ACA in the Supreme Court Catch-All

Um. You two [em]do[/em] realize that Obama is paraphrasing the arguments of the right wing there, right? (In that specific quote, I mean. Not the argument in general, which I would agree is incorrect.)

Hypatian wrote:

Um. You two [em]do[/em] realize that Obama is paraphrasing the arguments of the right wing there, right? (In that specific quote, I mean. Not the argument in general, which I would agree is incorrect.)

Don't let context stop the fury!

SpacePPoliceman wrote:
Hypatian wrote:

Um. You two [em]do[/em] realize that Obama is paraphrasing the arguments of the right wing there, right? (In that specific quote, I mean. Not the argument in general, which I would agree is incorrect.)

Don't let context stop the fury!

Yeah I'm really lost here.

SixteenBlue wrote:
SpacePPoliceman wrote:
Hypatian wrote:

Um. You two [em]do[/em] realize that Obama is paraphrasing the arguments of the right wing there, right? (In that specific quote, I mean. Not the argument in general, which I would agree is incorrect.)

Don't let context stop the fury!

Yeah I'm really lost here.

Sarcasm and irony lose their effect when RAGE is involved.

Activist Judges! Get a rope!

You know, Aetius, I read the bolded part of your quote without reading the rest carefully, assuming that you were bolding correctly. You do realize that Obama is saying, there, that conservatives have been making precisely that argument for most of a decade now, and that he's just echoing their argument back to them?

He's not claiming to actually be making it himself, he's calling them twofaced liars. Which is absolutely true... as soon as they get a result they like, they LOVE LOVE LOVE judicial activism.

So, I retract my prior comment completely. I was coming to this thread to point out that any conservative crying about Obama decrying judicial activism is bullsh*t, because they themselves have been doing that for years. Then I reread the last few comments, and realized that Obama himself was saying the exact same thing, several days sooner, and that I'd completely misunderstood the content of his quote.

Oops.

Remember that Gingrich was claiming just a few months ago that he planned to completely ignore the Supreme Court if it did anything he didn't like.

Malor wrote:

Remember that Gingrich was claiming just a few months ago that he planned to completely ignore the Supreme Court if it did anything he didn't like.

It's a bit worse than that. Gingrich threatened to have federal judges arrested for disagreeing with him.

And there were no cries of distress about Gingrich on the right....yet, suddenly, they're crowing about respect for the decisions of the Supreme Court.

Why do people vote for these guys? They're just absolutely, utterly mendacious and two-faced. They make Etch-a-Sketch Romney look like Mount Rushmore.

Malor wrote:

Why do people vote for these guys? They're just absolutely, utterly mendacious and two-faced. They make Etch-a-Sketch Romney look like Mount Rushmore.

Because deep in our hearts, we all tend to believe that the law is there to keep people who don't agree with us in line. People of the proper (read: "our") viewpoints should be free to skirt or ignore the law because, well, we're doing the right thing and thinking more clearly than others.

Hypatian wrote:

Um. You two [em]do[/em] realize that Obama is paraphrasing the arguments of the right wing there, right? (In that specific quote, I mean. Not the argument in general, which I would agree is incorrect.)

He's only doing that to support his own argument - which gains him nothing.

Obama said at a press conference on Monday that the Supreme Court declaring the health care law unconstitutional “would be an unprecedented, extraordinary step of overturning a law that was passed by a strong majority of a democratically elected Congress.”

I quoted Obama's other argument because it's a appalling grade-school "but they're doing it too!" argument. To hear such an argument from the sitting President of the United States should scare everyone, or at least everyone who thinks that government should be constrained by the Constitution in at least some way.

Malor wrote:

So, I retract my prior comment completely.

Why?

Because deep in our hearts, we all tend to believe that the law is there to keep people who don't agree with us in line. People of the proper (read: "our") viewpoints should be free to skirt or ignore the law because, well, we're doing the right thing and thinking more clearly than others.

