As he promised, the Attorney General has filed suit against the Departments of Health and Human Services, claiming that portions of the health insurance reform law signed today by President Obama is unconstitutional.
.
Here’s a link to the AG’s complaint.
.
I’ll provide my analysis when I get a chance to read the complaint, but I wanted to make sure everyone had access to the document if they care to read it before it gets spun by the press and the liberal blogosphere.
![[Post to Twitter]](http://www.tooconservative.com/wp-content/plugins/tweet-this/icons/tt-twitter.png){kind=icon}
Mar 23rd by Brian S
The Commonwealth was very smart to have adopted a law this session making the federal purchase of insurance requirement illegal in Virginia. It sets up the lawsuit beautifully.
Only in Republican dreams where confederate, er, state laws supercede Federal law.
“Petition in Support of Virginia Attorney General Ken Cuccinelli’s Suit to Overturn the Health Care Individual Mandate”
From The Cuccinelli Compass, it appears he is still campaigning and that he is filing the suit all alone and not on behalf of the Commonwealth.
How pissed off will you Dems be if the court actually rules in his favor? Will Cooch overtake Sarah Palin on your collective shit lists?
Best thing for the dems. The Cooch is so “special”. Keep it up!
What are you saying NJSM, we’re all racists here in VA if we support the AG’s suit? When all else fails, cry racism. Liberal Playbook noted.
NJSM has obviously never read the Constitution. Especially the 10th Amendment.
LL, I think he’s talking about nullification, not racism.
.
But anything is possible.
Monk has it right. AG Cuccinelli and Del Marshall are two of a dying breed of politician who care what the Constitution actually says. Just because Congress passes a law doesn’t mean it’s just, or that it is constitutional.
*
We’re not the only state doing this, either. The AGs in South Carolina and Florida are filing suit too, and I understand there will be more soon.
Thirteen states filed with Florida; Va filed here in the eastern district of Va.
This isn’t nullification. The nullification argument states that the states have the authority to nullify VALID federal laws within the borders of the states. That’s completely wrong and has been confirmed by both the Supreme Court and the United States Army and no one wants to go there again.
.
The point being, this isn’t a valid federal law because it is unconstitutional. I’ll do a more in depth write up tomorrow. While I have disagreed on legal points with the AG before, I think he’s 100% right here.
So this is what change looks like… tax and hate….McCotter floor remarks…
http://www.youtube.com/watch?v=1Pte_2vEnX8&feature=player_embedded
States that sued today:
Alabama, Colorado, Florida, Idaho, Louisiana, Michigan, Nebraska, Pennsylvania, South Carolina, South Dakota, Texas, Utah, Virginia and Washington,
The other states sued in the Norther District of Florida, complaining that the expanded federal mandates, and expansion of medicaid will bankrupt them. Here is the complaint:
http://myfloridalegal.com/webfiles.nsf/WF/MRAY-83TKWB/$file/HealthCareReformLawsuit.pdf
The suit is meritless and has no chance of winning. It’s a complete waste of taxpayer money – that is, unless there’s some entertainment value in it.
As I mentioned on my blog, “While government-required health insurance is another step in Obama’s run to an authoritarian state, Cuccinelli’s legal challenge is foolish. At the heart of his suit rests the belief that the federal government lacks the authority to trump state law on the issue. I think we’ve been through this one before – the North won.”
Here’s a simple request for the statists: tell me what part of the Constitution gives Congress the power to do what they have done with this law.
Racial preferences in the new health care bill:
http://michellemalkin.com/2010/03/23/racial-preferences-in-obamacare/
Lloyd you need to look at paragraph 15 of Cuccinelli’s complaint — the Senate Congressional Research Service was asked if the bill would be constitutional… you need to read what they said!
Also read the Florida complaint.
And it is not just Republicans– it is Democratic AG’s as well who have filed suit… Louisiana. Pennsylvania..
Jack, not going to claim the silly title of statist (although I know it’s all the rage in fringe right wing circles) but I’ll take a shot at your question.
.
I believe the answer is Article I, Section 8.
.
I bet that when it gets to them the Supreme Court will agree.
Sally, that paragraph doesn’t make any difference. The fact that someone has doubts about its constitutionality, even if it’sa legislator, won’t matter one bit. The legal underpinnings of the suit, that is, the contention that there is no interstate commerce involved and thus no power of Congress to regulate the activity, has long been rejected in similar situations. Look at the suits challenging the Civil Rights Act, for example.
Cuccinelli and the other AGs have no chance of winning. In fact, I’ll take bets that the complaint will be dismissed by the district court, the dismissal will be affirmed by the court of appeals, and the Supreme Court will deny cert. This isn’t even a close case.
legality aside, look at the political spin on this too. count the number of AGs that have filed suit that are running for governor this year. Sally, I’ll use your list. of the 14 listed states that have filed suit, 11 have gubernatorial elections in november, and of those 11, 3 are running for governor.
If this suit fails then we might as well toss the 10th Amendment because the courts will basically be saying that there is NO LIMITATION to the interstate commerce clause.
Del Englin has stooped to a phone campaign against the AG. He says the lawsuit is a waste of taxpayer dollars.
Well if this lawsuit is a waste of taxpayer dollars, then the Law itself makes the waste in the lawsuit negligible by comparison! I say we should take his lead and let Del Englin know how wasteful it is for him to support this Obamacare abomination and that he’s wasting the taxpayer dollars by trying to jam the AG’s phones. Call Del Englin today and let him know the AG is doing his job defending VA laws against Federal oversteps in authority and that Englin could have voted to increase revenues to the state by supporting offshore natural gas drilling. Instead he voted against it, now that vote WAS a waste of the taxpayers money!
Call him here:
Delegate David Englin
301 King Street, Box 65
Alexandria, VA 22314
Email: DelDEnglin@house.virginia.gov
Phone: 703-549-3203
And one of them is a Democrat, Local. Regardless, the suits are appropriate because this is a legitimate issue of constitutional import.
This is all very entertaining, but none of it is very good law. But the cases will, by and large, not be decided before November, so they will provide some grist for the political mill as we get into the mid-term elections. It will take some devices such as this to keep the mob at a boil over the coming months.
Local, What do you actually think of the AG’s suit? Your political analysis is super, but will you continue to be consistently anti-constitution?
Englin is the Arlington delegate who sent all those stupid mailers into Loudoun and western Wairfax against LeMunyon, where he claimed he knew Caputo had attended the transportation session because he was there—–until somebody published his own absence record during the session.
Dorothy, I received the CC with the link to the petition, and the first paragraph clearly states “Virginia filed suit to overturn the individual mandate on citizens to purchase health insurance.”
It may be that the fact that he is the attorney general of VA is still personal for you?
Brian,
I like to think of myself as a cynic when it comes to politicians. They never do things for anything but personal gain, ever. That includes Cooch.
.
LL.
as much as I want this bill overturned, it doesnt seem off hand (and I am wording this very carefully because I’m sure you’ll immediately resort to calling me a pinko-commie as soon as I say this, and you’ll inevitably try to put words in my mouth as usual) that there is a legal argument against this bill on the grounds that Congress doesnt have the right to regulate insurance. It’s not explicitly written in the Constitution, but take a took at the past 70 years of Supreme Court cases that have to do with the commerce clause and you will see that, should this question be raised, the court would have to reverse itself (which has happened hundreds of times before of course) in order to overthrow the law. the SC has ruled that the commerce caluse can be interpreted to give Congress the power to regulate activities that have a “substantial effect” on the economy. as you and many others have pointed out, the healthcare industry, which health insurance is apart of, accounts for 1/6 of the economy. Health insurance itself accounts for 16.2% of the entire GDP. if 1/6 of the economy, and 16.2% of the GDP does not fall into the “substantial effect” part, then nothing does. Further, the Supremacy Clause of the constitution explicitly states that any state law that directly contradicts federal law will be declared null and void. In the case Edgar v. Mite Corporation the test was that when conflict between state and federal law comes into play, if “state law stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress…” then the supremacy clause would be triggered and thus the state would be overruled. Also, look at Wickard v. Filburn.
LL,
and you like to throw around the constitution a lot, except when it inconveniences you, like the commerce clause, and the supremacy clause.
Now, that’s not to say that some provisions of the bill couldnt be overturned on other grounds of course.
The Administration’s motion to dismiss Cooch’s suit filed in the Eastern District of Virginia (known locally as “The Rocket Docket”) could, and probably will, be decided by the district court well in advance of the November elections. Thus, a double whammy — a worthless suit and a contrary decision — that will only validate the Democrats position. Cooch’s suit, therefore, is a bad idea both legally and politically.
“I believe the answer is Article I, Section 8.” -Dan
Yes, Dan, that IS where Congress’ powers are defined. Now, WHICH part of that section gives Congress the power to do ANYTHING that this bill does.
To be clear, that requires two things. First, specify one part of the new law. Then, cite a SPECIFIC power that Article I, Section 8 gives Congress that allows it to do the thing you specified.
The suits were filed in two conservative federal district courts, and inevitably there will be appeals in the federal system, and ultimately, consolidation to the Supreme Court. Not likely to be resolved before the elections, but there will be a push to make this happen fast.
*
There are reports that up to 36 states will sue. Missouri is the latest litigant. This is not a “worthless suit” but litigation that raises serious issues.
No, Sally. It is worthless.
