
No, the actual point is the Elastic Clause.
Judge Hudson disposed of that argument nicely. Orin Kerr tried to make this out as a mistake, but Kerr's argument was so weak as to be easily refutable. The federal government can't redefine what the various clauses mean to justify a law, which is what Hudson caught them doing. Since the federal government is attempting to claim Commerce Clause powers to justify the PPACA, it has to be used in conjunction with the Necessary and Proper Clause in order for it to be Constitutional. One clause doesn't trump another.
The government even argued that the mandate was a tax to try to sidestep the Commerce Clause with the Taxation Clause even though the section with the mandate was clearly written to show it was a penalty. Hudson, and even one of the judges in the other cases, saw through this charade and rejected that argument.
A very deep well of SCOTUS precedent...
There is no precedent for this. The federal government has never attempted to regulate economic inactivity. This would allow the federal government to define a person merely as a piece of commerce to be regulated and controlled, which is hardly what the Founders had in mind when they drew up the Constitution.
Your hard-headedness is exhausting.
Once again.
Despite your "vast legal qualifications" to proclaim that Judge Hudson is right and oh, everyone else is wrong, Hudson didn't even address the Elastic Clause. If anything he completely ignored it in favor of a narrowly specious argument involving the Commerce Clause that is so narrow as to render much of existing federal law obsolete.
This mandate does not exist in a vacuum. What Hudson did was simply ignore the part of the Constitution that he didn't agree with, much like yourself.
What the Elastic Clause says is "If Congress makes a law, they have the power to create what they need to reasonably enforce and carry out the law."
That's what decades of precedent deals with, that what the mandate is, and that's why it should pass muster.
And as I have said, it's not up to me, it's up to SCOTUS, they will decide what they want to. If the Supreme Court buys Hudson's argument, then just about every single federal law out there faces dismantling under the ruling because the Elastic Clause is meaningless before the Commerce Clause for anything that isn't directly intrastate trade.
I'd say that's ludicrous, but SCOTUS just last January did the same thing to campaign finance reform over unlimited corporate donations being "free speech".
Despite your "vast legal qualifications" to proclaim that Judge Hudson is right and oh, everyone else is wrong, Hudson didn't even address the Elastic Clause.
Sure he did. Repeatedly. He states clearly that McCullough and Comstock pointed out there are limits to the power Congress can wield, while your argument would justify Congress can literally do anything, which it can't. And besides, you're still ignoring the Commerce Clause while claiming Hudson ignored the Elastic (Necessary and Proper) Clause.
If the Supreme Court buys Hudson's argument, then just about every single federal law out there faces dismantling...
I doubt it but so what? Plessy was used for over 50 years to claim that pages and pages of state and federal statutes allowing discrimination and segregation were supported by the Constitution until overturned by Brown v. Board of Education and other decisions. Laws that don't pass Constitutional muster have no business being on the books, even ones that are supposedly well intended. Which includes those parts of McCain-Feingold that were struck down by Citizens United.
No.
You're not paying attention.
Anything "necessary and proper" for being able to execute laws. That's not "anything".
Second, time and time again the courts have come out saying the Elastic Clause and the Commerce Clause are not applied in a vacuum and work together. They are not mutually exclusive. This "one or the other" stuff is rewriting decades of precedent. Hudson had no problem apparently doing that.
So please, explain why he's not an "activist judge" here when he's rewriting decades of precedent.
I do get it. I understand that the Elastic and Commerce Clauses work together. Judge Hudson's ruling made that abundantly clear. It was the government who tried to argue that the Elastic Clause trumped the Commerce Clause, that the Elastic Clause should be applied in a vacuum, in order to justify regulating economic inactivity. There is no precedent anywhere that allows the Elastic Clause to have more weight over the Commerce Clause (see Lopez and Morrison) or allowing for the regulation of economic inactivity under any clause. Ergo, Hudson held the PPACA mandate to the standards outlined in the Constitution and found the mandate wanting. That is why he is not an "activist judge". As it is, it is the justification of Wickard and Raich, both decisions by "activist judges" (yes, including Scalia in Raich) as precedent that show the judges in the other two PPACA cases (Thomas More Law Center v. Obama and Liberty University v. Geithner) to be "activist judges".
"I do get it. I understand that the Elastic and Commerce Clauses work together. Judge Hudson's ruling made that abundantly clear. It was the government who tried to argue that the Elastic Clause trumped the Commerce Clause, that the Elastic Clause should be applied in a vacuum, in order to justify regulating economic inactivity."
No. You don't. That's not what the government said. And in the two rulings that found the mandate Constitutional the judges found that the mandate met both the Commerce and Elastic clauses, which was the entire argument.
You can rail all you want to about this.
Do so on your own blog.
Post a Comment