I'm seeing that exact thing in the push for the individual mandate from the left... they just dance around and around the fact that Congress really was never granted the power to do any such thing. They want this thing, so they're willing to rationalize it, even though the authority is just flat not there. They argue that it's needed to cure the healthcare system, so that justifies ignoring the Constitution.... they're perfectly willing to just ignore the most fundamental rules of our society when it gets them something they want. Nevermind that this gives even more power to the other side to ignore rules and do things that are even more extreme and dangerous.

It's definitely a bipartisan problem. I've come to the conclusion that people simply do not give a hoot what the Constitution says anymore. I'm not sure they even know what's in it.

Malor wrote:

I'm seeing that exact thing in the push for the individual mandate from the left... they just dance around and around the fact that Congress really was never granted the power to do any such thing. They want this thing, so they're willing to rationalize it, even though the authority is just flat not there. They argue that it's needed to cure the healthcare system, so that justifies ignoring the Constitution.... they're perfectly willing to just ignore the most fundamental rules of our society when it gets them something they want. Nevermind that this gives even more power to the other side to ignore rules and do things that are even more extreme and dangerous.

Precisely. The idea that you can agree with someone's goals but not their methods is being buried deeper and deeper. Every action, movement, or moment is immediately accelerated to the "but if this doesn't pan out for our side, it means their side wins!" stage. The health care reform law, as much as I want to see enacted in some form, became less and less about fixing the system and more and more about not letting those Republicans win. And that's where we are now. People defending it not because it's a good fix, but because it means giving ground back in some sort of zero sum war we're all convinced we're fighting in.

Aetius wrote:

He's only doing that to support his own argument - which gains him nothing.

Obama said at a press conference on Monday that the Supreme Court declaring the health care law unconstitutional “would be an unprecedented, extraordinary step of overturning a law that was passed by a strong majority of a democratically elected Congress.”

I quoted Obama's other argument because it's a appalling grade-school "but they're doing it too!" argument. To hear such an argument from the sitting President of the United States should scare everyone, or at least everyone who thinks that government should be constrained by the Constitution in at least some way.

It's not a "but they're doing it too!" argument. It's a "if you thought those earlier decisions were judicial activism, you've GOT to think this is judicial activism" because there's SO much less restraint here.

Liberals have never argued that judicial activism does not exist: they've just argued that conservatives use that catch phrase as rhetoric in place of rational argument. I mean, I recognize there's such a thing as "arguing semantics" but that doesn't mean that people can just utter the phrase and that's the end of the discussion.

Malor wrote:

I'm seeing that exact thing in the push for the individual mandate from the left... they just dance around and around the fact that Congress really was never granted the power to do any such thing.

Congress was never forbidden the power, either. Let's not pretend there's some trail of tradition on interpreting the Commerce clause where the Inactivity Argument has won the day, or where there's even been a nod to the idea: I've been poking around and I haven't found any. The closest I've seen are Kennedy's comments on a general idea in Anglo-American law that inactivity of a random person has rarely been regulated.

There maybe be good reasons for the Supreme Court to find the ACA unconstitutional on the basis of the Inactivity Argument, but pretending fear of broccoli is right there in the Constitution if people would just read it is the real rationalization going on here.

Bloo Driver wrote:

The health care reform law, as much as I want to see enacted in some form, became less and less about fixing the system and more and more about not letting those Republicans win. And that's where we are now. People defending it not because it's a good fix, but because it means giving ground back in some sort of zero sum war we're all convinced we're fighting in.

I'm going to disagree. People are defending it because if it's upheld, it means--at the very least--Congress has to either fix things the right way or live with Obamacare. Heck, if it broke the deadlock on health care reform, I'd even be willing to live with a Republican fix for health care. Of course:

In 1993, at the height of President Bill Clinton's health care reform initiative, Sen. John Chafee, R-R.I., along with 19 other Republicans and two Democrats, put forth a bill which was considered the major GOP proposal. One of the co-sponsors was then-Sen. Dave Durenberger, R-Minn. The bill, just like the Democratic version, never passed. But in a sense, it's been revived this year.