I look forward Brians additional comments. having read the Complaint this very simple.
The feds case is based on the commerce clause. AG Ken C’s Complaint for Inventive relief is very simple, narrow and correct.
In order for the Feds to regulate Insurance under the Commerce Clause, then interstate commerce must have occurred. The absence of Commerce makes their action unconstitutional. The feds want to compel you to buy a product, if you buy the product that would be commerce. If you do nothing that is the absence of commerce. The feds can not fine a human being for A. simply existing and B. doing nothing. If I elect of my own free will NOT to engage in commerce ( buy Health Insurance ) that is my decision as a free person.
Let’s think about this for a second. If the Gov’t can fine us for doing nothing under the premise that the absence of commerce is actually commerce then they can compel / fine us to do virtually anything. If doing nothing can be defined as commerce then our federal Gov’t is free to make the argument that the commerce clause now includes all human behavior and the act of two parties engaged in the exchange of goods and services or under mutual consent are signatures to a contract is no longer needed.
This basic constitutional issue is not regulating insurance. The issue here is a blatant attempt to force private parties to engage with other private parties in economic transactions. This has due process (5th and 14th amendment) overtones; the legal analysis doesn’t start and end with the Supremacy and Commerce clauses — not even close. And if you buy into Roe v. Wade (which I don’t, there isn’t a chance in the world that Roe v. Wade would have come down from the Supremes in 1974 if they had today’s technology and could have seen the lively behavior of early term babies the way I did with my kids) the Health Care bill raises profound issues about people’s ability to control their own bodies; it crashes repeated against the shoals of the privacy penumbras explicated in Roe.
The federal government has the authority to regulate INTERSTATE commerce. How is deciding to save your money, not buy health insurance, and pay cash for visits to your local doctor, who only practices in Virginia, interstate commerce?
Let me add that the VA Ag’s civil action will only address the part of the law that forces someone to buy a product. the rest of the bill will stand unless it falls to other suits filed by the other states. Their complaints from my understanding are broader than the VA action.
“No, Sally. It is worthless.
Lloyd the Idiot
on March 24th, 2010
Might I suggest you read both the commerce clause and the VA complaint.
Let us also examine the word “regulate,” which is basically to make things regular, i.e., the same throughout the nation.
It does not mean “to have absolute cotrol over” something. If that were the case, and “interstate commerce” is extended to mean anything that might conceivably have any impact at all on interstate commerce, then the rest of the delegated powers are redundant, because Congress would already have absolute power to make any law they choose, and the Tenth Amendment would have no meaning either, because there would be no powers NOT delegated to the United States.
Maybe we should limit the family income of any trial lawyer who litigates tort issues to $250,000 family income, under the commerce clause! J.K. But same rationale!
I believe the answer is Article I, Section 8.
.
I bet that when it gets to them the Supreme Court will agree.
Dan
Simple question. Is it your contention that doing nothing is actually commerce. Is it your contention that when ordered to engage in commerce under penalty of law and you choose not to comply (aka you do nothing ) you are actually engaged in commerce ?
One can be for this legislation’s intent and against that portion of the law that forces citizens to engage in commerce on grounds it is unconstitutional. However it is the unconstitutional portion of the bill that provides for a large chunk of the funding and therefore some will make excuses or turn a blind eye to the illegality in order to serve the greater good. This is very very dangerous. One only has to ask whats next ?
Jack, I am not a constitutional lawyer. I have never pretended to be one. So, it would be kinda pointless for me to pretend to construct a legal case one way or another on whether or not this bill will withstand the legal challenges to it. Plenty of poorly informed people are doing that all over the internet. My participation is not required for that circus to go on ad nauseam.
.
You asked a very simple question. One that a layman can easily answer. And I gave you the very simple and direct answer to that question. Article I, Sedction8.
.
Now the courts may take the view that this section of the constitution does not provide proper authority in this instance for this action. Or they may rule that it does (I think the far more likely outcome). But in either event, Article I, Section 8 is the answer. That is where the authority resides.
.
We live in a time when lots of fanciful notions about the Constitution are being very loudly expounded upon by people who don’t seem to know much about the subjects they speak to with such passion. They often give the impression that we have all time traveled back to 1830. They would have you believe that secession and nullification are still open questions. It is kind of amusing until you realize these people are serious. They should sue their teachers for malpractice. Especially their history teachers.
.
We will see in time if this law stands up to the scrutiny of the courts. If the Supreme Court eventually rules that any of its provisions are unconstitutional then that will settle the issue. If the Supreme Court rules that the law passes Constitutional muster then that also will settle the issue. I am sure you agree.
.
I’m sure we have all had our fill of lunatics who go around hollering about tyranny when they lose an election or have a court case decided against their favored position. Those types, who have so little faith in the American system of government, do a disservice to us all.
“the rest of the bill will stand unless it falls to other suits filed by the other states”
*
I don’t think this is correct since there is no severability clause in the HCR legislation (at least, I didn’t see one). If he wins, the entire bill goes down.
I have, G. Stone. I know the commerce clause, I know constitutional litigation, and I know the claims in the complaint. And, from this point, I’ll just let the courts prove me right.
And, for the record, I’m not saying I support the healthcare debacle, and I’m not saying that I think the federal government has overstepped its bounds. I’m just saying that a fix in the courts won’t work.
G.Stone, as I said to Jack, I am not nor do I pretend to be a constitutional scholar or lawyer. The courts will decide this in time. I won’t be spending sleepless nights awaiting the decision.
.
Assuming it passes constitutional muster, this provision goes into effect in four years. If not, major changes will have to be made.
.
You have correctly identified the real reason this bill is being attacked on this basis. It has nothing to do with high minded rhetoric about liberty. It is because without the individual mandate the whole thing won’t be sustainable.
.
If you are looking for some lawyers to defend the constitutionality of the individual mandate I would direct you to any number of lawyers who are long serving Republican members of Congress. They proposed this very thing in the 1990s. So I am sure they must have believed it was constitutional and can explain why it is.
Cato, even if an adverse decision on the mandate didn’t void the whole bill it would still effectively scuttle it. You couldn’t sustain it.
If the individual mandate were to go down, then a major economic building block relied on by CBO in its financial analysis would be wiped out, which at the very least would require the Bill’s supporters to find other sources of funding (aka increase taxes), cut coverage (aka death panels) or find other ways to shift costs (aka increase private premiums). Pick your medicine bill supporters, pick your medicine.
I think a simple lawsuit of; States Rights, the insurance industry is interstate commerce, the Obamacare race protection (discrimination) and unfunded mandate —- which about time someone sues over that. Since most of the federal judges are Republican appointees and interpret the constitution less liberally is why Florida was chosen for the class action lawsuit.
Let’s Be Free, you didn’t list all the choices. You could also simply go to a single payer system. It would be much cleaner than this bill. It would pass constitutional muster. And it would be more cost efficient as it would eliminate the large overhead of private insurance companies who add zero value to the product provided (the product being medical care, not insurance policies).
.
Be careful what you wish for. You might win a lawsuit and get a single payer system.
.
I guess there is another choice. Continue with the status quo. Just let it ride. That is what the Republicans did when they had the power to do something about it that you might have approved of.
.
Of Course, now that they are out of power, they talk big about what they WOULD do if only they were in power again.
.
Big talkers these Republicans. Lots of talk. Precious little action.
Local, Once again – I’ve never ever used the term pinko-commie, but I do call you a Democrat. Gotta be you!
*
This boils down to paying a fine. Do you think it is consitutional to force citizens, by law – to pay a fine if they do not buy a good or service? Last time I asked you gave me the car insurance answer, it is not relevant or sufficient this time.
*
I too am eager to see Brian’s analysis on this, and would ask him to share any good legal websites (you too Sally) that can flesh out how this will move through the court system and the odds on it succeeding. I keep hearing differing opinions with the common thread being that it will make it to the SC. Obviously the make up of the court is the key and looking out 12-18 months (so I read) means we could have a newly seated justice.
“If you are looking for some lawyers to defend the constitutionality of the individual mandate I would direct you to any number of lawyers who are long serving Republican members of Congress. They proposed this very thing in the 1990s. So I am sure they must have believed it was constitutional and can explain why it is.”
*
I heard one great legal analysis that correclty points out the “I know I did but so did you” mantra means nothing in a court of law. Even if were true that there were “long serving members” of the R party that proposed individual mandates – which is suspect give it is from rhetorical Dan – it has no legal bearing on this suit. Our legal system not based on who has tried and gotten away with anti-consitutional mandates – so the “R’s tried this or that” or “Richard Nixon proposed a similar bill” does not fly. Stop using it.
Dan, your answer amounts to “Article I, Section 8 gives Congress authority to do whatever it wants.” Is that correct?
Back in the 1780’s, the PEOPLE debated the Constitution and whether it should be ratified or not. It was not written for LAWYERS, but for The People. Go read Article I, Section 8, and see whether you can find in there a clause that gives Congress the power to do anything that it is doing in this law.
LL.