In fact, the key provisions in the Chafee bill may seem familiar, as they bear a strong resemblance to those in the current Democratic Senate bill, and now in President Barack Obama's proposal. A mandate that individuals buy insurance, subsidies for the poor to buy insurance and the requirement that insurers offer a standard benefits package and refrain from discriminating based on pre-existing conditions were all in the 1993 GOP bill.

http://www.kaiserhealthnews.org/Chec...

Aetius wrote:

I quoted Obama's other argument because it's a appalling grade-school "but they're doing it too!" argument.

Next time you do that, you should strongly consider emphasizing the part that's actually relevant to what you're trying to say, rather than the part that's not.

Hypatian wrote:
Aetius wrote:

I quoted Obama's other argument because it's a appalling grade-school "but they're doing it too!" argument.

Next time you do that, you should strongly consider emphasizing the part that's actually relevant to what you're trying to say, rather than the part that's not.

And find the part that actually makes that point, too, because it still looks like highlighting hypocrisy. And he's not alone in noting it, what with Scalia spewing out the standard issue Fox talking points and all. Really, I find that way more chilling and appalling.

Malor, your retraction does you credit.

SpacePPoliceman wrote:

And he's not alone in noting it, what with Scalia spewing out the standard issue Fox talking points and all. Really, I find that way more chilling and appalling.

So that's what Scalia learned at all those Koch Bros. "events" he attended.

CheezePavilion wrote:

I'm going to disagree. People are defending it because if it's upheld, it means--at the very least--Congress has to either fix things the right way or live with Obamacare. Heck, if it broke the deadlock on health care reform, I'd even be willing to live with a Republican fix for health care. Of course:

I don't mean to imply it's the ONLY reason people are defending it. It's just the loudest. I constantly hear about how it's a broken, crappy bandaid, but at least those Republicans were given what for, wot wot.

I think a lot of the more rational people are fully aware that it's effectively a Republican bill. But they're not the loud folks dominating the debate, sadly.

Congress was never forbidden the power, either.

That's not how the Constitution works. It is a system of enumerated powers. If Congress isn't explicitly given a power, they don't have it. It says so right in the document!

But liberals want that mandate so bad that they're willing to pretend Congress has that power, to the point of sticking their fingers in their ears and singing 'lalalalala' when you point out that this isn't the case.

But, eventually, the Reputlicans will retake power, and they will use those exact same arguments to invade your life and privacy in startling and extremely unpleasant ways.

Malor wrote:
Congress was never forbidden the power, either.

That's not how the Constitution works. It is a system of enumerated powers. If Congress isn't explicitly given a power, they don't have it. It says so right in the document!

No it doesn't. They're explicitly given the Commerce power. Not the Commercial Action power. It says nothing about action or inaction: it says "regulation" and that's what the case is about: does regulation extend to inaction and is action/inaction the way we should understand that word "regulate" in the first place.

But liberals want that mandate so bad that they're willing to pretend Congress has that power, to the point of sticking their fingers in their ears and singing 'lalalalala' when you point out that this isn't the case.

Look, until the Teabaggers and residents of Galt's Gulch got rolling on this (and even then it took a while), there was no serious question about the constitutionality of an individual mandate: this was a Republican idea before it was Obamacare. This has been upheld by liberals and conservative Federal judges alike.

The Inaction Argument is a brilliant tactic. It's a tactic no one saw coming. It's an argument I lean towards being convinced by, its provenance notwithstanding--even a broken clock is right twice a day.

What it is NOT is what you're pretending it is here: some kind uncontroversial bedrock of constitutional law that requires people to be unprincipled uber-liberals to remain unpersuaded by.

But, eventually, the Republicans will retake power, and they will use those exact same arguments to invade your life and privacy in startling and extremely unpleasant ways.

Maybe, maybe not: but that's not a 'text of the Constitution' argument either.

It says nothing about action or inaction: it says "regulation" and that's what the case is about: does regulation extend to inaction and is action/inaction the way we should understand that word "regulate" in the first place.

Actually, I think the usual Original Intent meaning of "regulate" is "to make orderly" or "to control according to a plan". The idea of the Commerce Clause was to make sure interstate commerce went smoothly, without states or foreign countries imposing restrictions or benefits on each other that were not imposed on other states as well.

That's not how the Constitution works. It is a system of enumerated powers. If Congress isn't explicitly given a power, they don't have it. It says so right in the document!

Not only is this wrong, it's bad wrong. There was an attempt to formulate the 10th as "The powers not expressly delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.", but it failed in the House and the Senate. "Expressly delegated" in constitutional law means "explicitly granted by the Constitution" whereas "delegated" means "granted by the Constitution or by act of Congress".

That's why the 10th is viewed as a legal truism. It says that the federal government can't use any powers it is not granted. Who grants powers? The Constitution, of course, but also Congress. That's the part you're missing, Malor. You're using a formulation that was explicitly rejected at the time the 10th was put together.

That this provision was not conceived to be a yardstick for measuring the powers granted to the Federal Government or reserved to the States was firmly settled by the refusal of both Houses of Congress to insert the word “expressly” before the word “delegated,” and was confirmed by Madison’s remarks in the course of the debate which took place while the proposed amendment was pending concerning Hamilton’s plan to establish a national bank. “Interference with the power of the States was no constitutional criterion of the power of Congress. If the power was not given, Congress could not exercise it; if given, they might exercise it, although it should interfere with the laws, or even the Constitutions of the States.”

Hopefully this corrects that mistake pretty clearly. The issue here is not whether the federal government can regulate trade. It can, and quite expansively. The issue is, does it exceed it's power in relation to the states powers in any particular regulation. And that's a very different question.

Today, the Court acknowledges that the Tenth Amendment serves two principal purposes. First, it prohibits the federal government from commandeering the states or their officials "“ from using them as mere instrumentalities of the federal regulatory agenda. Next, it (along with its spirit of federalism) protects against federal legislation that goes too far into areas of traditional state concern, areas like family law. But these are loose constraints, easily bypassed by the federal government "“ for example, by conditioning federal spending (instead of regulating directly) to achieve federal ends. Moreover, any enclave of traditional state concern is necessarily ill-defined and eroding with increasing national integration. In the wake of Comstock, and in the mine run of federal legislation (that is, non-commandeering legislation), the Court's approach to the Tenth Amendment is clear: It states but a truism.

It's hard to stress enough that while we can come up with all kinds of interesting interpretations, the established case law and history around the Constitution don't change just because someone gets an interesting idea in their mind. If we're going to discuss this usefully, we have to be constrained by the real world, at a minimum.

That's why the 10th is viewed as a legal truism. It says that the federal government can't use any powers it is not granted. Who grants powers? The Constitution, of course, but also Congress.

Oh, for f*ck's sake, are you actually asserting that Congress is not the Federal government?

If you realize they're the same things, then if the Constitution says that Congress can grant itself any power, then why even have a Constitution? And, especially, why have wording that explicitly says that Congress doesn't have powers it's not granted in that document?

Your mental gyrations really upset me.

Did you read either of the cites? That's not what I'm asserting. Neither are these "mental gyrations"; they are positions drawn from reference materials provided by one of the better law schools in the country.

Your observation that the 10th does nothing to limit the federal government's power is accurate, though. You can see from the references that it was regarded as restating other parts of the Constitution, rather than adding anything. It does not stand by itself.

From the second article cited earlier, bolding is mine:

In a Constitution full of vague and ambiguous terms, the Tenth Amendment is remarkably clear. It merely says that "[t]he powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people." By its plain terms, then, the Tenth Amendment simply underscores what we already know from the main body of the Constitution: the federal government is one of enumerated powers; and, as far as the federal Constitution is concerned, any power not enumerated in the Constitution is left to the states. In a federal system like ours, this is mere tautology, or in the words of the Supreme Court, a "truism." It does nothing to limit federal power, or to expand the powers of the states.