I would follow Mark Levin’s Landmark Legal Foudation, Jay Sekalow’s ACLJ, and the Thomas Moore Center’s commentary–and websites– I understand all three groups, well thought of Constitutional think tanks, are also filing suit…
Thomas Moore Cntr (based in Michigan) did file suit already:
http://www.thomasmore.org/downloads/sb_thomasmore/TMLCFilesCourtChallengeMomentsAfterObamaHealt.pdf
Loudoun Lady, you might try using the googles if you are too young to remember the Republican proposals from the 1990s. That would be a more effective way of verifying that they did indeed make the same proposals they now claim are unconstitutional. Much more effective than being dismissive and expressing doubt of this very easily verifiable fact. That is too convenient a dodge.
.
I never said this somewhat hypocritical complete change of position on the part of these Republicans had any bearing on any legal case including our own AG’s lawsuit. I merely said that I am not a lawyer and that the Republicans who proposed this very thing ARE lawyers and therefore might be able to explain why it is constitutional since they must have believed that it was or they certainly wouldn’t have proposed it in Congress.
One interesting twist: doctors will no longer be allowed to provide health care to anyone who is not part of an approved plan.
*
The thomas moore suit is interesting in that one of the Plaintiffs they represent is a vet who was put on the waiting list for care by the Vets Admin, and told to purchase private insurance, but is healthy and has refused to do so, waiting on the list until they say he can get all of his health care from the Vets Admin… not sure I understand it all, but interesting to read the allegations…
Another thought: so it is a right to be able to own a gun. Since it is a right, can the government force us to buy guns and defend ourselves? or pay a fine for not owning a gun?
*
Is is a right to be able to work? Are we being deprived of that right if there is no public transportation? Is it therefore a right to be able to drive to work if no public transportation exists? Can the govt force us to pay into a system where everyone who does not have public transportation is given a car, say a GM car? if this is deemed to be a right?
*
the logic of this health care bill, if upheld, means that there could be lots of “rights” expanded and regulated through the commerce clause…
“Dan, your answer amounts to “Article I, Section 8 gives Congress authority to do whatever it wants.” Is that correct?”
.
No. That is absolutely incorrect. And I said nothing that would even remotely indicate that is my position.
.
Do you always attempt to debate what you would like to think someone else might have said instead of what they actually said?
.
It is preposterous to think that Article I, Section 8 of the Constitution gives Congress the power to do anything it wants. And while that contention would give you a great launching pad for some of what I suspect might be some rather interesting constitutional theories you may hold, I certainly never said anything that indicated that I hold that view.
.
The Court will decide whether or not the Congress has the authority to impose the individual mandate. That decision will be based on the Court’s reading of Article I, Section 8. Therefore, if the Court rules that the authority exists, the authority will derive from Article I, Section 8.
.
That is a simple straightforward answer to your specific question. And it in no way implies a belief that “Article I, Section 8 gives Congress authority to do whatever it wants.”
.
Whatever authority Congress does or does not have in this area will thankfully be decided by the Supreme Court. Not a bunch of folks wearing tri-corner hats who think secession is still an option and who think tyranny is when the other guy wins the election.
Thanks Sally, I used to be on Jay’s ACLJ distribution list so I think it is time to sign back up. He is excellent. And lord yes on Levin!
*
Dan, Whether or not Nixon, the Republicans, or the Heritage foundation proposed a bill that is exact or similar – or called for an outright single payer system – is not the point. The point is – bringing up Nixon or the rest as a defense has no legal bearing on this suit. None of those plans (if they existed) became law. If you want to continue to piss and moan about the Republicans in the 1990’s – be my guest! It has no relevance to this suit.
Loudoun Lady, slow down, baby. Read what I said. I NEVER said that the hypocrisy of some of the currently serving Republicans has any bearing on the legal case.
.
I merely pointed out that they MUST be familiar with the affirmative argument as to its constitutionality since they MUST have believed that it was constitutional. Or do you believe they proposed it even though they believed it to be unconstitutional?
.
I agree with you about the previous proposals. I never said Republican flip flopping has any bearing on the legal cases. It does not.
You better be careful. I may start to get the impression you don’t love me anymore.
just a few pages of review:
Page 22 of the HC Bill: Mandates that the Govt will audit books of all employers that self-insure!!
Page 30 Sec 123 of HC bill: THERE WILL BE A GOVT COMMITTEE that decides what treatments/benefits you get.
Page 29 lines 4-16 in the HC bill: YOUR HEALTH CARE IS RATIONED!!!
Page 42 of HC Bill: The Health Choices Commissioner will choose your HC benefits for you. You have no choice!
Page 50 Section 152 in HC bill: HC will be provided to ALL non-US citizens, illegal or otherwise.
Page 58 HC Bill: Govt will have real-time access to individuals’ finances & a ‘National ID Health card’ will be issued! (Papers please!)
Page 59 HC Bill lines 21-24: Govt will have direct access to your bank accounts for elective funds transfer. (Time for more cash and carry)
Page 65 Sec 164: Is a payoff subsidized plan for retirees and their families in unions & community organizations: (ACORN).
Page 84 Sec 203 HC bill: Govt mandates ALL benefit packages for private HC plans in the ‘Exchange.’
Page 85 Line 7 HC Bill: Specifications of Benefit Levels for Plans — The Govt will ration your health care!
Page 91 Lines 4-7 HC Bill: Govt mandates linguistic appropriate services. (Translation: illegal aliens.)
Page 95 HC Bill Lines 8-18: The Govt will use groups (i.e. ACORN & Americorps to sign up individuals for Govt HC plan.
Page 85 Line 7 HC Bill: Specifications of Benefit Levels for Plans. (AARP members – your health care WILL be rationed!)
Page 102 Lines 12-18 HC Bill: Medicaid eligible individuals will be automatically enrolled in Medicaid. (No choice.)
Page 12 4 lines 24-25 HC: No company can sue GOVT on price fixing. No “judicial review” against Govt monopoly.
Page 127 Lines 1-16 HC Bill: Doctors/ American Medical Association – The Govt will tell YOU what salary you can make.
Page 145 Line 15-17: An Employer MUST auto-enroll employees into public option plan. (NO choice!)
Page 126 Lines 22-25: Employers MUST pay for HC for part-time employees ANDtheir families. (Employees shouldn’t get excited about this as employers will be forced to reduce its work force, benefits, and wages/salaries to cover such a huge expense.)
Page 149 Lines 16-24: ANY Employer with payroll 401k & above who does not provide public option will pay 8% tax on all payroll! (See the last comment in parenthesis.)
Page 150 Lines 9-13: A business with payroll between $251K & $401K who doesn’t provide public option will pay 2-6% tax on all payroll.
Page 167 Lines 18-23: ANY individual who doesn’t have acceptable HC according to Govt will be taxed 2.5% of income.
Page 170 Lines 1-3 HC Bill: Any NONRESIDENT Alien is exempt from individual taxes. (Americans will pay.) (Like always)
Page 195 HC Bill: Officers & employees of the GOVT HC Admin.. will have access to ALL Americans’ finances and personal records. (I guess so they can ‘deduct’ their fees)
Page 203 Line 14-15 HC: “The tax imposed under this section shall not be treated as tax.” (Yes, it really says that!) ( a ‘fee’ instead)
Page 239 Line 14-24 HC Bill: Govt will reduce physician services for Medicaid Seniors. (Low-income and the poor are affected.)
Page 241 Line 6-8 HC Bill: Doctors: It doesn’t matter what specialty you have trained yourself in — you will all be paid the same! (Just TRY to tell me that’s not Socialism!)
Page 253 Line 10-18: The Govt sets the value of a doctor’s time, profession, judgment, etc. (Literally– the value of humans.)
Page 265 Sec 1131: The Govt mandates and controls productivity for “private” HC industries.
Page 268 Sec 1141: The federal Govt regulates the rental and purchase of power driven wheelchairs.
Page 272 SEC. 1145: TREATMENT OF CERTAIN CANCER HOSPITALS – Cancer patients – welcome to rationing!
Page 280 Sec 1151: The Govt will penalize hospitals for whatever the Govt deems preventable (i.e…re-admissions).
Page 298 Lines 9-11: Doctors: If you treat a patient during initial admission that results in a re-admission — the Govt will penalize you.
Page 317 L 13-20: PROHIBITION on ownership/investment. (The Govt tells doctors what and how much they can own!)
Page 317-318 lines 21-25, 1-3: PROHIBITION on expansion. (The Govt is mandating that hospitals cannot expand.)
Page 321 2-13: Hospitals have the opportunity to apply for exception BUT community input is required. (Can you say ACORN?)
Page 335 L 16-25 Pg 336-339: The Govt mandates establishment of=2 outcome-based measures. (HC the way they want — rationing.)
Page 341 Lines 3-9: The Govt has authority to disqualify Medicare Advance Plans, HMOs, etc. (Forcing people into the Govt plan)
Page 354 Sec 1177: The Govt will RESTRICT enrollment of ’special needs people!’ Unbelievable!
Page 379 Sec 1191: The Govt creates more bureaucracy via a “Tele-Health Advisory Committee.” (Can you say HC by phone?)
Page 425 Lines 4-12: The Govt mandates “Advance-Care Planning Consult.” (Think senior citizens end-of-life patients.)
Page 425 Lines 17-19: The Govt will instruct and consult regarding living wills, durable powers of attorney, etc. (And it’s mandatory!)
Page 425 Lines 22-25, 426 Lines 1-3: The Govt provides an “approved” list of end-of-life resources; guiding you in death. (Also called ‘assisted suicide.’)(Sounds like Soylent Green to me.)