Moreover, the broader text of the Constitution confirms that the Tenth Amendment does not limit federal power. If anything, the Tenth Amendment recognizes potentially expansive federal power. That is because the enumerated powers in Article I, Section 8, themselves are deliberately vague and potentially capacious "“ designed by the Framers not as a rigid code, but as pliable principles to endure over time. Consider the clause at issue in the cases challenging the ACA, the Commerce Clause: "The Congress shall have Power To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes." Terms and phrases like "to regulate," "commerce," and "among the several states" are inherently indeterminate and susceptible of a wide range of interpretations, especially as society, technology, and trade change and evolve. (If there is any doubt that these terms and phrases are ambiguous, look at two hundred years of contentious litigation over their meanings.) The Framers knew how to write more specific and defined clauses, but they didn't. Instead, they wrote the enumerated powers vaguely.

Now consider the mighty Sweeping Clause, which acts like an exclamation point at the end of the list of enumerated powers in Article I, Section 8. It says that Congress has 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." This gives Congress the power not only to effect the enumerated ends in Article I, Section 8, but also the power to effect any reasonable, unenumerated means to achieve those ends. Like other congressional authorities, the Sweeping Clause (or Necessary and Proper Clause), too, is deliberately vague and potentially capacious, giving Congress broad powers.

The Tenth Amendment only validates these authorities; it does not limit them. Thus the principal question for the Tenth Amendment is only whether Congress has authority in the first place. If Congress has authority "“ and, as above, it could have quite broad authority "“ the Tenth Amendment is irrelevant. (If Congress has authority, we should note, another clause in the Constitution, the Supremacy Clause, would quash contrary state action.) If, on the other hand, Congress lacks authority, the Tenth Amendment only reserves the power to the states, or to the people. In either case, the Tenth Amendment itself says nothing about the scope of any sovereign's power. Instead, the constitutional text makes clear that the Tenth Amendment merely reminds us how power is allocated in our system of dual sovereignty: when the federal government lacks power, the states, or the people, have it.

Look, Robear, your whole edifice just flat doesn't work. If Congress can just grant itself any power it wants, then why is there the big huge process of changing the Constition? And why can the Supreme Court tell Congress to drop dead, that it's doing something unconstitutional?

You're just completely disconnected from the actual history and intent of the document. The people have ALL the rights to begin with. They granted a small set of powers to Congress, explicitly enumerated. Look up 'enumeration of powers'. The power comes from THE PEOPLE, and it is conveyed by THE CONSTITUTION. Congress is inherently very limited; they are always, always, always subservient to the Constitution.

Then the people in the various states ceded rather a lot more of their rights to the state governments. In many cases the state Constitutions closely parallel the Federal one, but not always. (cf: Tennessee Constitutional requirement that anyone who holds office in TN be a deist and specifically believe in an afterlife.) And if the people in a given state didn't give their state government a power, then they don't have it either, and that thing can't be done.

If Congress wants a power it doesn't have, it cannot just pull the power out of its ass. It has to go to the people and get permission, via Constitutional amendment. Or, the entire Constitution can be rewritten at a Constitutional Convention. These are the only ways by which Congress is supposed to gain power, ever.

What we've had is a compliant Supreme Court that liked the War on Drugs, and has interpreted the Commerce Clause in ridiculously stupid ways to support it. That doesn't mean they're right, it just means they fear drugs more than they respect the Constitution.

Malor wrote:
That's why the 10th is viewed as a legal truism. It says that the federal government can't use any powers it is not granted. Who grants powers? The Constitution, of course, but also Congress.

Oh, for f*ck's sake, are you actually asserting that Congress is not the Federal government?

Maybe you guys are talking cross-wise at each other here?

http://en.wikipedia.org/wiki/Nondele...