Page 427 Lines 15-24: The Govt mandates a program for orders on “end-of-life.” (The Govt has a say in how your life ends!)
Page 429 Lines 1-9: An “advanced-care planning consultant” will be used frequently as a patient’s health deteriorates.
Page 429 Lines 10-12: An “advanced care consultation” may include an ORDER for end-of-life plans.. (AN ORDER TO DIE FROM THE GOVERNMENT?!?)
Page 429 Lines 13-25: The GOVT will specify which doctors can write an end-of-life order.. (I wouldn’t want to stand before God after getting paid for THAT job!)
Page 430 Lines 11-15: The Govt will decide what level of treatment you will have at end-of-life! (Again — no choice!)
Page 469: Community-Based Home Medical Services = Non-Profit Organizations. (Hello? ACORN Medical Services here!?!)
Page 489 Sec 1308: The Govt will cover marriage and family therapy. (Which means Govt will insert itself into your marriage even.)
Page 494-498: Govt will cover Mental Health Services including defining, creating, and rationing those services.
Page …………..
OK, Dan, let me try again. You are essentially saying that you are too stupid and/or ignorant to find any provision of the new law and find one of the enumerated powers in Article I, Section 8 that pertains to that provision of the law.
If you are so stupid and ignorant, why do you bother commenting on a blog?
One of the things that Sally’s post is beginning to unveil is that their will be a dozen or more regulatory bodies issuing tens of thousands of pages of rules regulations implementing the Bill. Their will be adjudicatory bodies, administrative law judges, endless loop touch tone phone lines, and black administrative holes. The closely connected will get their special, ground breaking cancer treatment via intervention from the constituent services operation of their local Member of Congress or Senator. Even with private plans our lives have been turned over to nameless, faceless, power-mongering bureaucrats at Health and Human Services. Really.
Jack, I may be as stupid as you say. But that is not the problem here. The problem is that you are so disingenuous.
.
You asked a very small and specific question. “tell me what part of the Constitution gives Congress the power to do what they have done with this law.”
.
I did not offer an opinion as to whether the Supreme Court will ultimately rule that Congress has or does not have the authority. And it bothers me not in the least that you might like me to do so. But I clearly answered your question. IF the Court rules that Congress does have that authority it will be derived from Article I, Section 8.
.
I don’t believe I can make that any clearer. But if you are too obtuse to understand a simple and direct response to the question you asked, I don’t think you should be calling others stupid.
.
I assume from your tone that you hold the opinion that the authority does not exist. That is fine. But, to borrow a phrase from Cactus Jack Garner, your opinion is not worth a bucket of warm piss. The only opinions that matter are those of the nine justices of the Supreme Court.
.
Once more, the authority, if it exists, derives from Article I, Section 8 of the Constitution.
.
Is that really so difficult to understand? Especially for one who expresses such great knowledge of the Constitution.
.
When you went to school, did you ride on the big bus or the little bus?
Let’s Be Free, it reveals no such thing. Unless you actually believe all that silly political rhetoric about government takeovers.
.
Most of us will be treated by private physicians in private hospitals and the bills will be largely paid by private insurance companies. Just as in the past.
.
But the implementation of this law IS definitely something we should all watch very, very closely. You are right about that.
.
As all the regulations and such are put into place you can bet the private insurance companies (whose stock prices have gone up quite nicely as this supposed “government takeover” was being enacted) and hospitals and other interested parties will be at the table with their lawyers and their money to insure they get the most favorable deal possible under the law. That would be the case no matter which party had written the law or what provisions it contained. Some things are always the same in Washington.
.
We all need to keep an eagle eye on that process to make sure average folks don’t get too badly screwed by the big boys. And remember, both political parties are largely whores for the big boys.
.
So, do all the hollering about Cuccinelli’s lawsuit and the Tenth Amendment you want. Have tea and crumpet parties. Whatever you like. But somebody better do the hard boring slog of paying attention to the implementation.
.
The devil is always in the details. And the devil always seems to favor the folks with the most money and power.
The Washington Times…Government will be growing!!!!!
President Obama’s nationalization of health care is bad enough on its own, but the plan’s implementation will require drastic measures that are just as troubling to those who value freedom. Of particular concern is the bill’s expansion of the Internal Revenue Service.
A report released last week by House Ways and Means Committee Republicans estimated that the dreaded agency’s ranks would swell by 16,500. The newly sworn agents would be charged with ensuring the public’s obedience to Mr. Obama’s health care directives. The IRS also would enjoy the enhanced powers and budgetary authority required for monitoring the health care status of 300 million Americans on a month-to-month basis. The total cost of the effort is likely to exceed $10 billion.
The investigations will gradually ramp up until 2016, when the individual mandate tax kicks in fully. After that, if the O Force wins a second term, the unprecedented levy will fall upon citizens who fail to purchase health care coverage acceptable to Treasury Secretary Timothy F. Geithner and Health and Human Services Secretary Kathleen Sebelius. IRS agents would conduct the audits and impose a fine of either $2,085 or 2.5 percent of income – whichever is greater – on disobedient households. According to Congressional Budget Office figures, this tax will generate $17 billion by 2019.
Of course, not everyone will pay. The Democrats carved out exemptions for two of its favorite constituencies: illegal aliens and imprisoned criminals. Only law-abiding citizens will face the wrath of the IRS – a wrath that can be substantial.
Consider the case of Aaron Zeff, owner of Harv’s Metro Car Wash in Sacramento, Calif. Mr. Zeff paid his taxes on time and did everything he was supposed to do. Nonetheless, a team of IRS agents descended on his business earlier this month. “They were deadly serious, very aggressive, very condescending,” Mr. Zeff said in describing the incident to the Sacramento Bee. His crime? Mr. Zeff reportedly owed 4 cents on his taxes in 2006.
That’s the type of overzealous enforcement and lousy customer service we can look forward to as IRS agents are handed more power to terrorize law-abiding Americans. The president’s plan moves us in the wrong direction. We need to dismantle, not expand, the most hated agency of the federal government. Fundamental tax reform and repeal of Obamacare would go a long way toward restoring American freedoms.
NEXT??????????????
Thank Massachusetts for the 41!
Mr. Obama, in a video message last weekend, told tens of thousands of immigrant rights supporters rallying on the Mall that he wants to try to get a bipartisan immigration bill passed this year that would legalize the estimated 11 million illegal immigrants in the country.
“Jack, I may be as stupid as you say.”
YOU are the one claiming that you are too stupid/ignorant to have an opinion on the Constitutionality of this law.
BTW, Dan, I have already agreed that, IF IT EXISTS, that power must come from Article I, Section 8. I have read it, and the bill, and have found no correlation between the two.
.
You claim to be too stupid/ignorant to even try.
“I merely pointed out that they MUST be familiar with the affirmative argument as to its constitutionality since they MUST have believed that it was constitutional.” – Don’t count on it – sadly we have knuckleheads in our party, just like you do. I don’t accept the outlined argument either, otherwise I’d have to excuse decades of bad behavior on behalf of my own party and I won’t do that.
*
“You better be careful. I may start to get the impression you don’t love me anymore.” – LOL! Danny boy, you and Eddie certainly irritate yet entertain me.
First, let me say, I don’t agree with the part of the bill that requires citizens to buy health insurance or get fined, but isn’t the whole lawsuit thing a bit hypocritical? Don’t the states require all of us to buy auto insurance? So it is OK for them to require us to purchase insurance, but not OK for the federal government to require us to purchase insurance? This is all more political grandstanding.
Jack, my but you are an angry man. The fact that I feel no sense of urgency to express an opinion on this topic simply because you seem to want me to do so has little to do with intellect. I have no idea if you have any legal education. I have already said that I do not. Therefore my opinion would be an uninformed one. I fail to understand why it has such value to you. But, nevertheless, I feel no particular need to pose as an expert in constitutional law.
.
I’m happy for you that you have read both the Constitution and the bill. It is simply wonderful that you find no correlation between the two. I’m sure that carries a lot of weight with the folks at the tea party. And you may be correct. On the other hand you may be one of those morons who thinks that Secession and Nullification were not settled 150 years ago and are still open questions. That would cause me to give a little less weight to your opinion on this matter.
.
I will continue to read Brian’s opinions on the matter. He does have a legal education and he generally makes tight arguments and cites relevant case law to support them. He may accurately predict what the Court will ultimately do. Or he may not. But his is an informed and well supported opinion. I prefer to read what those who have some actual knowledge of the law have to say on the subject. That is likely to provide a much better insight into what may actually happen in this case.
.
I will continue to refrain from giving an uninformed opinion on the subject. I’m sorry that disturbs you so. I can’t for the life of me imagine why it does. But thank you for your deep interest in my opinion.
“Jack, my but you are an angry man.”
.
Yes, I DO get angry when my country is being destroyed.
.
“The fact that I feel no sense of urgency to express an opinion on this topic….”
.
Then why did you respond with your inane “Article I, Section 8″ nonsense in the first place? If you think it is there, then quote the appropriate part and show how it relates to any part of the new law. If you cannot do that, why did you bother responding?
I’m still working on my analysis, but I want to step in here regarding the whole “Republicans proposed something similar in 1993″ argument.
.
Yes, they did. But as I noted before, the two major Supreme Court cases that finally put a halt to the ever expanding role of the commerce clause – Lopez and Morrison – were 1995 and 2000 cases, respectively.
.
Prior to those decisions, it seemed likely that the Supreme Court would have ruled that whatever Congress did was within its power, regardless of how tenuous the link to interstate commerce was. That changed in 1995 with Lopez and was confirmed in 2000 with Morrison. At that point, everyone laboring under the belief that the Congress could do whatever it wanted if it spoke the magic words “interstate commerce” should have recognized that things were different. Had the Republican version with mandates passed in 1993, they very well could have been overturned by the Lopez court.
Jack and Dan,
The back and forth between you two, while amusing, is getting repetitive. Dan, I would think you are specifically looking at Article 1, Section 8, Clause 1 (”Powers of Congress – Taxation”).
“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.”
I’ll be the first to admit that, besides a few years as legislative staff member and a few land use law courses, I have no legal experience. I can, however, see where Dan is coming from. I don’t buy into the “Right” to go uninsured, since there are always consequences. If an uninsured person requires medical attention and cannot pay, part of the burden falls on the taxpayers. Right there, that seems to invalidate the entire right to go uninsured argument, as the government becomes responsible. Furthermore, this legislation, while I don’t support it, seems to make use of the “General Welfare” clause and the uniformity requirement. I obviously may be completely wrong and will defer to any qualified legal minds.
LoudouninNC, one of the things my Con Law professor drilled into our heads was that the “general welfare” language in Article I Section 8 does not confer any power on the federal government – the power conferred there is to tax and spend, not ‘provide for the general welfare.’ As I am told, bar examiners love to throw that line in all the multiple choice questions about federal power to screw with our heads.
.
That clause simply states that the federal government can tax and spend, and the Supreme Court has never had a case where they’ve held that a Congressional appropriation wasn’t being spent “for the general welfare.” The Court is very cognizant of its role in the government, and were it to start trying to substitute its judgment for the judgment of Congress, they would soon find their appellate jurisdiction being reduced, their clerks all fired, and the locks changed on the Supreme Court building. So they generally defer to Congress when it comes to taxing and spending money.
.
That being said, I think the issue here is different and thus warrants closer scrutiny.
“Then why did you respond with your inane “Article I, Section 8″ nonsense in the first place?”
.
Jack, I might just as easily ask you why you asked your question in the first place if you aren’t willing to accept a direct answer to it. You didn’t ask for a full blown legal opinion (which as I have repeatedly pointed out I am not qualified to give). You asked from what part of the Constitution such authority would derive. And I answered you. I believe correctly.
.
If you had asked what Amendment to the Constitution guarantees that I may freely practice my religion, I would have responded with the First Amendment. That would have been a correct response. Would you have then harangued me for a deeper analysis of case law involving the First Amendment? And had you harangued me to give it I would have demurred because of my lack of legal qualifications and standing. But my simple and direct response, “the First Amendment”, would have been completely accurate.
.
The same is true of my simple and direct answer to your question. Article I, Section 8 is the correct answer.
.
I do have a suggestion that may be helpful with your anger problem. Have more faith in America. Our institutions are strong and resilient. Don’t be so fearful. They, and we, have weathered much and come through it just fine. There is little reason to doubt we won’t continue to do the same well into the future.
.
There is an awful lot of talk about our Founding Fathers these days. And what they would think about one thing or another. Well, I don’t have a Ouija board to try to ask them directly, but I strongly suspect that they would be both pleased and amazed that their creation has endured and thrived. And I think they would be optimistic about our future.
.
I have lived a long time and I have listened to a lot of people say the sky was falling and the world was coming to an end and the country was being destroyed. And every last one of them was wrong.
.
As individual American citizen we each possess more power than the vast majority of human beings who ever lived their lives out on this planet. For an American to express such despair is shameful.
.
Take a deep breath and screw your head on straight and you will realize that what I am saying is right. If you are unhappy with what is being done in Washington, there is an election in November. Get to work. Democracy is a wonderful thing.
.
But stop with that pathetic “my country is being destroyed” nonsense. For God’s sake! Have some faith in America.
First, loudouninNC, you will notice that the phrase is “to pay the Debts and provide for the Common Defence and general Welfare OF THE UNITED STATES.”
.
Congress does NOT have the power to pay PERSONAL debts, or to provide for PERSONAL defense, or to provide for PERSONAL welfare.
.
Your second argument, that the burden of the uninsured falls on the taxpayer, falls to the above argument, because Congress has no power to provide health care for individuals in the first place. Your agrument comes to, “Well, Congress has already overreached to pay for people’s health care, so it can overreach so that it doesn’t have to.”
.
Here’s an idea: DON’T PAY FOR PEOPLE’S HEALTHCARE IF THEY REFUSE TO BUY INSURANCE!
Brian, thanks for your input. The more recent cases may well come into play I suppose. At any rate they let those Republicans who were in the Congress in 1993 off the hook for their previous positions.
.
This will be a fascinating case to watch as it develops.
.
Do you think Cuccinelli’s case will even be heard now? Since the provision his suit objects to doesn’t take effect until 2014? Might we be in limbo until then? Or do you think the case will be heard now?
Dan, how can I have faith in America when people like you, who simply do not care enough to read the Constitution, are voting for people such as Joe Biden, who did not even know that the position he was running for was part of the Legislative Branch, not the Executive? When people do not care about the Constitution enough to read it and ask, “Is this law within Congress’s power,” but vote themselves unpaid-for goodies, how can I have faith in America?
“Here’s an idea: DON’T PAY FOR PEOPLE’S HEALTHCARE IF THEY REFUSE TO BUY INSURANCE!”
.
There is a problem with that idea. Existing law.
.
If someone presents at an emergency department gravely ill or injured it is illegal to refuse to treat them. If they have no insurance and no money they still must be treated. If they don’t pay the bill is still there. It ends up being paid by those of us who pay premiums to health insurance companies (roughly an additional $1100 on our premiums) or by the taxpayers.
.
That may be a point in favor of Congressional authority to mandate individual coverage. Or the cases Brian cites may hold sway.
.
As I say, it is going to be a fascinating case.
Jack, I can’t make you have faith in America. I can only point to the abundant reasons why one should have faith in America and hope you can see them clearly.
.
Losing an election or two is hardly sufficient reason to lose that faith.
.
And I thought it was Vice President Cheney who was confused? Didn’t he want to place the office in BOTH the Executive and Legislative branches? Whichever was most convenient to him on that particular day?
Points taken. My only experience with “General Welfare” comes from police powers associated with land acquisition, zoning, and other land management ordinance language. My background is in Urban Planning/Development and not health policy or law.
That being said, I look forward to seeing what happens with this.
Just asking, you care comparing apples and oranges. State’s legislating that you purchase car insurance to drive is one thing, driving is not a right, it is a privlege – and the states can dictate the hows and whys.
loudouninNC, you are talking about STATE powers there, not the powers that the States gave to Congress when they ratified the Constitution.
.
Dan, what is abundantly clear is that you, and many like you, neither know or care about our Constitution. Since that is THE founding document for our current form of government, created by “We The People of the United States,” if We The People no longer care about the Constitution, then we are lost.
“If someone presents at an emergency department gravely ill or injured it is illegal to refuse to treat them.”
.
Exactly my point, Dan. There is nothing in Article I, Section 8, that gives Congress the power to make such a law.
.
But you are claiming that they have the power to make another law simply because they have to fix the consequences of a prior unconstitutional law! Brilliant.
Jack,
Another example of a stupid law requiring state and local tax dollars applied to public schools to accept illegal immigrants to our schools. Then the taxpayer is force by Congress to provide “English as a Second Language” Teachers — what happened to English as a primary language and the same illegals apply for free school breakfast and lunch! What a deal no wonder the illegals do not want to go back to their country.
If Obama gets his way another 11 million more voters for the Democrats, that will keep them in power for 30 years.
LL,
understand that I am not a constitutional lawyer, nor have I yet received any formal legal training. this is just what i have read in the few days since the passing. it appears that this bill falls under the commerce clause because it effects the economy of the entire country. the supreme court has already ruled on a similar issue. it this makes it to the SC it will surely be upheld under the commerce clause, but the question is to what extent does congress have the power to regulate interstate commerce. i dont know, that is an issue for the sc to decide. but to simply toss out the bill because it violates states rights is absurd because it doesnt, it falls under commerce clause, and the virginia law against is nullified under the supremacy clause. from a political standpoint, do you really think that the President and congress would have spent nearly a year on this bill just to have it deemed unconstitutional in the courts? i am pretty sure they had many, many constitutional scholars examine the constitutionality before a vote as taken.
..
and your point about the fee, it isnt what it is essentially about, but it is about what it is really. does the congress have the power to regulate commerce? Ye. does interstate commerce encompass healthcare? Yes.
Keep reading Local.
Dan
I asked you some very specific questions for which you have chosen to ignore. Very specific q’s relevant to the Commerce clause.
“and your point about the fee, it isnt what it is essentially about, but it is about what it is really. does the congress have the power to regulate commerce? Ye. does interstate commerce encompass healthcare? Yes.
local gop
on March 24th, 2010
Does the lack of purchasing health care constitute Commerce ? NO
Does opting out ( to do nothing or select to NOT participate ) constitute Commerce ? No.