Look, Robear, your whole edifice just flat doesn't work.

Which part of "the argument comes from mainstream law" did you not understand? Because you're yelling at me about whether CONGRESS is subservient to the CONSTITUTION, which it is, and I never said it wasn't.

But as for the *explicit* enumeration, sorry, you're wrong there, and I've cited legitimate accounts of the history and the case law about that. The Constitution is deliberately in vague in parts, and this is one of them. Contrary to your assertion, the federal government's power is *not* limited in the way you say it is. Here's the relevant point: Congress has 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." Can you tell me which powers are *explicitly* enumerated here, as you assert? You can't, because it's not explicit about those powers. And the 10th does not modify this at all.

The power in question is the Commerce Clause, which runs "To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes." That's an enumerated power, yes. But there's nothing in there that says that Congress can't regulate or control in other ways the health insurance markets. It's pretty vague. You may not like that, but you're picking an arbitrary point for the limit, not one that's based in the Constitution itself.

Consider the difference between "explicitly enumerated" and "enumerated" before you jump on me again. You're arguing that Congress was "never granted the power" to put something like the ACA in place. That's wrong, whether you like it or not. Congressional power is a lot broader than you believe. Just try to tell me what's *explicitly* enumerated in the phrase "provide for the...general welfare of the United states".

Cheeze, that's a good point, but the point here is not delegation of powers, but rather whether the powers granted by the constitution are limited by the 10th Amendment, or not. They are not. They are not even fully enumerated, as the grants of power are deliberately vague. While Malor can disagree with that as an idea, it does not bear on the ACA, because he's espousing an interpretation of the Constitution that is not supported in current case law or by the history.

"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." Can you tell me which powers are *explicitly* enumerated here, as you assert? You can't, because it's not explicit about those powers. And the 10th does not modify this at all.

Which shall be necessary and proper for carrying into Execution the foregoing Powers.

No new powers. The foregoing powers.

The entire idea of Congress being able to take new powers for itself is NOT BASED IN THE CONSTITUTION, it's based on the unratified-by-anyone opinion of a single Supreme Court justice from ages ago. The Constitution clearly and directly says, "Here, Congress gets these powers. It can make laws to exercise those powers. All other powers are held by the states and the people."

It says that absolutely clearly, in plain language that's perfectly readable even to someone 200 years later. THAT was the deal we collectively made, and for that deal to change, we need to collectively make it again.

Otherwise, it's just, "Everyone is equal", ratified by everyone, and then quietly adjusted to say "but some people are more equal than others".

Malor wrote:

The entire idea of Congress being able to take new powers for itself is NOT BASED IN THE CONSTITUTION, it's based on the unratified-by-anyone opinion of a single Supreme Court justice from ages ago.

That's a pretty potent opinion to cite, since the Supreme Court has the job of deciding what the constitution means. Incidentally, that's a power that is cited nowhere in the text of the constitution.

The entire idea of Congress being able to take new powers for itself is NOT BASED IN THE CONSTITUTION, it's based on the unratified-by-anyone opinion of a single Supreme Court justice from ages ago.

And again, this is not about Congress taking entirely new powers, it's about the interpretation of the powers already granted. You're acting like they are listed out, but they aren't. Which part of the Constitution talks about regulating airlines, again? There are several powers given that could cover a health care law; the Commerce Clause is the one the administration hung it's hat on, and there's nothing in that or in the other parts of the Constitution that says that Congress can't regulate health care or health insurance.

The point is that the powers granted by the Constitution are *not* explicitly listed; they are ambiguous within broad categories. I know you don't like it, but there's nothing in the Constitution that prevents a wide scope of powers from being implemented. And the back and forth in the case law, while it lands mostly on the expansive side, supports that.

The Supremes could indeed find that the government over-reached. But it won't be because it was trying to take some power it didn't have the right to. It'll be because they claim some fault with the justification, or the implementation of part of the law.