When an offer is made , whether it is buying a candy bar or an insurance policy it takes two to tango. If you decline the offer and elect to do the opposite of make the purchase , which would be considered commerce, you are then engaging in the exact opposite. So, therefore to levy a fine against those who opt out of engaging in commerce using the commerce clause as justification sets both logic and the law on it’s ear. When you hang your argument on the commerce clause you have to actually be engaged in commerce.
Two things are not in the Bill that Obama said yesterday were in the Bill:
1. the mandate to allow children up to the age of 26 to stay on parents’ insurance; and
2. the mandate not to disallow pre-existing conditions of children.
The first is in the reconciliation bill. The other is just an oversight.
*
These are two of the most touted provisions of the new bill…What other “mistakes”/ unintended consequences/holes/ etc are there? gives not a lot of confidence about the rest of those thousands of pages…
http://www.theweeklystandard.com/blogs/oops-two-other-things-obama-says-health-care-reform-will-do-year-doubt
Dan, the standing issue you’ve raised is what’s taking me so long to get my analysis done.
Let’s take bets on whether this gets to the SCOTUS. I’ve got a dinner at Tuskies that says this doesn’t get heard at the high court.
.
Anyone?*
.
.
.
*Limited to two commenters.
I’ll take the other side. I think Roberts is spoiling for a case like this.
I’m interested in G’s comment and the requirements he’s placed around “commerce”. If one person in Virginia acts in a way that would be considered commerce, does that not then provide all Virginian’s fall under the act of commerce?
.
In other words, is commerce viewed in the context of the individual or is it viewed in the context of the laws/statutes that govern those individuals?
Cato is in.
I’ll take the bet too, Ed.
Gstone,
thats where you are wrong. i will post more details later though. not participating in a program does not mean that you are not subject to the commerce clause.
Here is the standing analysis by a Virginia law professor:
http://www.cnn.com/2010/OPINION/03/24/jost.health.bill.challenges/index.html
Other law professors and the US Commission on Civil Rights assert the new health care bill is unconstitutional.
http://www.examiner.com/x-7812-DC-SCOTUS-Examiner~y2009m8d18-Legal-experts-and-Civil-Rights-Commission-attack-Obama-healthcare-plan-as-unconstitutional
Here is an article written by a professor of constitutional law at Georgetown University Law School:
http://www.washingtonpost.com/wp-dyn/content/article/2010/03/19/AR2010031901470.html
“try to get a bipartisan immigration bill passed this year that would legalize the estimated 11 million illegal immigrants in the country.”
Great. What’s another 13 trillion dollar hit after all we just blew??
Triple A status is gone folks. Welcome to the year China surpasses us as the world’s newest superpower. Courtesy of the libs.
“Dan, the standing issue you’ve raised is what’s taking me so long to get my analysis done.”
.
Brian, I anxiously await your analysis. I am more familiar with Cuccinelli’s suit. And I have doubts it will be heard now. You would have a much more informed opinion on that than I would.
.
I don’t yet know much about the suit filed in Florida by the other 13 Attorneys General. Might their suit involve issues that would give it standing to be heard immediately even if Cooch’s does not? If these things are booted out of court with the prospect that they will be refiled at a later appropriate time no one will be satisfied and a lot of people will be left in limbo.
.
Apart from the legal issues I have read some speculation on some wild political scenarios that could result from the suit if successful. One has a quick trip to the Supreme Court and a victory for the anti-health care forces. But with the twist that the activist conservative justices contrive to rule overly broadly as they did in Citizens United and invalidate MediCare as well. This would have the Republicans losing the senior citizen vote in much the same way the Democrats lost the South for a couple generations over civil rights. Only it would be a nationwide disaster for them rather than limited to one region.
.
It would be deliciously ironic, but I don’t think it is very likely.
.
Anyway, I await your analysis. It will no doubt be a refreshing change from the speculation offered with such certainty by those with little knowledge of the law.
Dan, if your are incapable of reading the Constitution, as you claim, how can you possibly read a legal analysis?
It will go to the SC. I like the Guinness at Tuskies.
re: Monk’s comments on AAA rating: http://www.bloomberg.com/apps/news?pid=20601087&sid=aYUeBnitz7nU
Jack, I realize you fancy yourself an expert on the Constitution. You have lots of company. We have recently been treated to lots of folks who seem to have just now discovered the Constitution and reached the startling conclusion that it somehow supports every crackpot theory of governance they espouse. Of course, they disregard history and any and all previous court rulings that establish the legal precedents that demonstrate that so many of their crackpot theories are so far off base as to be outside the stadium altogether.
.
I assure you that not buying into the “legal theories” of the modern day secessionists or the tenthers or those who believe nullification is valid does not indicate poor reading comprehension. It simply indicates an unwillingness to engage in the same sloppy reasoning those crackpots engage in.
.
Brian’s legal analysis will undoubtedly take into account all the legal precedents that are pertinent to the future ruling on the HCR law. Both those that would support its constitutionality and those (especially the 1995 and later ones I would imagine) that might support ruling it unconstitutional. But I am sure he will offer something more thought provoking than your uninformed and completely unsupported “I read it and it is unconstitutional” form of “analysis”.
.
In your study of the Constitution have you not yet gotten to the part about the Judicial Branch? It’s really cool. You should read that part too.
.
If you study further you will find that the Court generally gives the Legislative Branch very wide latitude in matters like this. For very sound reasons rooted in the Constitution. As opposed to just pulling an opinion out of their asses like you do.
.
The Court may well rule portions of the bill unconstitutional. But it is hardly a slam dunk either way.
Loudoun Lady, do you know if Guinness is going to be covered under the new health care reform? It has been acknowledged to be beneficial to one’s health for years now.
.
If we could get prescriptions for it and have insurance pay for a portion of each pint that would be very helpful. There is, after all, supposed to be an emphasis on preventive medicine as a means to both cut costs and achieve better outcomes.
.
If we all had a bellyfull of Guinness I don’t think we would need to see the doctor nearly as often. And the outcome would be marvelous.
Yes, I do fancy myself something of a Constitutional Scholar. Trust me, law school is WAY easier that Engineering, and people are less likely to die when you get it wrong. (Having, literally, millions of lives riding on your getting something RIGHT really brings focus.)
Yes, the courts have given considerable latitude to the legislature. I do not believe either branch has properly performed its “checking” role on the other. But as to the Constitutionality of a particular provision of a law, since the powers of Congress are specific and enumerated, it is incumbent on the proponents of the law to show which specific, enumerated power that law is written under.
As such, the Attorneys General should subpoena the sponsors of this law and ask them to explain which of the enumerated powers they were exercising when they passed the law.
Re: standing issue–
*
“The whole point of the health freedom act in Virginia is not that the state is acting in its own defense, but that it requires the state to act as a legal matter in the defense of an individual being compelled by the federal government to purchase a product or suffer a fine.”
*
http://newledger.com/2010/03/the-individual-mandate-can-states-opt-out/
1994 CBO memo says individual mandate to force purchase of health insurance is unconstitutional–see first paragraph of legal analysis by Heritage Foundation lawyers and Georgetown U. law professors:
http://www.heritage.org/Research/Reports/2009/12/Why-the-Personal-Mandate-to-Buy-Health-Insurance-Is-Unprecedented-and-Unconstitutional
Why was it illegal in 1994 and not now?
interesting article. http://www.politico.com/news/stories/1009/28620.html
“Trust me, law school is WAY easier that Engineering”
*
I dunno about that one chief. My undergrad was in comp sci and my post grad work was in applied mathematics and I’m flummoxed by legal topics on a regular basis. It’s a different sort of talent.
It is not illegal NOW, sally, because the statists reinterpret the Constitution to suit the moment, and at the moment it is inconvenient.
Sally, Because Obama said so!
I said Engineering, Cato. Sorry, but I know many, MANY people who flunked out of Engineering and went into Math and Computer Science.
Depends on the school I guess. Where I went EE and Comp Sci went hand in hand, and the degree offered was actually “Electrical Engineering and Computer Science.” Given that 25% of the entire undergrad population was enrolled in that program, you could say that we placed more emphasis on the school of engineering than most. Oh, and for the record I don’t know *anyone* who flunked out of say, aerospace engineering and ended up in the CompSci/EE track, as once you flunked out of the school of engineering you were gone, as all the core classes were equally brutal.
Gstone,
thats where you are wrong. i will post more details later though. not participating in a program does not mean that you are not subject to the commerce clause.
local gop
on March 24th, 2010
So then BOTH acts, the act of making a purchase ( exchange of good or service between two consenting entities ) and the act of NOT making said purchase are commerce ?
When I walk down the street , look into a window of a local shop and see something I like, go inside hand them my credit card walk out with the product I have engaged in commerce. I believe we can all agree on this.
I walk down the street, look into a window of a local shop see something I like yet make a conscious decision NOT to buy the product because I have no money, consider the purchase non essential or fear the wrath of my wife, whatever the reason, I have chosen to Not engage in commerce.
Both scenarios can not be considered commerce.
“In other words, is commerce viewed in the context of the individual or is it viewed in the context of the laws/statutes that govern those individuals?
edmundburkenator
on March 24th, 2010
Very interesting. I have thought the same thing. The bill or now law answers that question, IMO. It is the individual who will be fined, audited or jailed for non compliance. The law compels an indivual to make the purchase or engage in commerce. The Courts will have to decide if the Commonwealth has standing or if the same complaint must be made by an individual. It may be a moot point in that I suspect there are hundreds or thousands of individuals at the ready to make the same complaint. If the courts reject the complaints filed by the State(s) then this will get pushed down the road a bit in that it will take an individual to assert they were harmed ( have standing ) or their constitutional rights have been stepped on.
Hey Dan, you are going to replace the private sector with Government and that is going to reduce overhead. Have you passed that one along to Conan so he can hawk it in his negotiations with Fox?
And Dan, I feel so comforted that you will be looking out for me and my family in the detailed implementation of this bill. I am sure you know exactly what we need, how much of it we need and when we are going to need it. Please, instead, have the common decency to stay out of my life.
“Why was it illegal in 1994 and not now?”
.
Sally, unless the CBO was sitting in for the Supreme Court in 1994 it is not correct to say that it was “illegal” then, or now, based on their opinion at that time. We will get a ruling on that from the Court if and when they hear these lawsuits. Then we will know whether or not the CBO executive summary got it right or not.
.
There may be something in the law as passed that could potentially render these lawsuits moot. Maybe Brian can offer his thoughts on this when he posts his analysis. That is the opt out provision. The “Empowering States to be Innovative Amendment”. It allows states to opt out and set up their own program. And that program doesn’t have to include an individual mandate.
.
So maybe Cuccinelli really is wasting our taxpayer dollars with this lawsuit? The legislature can simply opt out.
.
Of course, it is much safer for showboating legislators to pass the bill they did and then have the AG use that as a pretext for filing suit. Opting out might have real negative consequences for their re-election chances. If the new law works well and is well received by the public, the voters in states that opt out may be very unhappy with legislators who voted not to participate. I wouldn’t look for too many states to opt out.
.
The Republicans in Georgia don’t seem to have read the law. Rather than opt out they want their Attorney General to sue too. He doesn’t want to waste the money. The Republicans’ answer is to instead waste the taxpayer’s money by calling for the Attorney General’s impeachment. I’m not sure on what grounds. I guess they want to impeach him for not being a Republican.
.
Anyway, the opt out may have some bearing on the validity of these lawsuits.
Yup, probably depends on the schools, Cato.
> The ‘Empowering States to be Innovative Amendment’.
> It allows states to opt out and set up their own program.
> And that program doesn’t have to include an individual mandate.
>
> So maybe Cuccinelli really is wasting our taxpayer dollars with
> this lawsuit? The legislature can simply opt out.
You seem to be contradicting yourself. Do States that “opt out” have to set up their own programs?
Let’s Be Free, go back and read my comment again. I said nothing about having any desire to make decisions about your life.
.
What I said was that we all need to watch carefully the implementation of this or any regulations on the private companies with which we do business. Otherwise we will get screwed by the big players who have all the money and influence with Congress.
.
This is true whether we are talking financial services or health insurance or anything else. You aren’t going to be sitting at the table but you can bet your ass that UnitedHealthCare or Goldman Sachs or whoever the big players are in any sector will have a place at the table. And they will be looking out for their own interests not yours or mine. That is why I counsel vigilance going forward. Make no mistake. Both parties whore for the big players. They both need to be watched.
.
“Hey Dan, you are going to replace the private sector with Government and that is going to reduce overhead.”
.
If you still think that this law replaces the private sector I don’t know what to say to you. That is so obviously not the case that I have to ask where you came up with such an idea? Or why you think the stock prices of the private health insurance companies that you inexplicably think are being replaced are skyrocketing. This is very much a private sector bill.
.
You may be referring to a comment about the single payer concept. A solution which I don’t advocate for by the way. And comparing the administrative costs of a single payer system with the current private insurance companies.
.
There is data to make that comparison. It is often used by advocates of single payer. We have long experience with MediCare, a single payer system. Medicare has administrative costs that are far lower than the private insurance companies. The advocates of single payer would argue that those extra dollars being siphoned off by the insurance companies are being wasted and would be better spent on patient care.
.
They have a point. But I personally believe we can work within the private system (as this law does) and make it function more efficiently for us.
“You seem to be contradicting yourself. Do States that “opt out” have to set up their own programs?”
.
Jack, I thought you had read the law? And even if you haven’t, you copied and pasted my comment that answers your own question.
.
The only question is what impact that provision has on the lawsuits. It may have none. But it may render them moot. We shall see.
There is no automatic opt out, each state has to apply to Sebelius, with a difficult set of standards to meet. I assume you read about it in the newsledger article I posted above. You need to re-read the article, because it concludes the opt out is not really an opt out, and that is just political spin from legislators, whose opinions on the effect of the provision is irrelevant.
*
So, Dan, you eagerly await Brian’s law student analysis (your BFF?) but dismiss the professional opinion of the CBO’s lawyers, responsible for impartially advising Congress, in 1994? I realize they are not the Supreme Court, but they are the entity responsible to advise Congress in making these decisions…
“So then BOTH acts, the act of making a purchase ( exchange of good or service between two consenting entities ) and the act of NOT making said purchase are commerce ?”
According to the supreme court, yes.
Gstone,
the difference between what you are saying and what the supreme court says is based in use. I believe it was “Heart of Atlanta Motel v US”. the SC held that since a significant portion of clientele came from out of state and made purchases, it could be regulated. 1 person not buying a good at a shop, as in your example, does not necessarily preclude that shop from being regulated through interstate commerce. Same with insurance. In the example sally gave, 1 person paying cash for a doctor visit down the road does not necessarily preclude it from being regulated by interstate commerce. what must be proved, however, is that health insurance is a significant part of the economy, and as the GOP talking points go, it is 1/6 of the economy, that’s significant in my book. for that reason, i believe the bill in principle would fall under commerce clause.
Sally, not a BFF. Never met the guy. But I enjoy his legal analyses. They are generally consistent and well supported.
.
I don’t dismiss the opinion of the CBO. But they are the Congressional Budget Office. They speak to the budgetary impact of legislation. I don’t think they are the go to guys on constitutional law.
.
I don’t question their ability or impartiality. Constitutional law just isn’t their wheelhouse.
local gop,
*
Each States has the equivalent of a Virginia’s insurance commission, which regulates insurance in the state. And each state has its own regulations in the interest of its citizens’ needs. Insurance has traditionally not been considered interstate commerce–which is what the Federal Govt can regulate. As you know, you cannot generally buy insurance across state lines…
*
Most legal scholars do question whether a non-activity, a non-purchase of insurance can be regulated and considered “commerce” which by definition is an act of buying something.
I can find no such State opt-out in the law.
http://frwebgate.access.gpo.gov/cgi-bin/getdoc.cgi?dbname=111_cong_bills&docid=f:h3590enr.txt.pdf
.
There are three state opt-outs:
.
ONE — Sec 1323(a)(3)(A) States may opt out having a Community Health Insurance Option available on the Exchange.
.
TWO — Sec 1333(b)(2) States may opt out of having Nationwide plans offered on the Exchange.
.
THREE — Sec 1303(a) States may opt out of having abortion coverage provided by plans on the Exchange.
.
Nowhere can I find where States are allowed to opt out of the law entirely, to have no Exchange at all, to not have their citizens taxed to support it, or to not have their citizens forced to buy insurance.
.
Please point us to that portion of the bill.
http://frwebgate.access.gpo.gov/cgi-bin/getdoc.cgi?dbname=111_cong_bills&docid=f:h3590enr.txt.pdf
That’s how 0bama will save Government Motors — simply REQUIRE everyone to buy a GM. After all, their NOT buying a GM impacts Interstate Commerce, so people can be required to purchase a GM!
Have you seen the new Camaro? You might want to go buy one.
.
Remember, Edmund is going to be a death panelist. If he sees one of those damned Toyotas in your driveway (assuming it didn’t decide to accelerate off the side of a mountain) instead of a proper American car he may have to recommend euthanasia as the treatment for your athlete’s foot.
.
Or you may be placed in one of those concentration camps that Congresswoman Bachmann is so sure are being filled with citizens foolish enough to fill out and return their census forms.
.
The modern Republican Party reminds one of the old Art Linkletter segment “Kids Say the Darnedest Things”.
.
Republicans Say the Darnedest Things.
Y’know, I’ve been down on Camaros since my best friend in high school got a brand new ‘83 Camaro. One week later, I had to pick him up at the dealer because it had broken down. I picked him up in my ‘63 Ford Fairlane 500.
Jack you must be old. “I’ve been down on Camaros” in today’s lingo means you really really like them.
Old? Did someone say old?
.
Edmund! Convene the Death Panel.
“1 person not buying a good at a shop, as in your example, does not necessarily preclude that shop from being regulated through interstate commerce. Same with insurance. ”
We are talking Apples and Oranges. Your making the case that the Feds CAN regulate the activity, if an activity exists.
Separate issue is can the FEDS fine an individual for not partaking in that commerce for which the FEDS are exercising federal oversight. Can they compel, order or instruct you to enter into a contractual agreement ( HC policy ) that you have no desire or interest to enter into ? NO
Again, Apples and Oranges.
Well, there you are. I am old. I thought “down WITH” something meant you liked it, and “down ON” something meant you did not.
.
Similarly, I thought the Constitution said what Congress COULD do, and anything not in there it could not do. YOU, however, think that Congress can do anything, so long as it is not specifically prohibited from doing it by the Constitution.
Dan, I feel very (actually incredibly) comfortable sitting across the table (or on the other side of a transaction) from Goldman Sachs (or anyone else for that matter) and making decisions about my finances and investments. And I feel very comfortable about sitting down with my family and our doctors and making medical decisions about our lives. I don’t need or want anyone to intervene in the name of a totally uncessary power struggle on my behalf. And if the idea is nevertheless to equilibrate Goldman Sachs or insurance companies powers the way to do it is to eliminate or reduce the special status and protection that Goldman Sachs and insurance companies have under the law. The answer is not to create more government power that resists other government powers improvidently granted.
And Mr. Brian, I am looking forward to seeing what you have to say. I wouldn’t get overly hung up on the standing issue because a.) it is an issue of when not whether someone has standing b.) the Court will look at standing with a view to its position on the merits (shocked that we may all be that it happens this) c.) Health care decisions are made for the long term with a view to the long term — the reality is people are already making decisions based on the bill, trying to establish standing based on this argument won’t fail the laugh test. My two cents.
Let’s Be Free, I think you miss the point. You don’t get a choice to sit at the table with Goldman Sachs and other large financial firms when the regulations that have such a huge impact on your family are written. You are completely unwelcome at that table because you don’t have sufficient money to compete with them for influence with Congress.
.
The same is true of all sectors. Including health care. How in the world do you think these guys got that anti-trust exemption? How do you think they have gotten away for so long with the stuff this bill now prohibits them from doing?
.
But UnitedHealthCare and others are not going to suddenly become meek. They will use their money and influence to try to get the best deal for themselves in the implementation of any and every aspect of this bill. Possibly at the expense of ordinary citizens. Unless ordinary citizens are vigilant in keeping an eye on Congress. Regardless of which party is in the majority.
.
It is a matter of dealing with reality. That ugly place where we all have to live.
Gstone,
yes, according to the supreme court. not partaking in that commerce doesnt mean that you are still not subject to the regulation. additionally, it is within the power of congress to tax. you say it’s a fee, it is a tax. no one is forcing you to buy health insurance, just get taxed if you dont. there is the difference.
That power to tax is for the purpose of raising revenue, not for punishing unwanted behavior.
The Bill specifically says the fine is not a tax.
The first part of Brian’s analysis is up. A good read.
im not sure how the distinction between a tax and a fine is drawn from a constitutional power, but it can be asserted that the authority to tax is interchangeable with the power to fine. since congress has the power to levy taxes, would they not have the authority to levy a fine?
futher, where was all this debate when states began passing auto insurance mandates? is the principle “well if the state does it, that makes it okay.”
I am still waiting for my resume to make it through all of the necessary hurdles (there was a hold up while the Senate considered Coburn’s Viagra Amendment).
.
Jack, don’t worry. When I am a Death Panelist, I will look favorably on you since you once drove a Ford Fairlane. My Galaxie 500 owed its complete and total sexiness to the Fairlane.
.
I went out today and picked out a sickle.
Jack that’s an old tired argument.
Local, Please read Brian’s explanation on states mandating car insurance and hopefully you will stop bringing it up. As Reagan used to say about our system of government, if you don’t like that VA (for example) mandates health insurance, you can vote with your feet – meaning MOVE. State have different powers as the federal gov’t – plain and simple.
It is a CORRECT argument, BO.
Remember, the Income Tax was declared unconstitutional. Hence the 16th Amendment, which reads, “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.”
Now, this “tax” is NOT a tax on income at all. So, because Congress did not have the power to tax individuals prior to the 16th Amendment, and the 16th Amendment specifically addresses income, the penalty in this law is not covered by that Amendment, either.
“additionally, it is within the power of congress to tax. you say it’s a fee, it is a tax. no one is forcing you to buy health insurance, just get taxed if you dont. there is the difference.”
Tax, fee it matters not. It is my hope that Brian’s explanation helps you figure this out.
Your making the case for the Gov’t to be able to tax you for existing.That is what this really is about. Taxing human existence.
The problem is – Local does not see anything wrong with this bill, period. This person is an active FCRC member. Wow.
LL,
where did i say that? when did i state that? several times i said that i did not support this bill. i am talking about whether or not it is constitutional. there you go again, lying about me. whether or not i support this bill has nothing to do with the legality of it. thats the difference between me and you, you allow your personal political agenda to cloud your judgement when it comes to whether or not something is legal. just because i think its legal does not mean i support it.
ll,
so let me get this straight. its ok for a state to force me to buy health care, but not the federal government. what if every state has this policy? then where do i move to?
http://capitalgainsandgames.com/blog/bruce-bartlett/1601/groupthink-right-would-make-stalin-proud
.
It seems many at AEI like the bill too, but were told to shut up.
.
You know, the donors don’t like it when you are working for a conservative think tank and you agree with the Obama.
You know, the donors don’t like it when you are working for a conservative think tank and you agree with the Obama.
edmundburkenator
on March 25th, 2010
Not that this is related, but I thought you did not like this bill.
“It seems many at AEI like the bill too, but were told to shut up.”
I’ll bet there is stuff I would like also. However, the stuff I don’t like trumps the stuff i do.
I will bet there are those conservatives who like some of the bill too however, simply can not and will not even consider it because of the fact that it compels them to buy a product. I know this is my major issue although from a business owners standpoint the more I read about it the more I dislike it. Aside from the core constitutional issue the costs are simply more than we can bare. *
I used to know the numbers cold, but age has taken its toll. If you research the Gov’t numbers ( projections ) on SS and Medicare you will see that they were not just off but way off. Poor projections with a whole bunch of static number crunching as is the Govt’s tendency has us upside down in a very bad way. This mindset that because these programs are popular they can be run into the red forever is insane. I truly hate having these discussions with some because it almost always reverts back the people love it so it is untouchable. Untouchable right up to the point when it collapses and then those same folks are pointing fingers at anyone in the room wanting to share in the blame. Specific to the HC bill I take the president at his word. He has said he wants a single payer system. He also said that he knows it will take many years, I believe he said between 10-15 years for that to happen. he may have said 6 to 10 yaers I will have to watch the interview again. The insurance companies will make out like bandits for a period of time. They will get a surge of new customers. Those less nimble and unable to deal with the changes will get gobbled up, there will a lot of consolidation. As time goes by those Too Big to Fail will fail due to shrinking profit margins. They simply will not be able to remain solvent under the crush of costs mandated by the Gov’t. The Gov’t will be the last man standing and you will then have a single payer system. The president has laid this out on video interviews over the last couple of years. His plan or projection will indeed be successful unless of course we implode fiscally first.
I don’t like penalizing/silencing smart conservatives and the associated group-think.
.
But this is the legal thread and I shall not hijack it.
I dunno Ed. If Frum is the only source color me skeptical. The way the guy gets attention/traffic is to posture himself as some kind of conservative Cassandra. MSNBC etc. eat this up of course and give him plenty of play. He’s like the Glenn Beck of the moderate crowd IMO, both have their schtick.
Hey, I’m not a huge Frum fan either, but Bartlett got the same treatment.
.
Glenn Beck is in his own special category of stupid.
.
I was thinking about this the other day and I’m sure if there is a market play, you’ve done it already. The bill could be a goldmine for the right wing media and the stuff they sell. The stupid will flock together and there is money to be made.
Local, Have you ever heard of trying to change a law in the legislature? Holy Shit man, where did you come from – Atlas Shrugged land? If you don’t like a states regulations, you join forces with other individuals via your local party (in your case, the wrong party) or likeminded people and attempt to change them. We just ended our legislative session here in VA, if you had a bug up your ass about regulating car insurance then your first place to start would be your delegate and State senator. If they don’t listen to you, and no one wants to join your cause, and you have no allies, no one is forcing you to stay in VA. If I don’t want HC, I am fined and the fed gov’t can not impose a fine or fee for a mandates service. Are you implying I should leave the country and give up my US citizenship to avoid paying a HC fine?
Please stop trying to compare state car ins and mandating health insurance, it is pretty obvious you haven’t read Brian’s post – but sadly, I don’t think you understand the difference. You are really scaring me Local, it is shocking that you keep bringing this point up.
*
Where exactly did you say you didn’t support this bill? You can not have a discussion about the constitutionality of this bill if you don’t understand the difference between state regulations and federal enumerated powers.
“I’m not a huge Frum fan either, but Bartlett got the same treatment.”
*
I actually enjoy reading them both from time to time, I don’t always agree but they’re both thoughtful guys and it’s important we have those voices in the tent. Just saying that they (like all professional operatives) are opportunists. BTW, I think you’ll enjoy this somewhat tangentially related piece (Sowell is my all time fave): http://article.nationalreview.com/419693/intellectuals-and-society-/thomas-sowell
*
“I was thinking about this the other day and I’m sure if there is a market play, you’ve done it already.”
*
I made some nice cheddar long some of the hospital companies, when everyone and their brother pyramided into short positions last Friday. The fear trade (gold) is pretty much played out. I’m sure there’s some extra pennies in that trade but they’re going to be made by someone else. Honestly I’m sitting in 80% cash and the balance short treasuries and euros. A lot of what’s going on currently isn’t rational and the market can stay irrational a lot longer than you can stay solvent.
Do you really agree with the premise of that Sowell piece?. I quit reading that guy about three years ago and reading that reminded me why.
.
This isn’t the legal thread it turns out, so I will comment on this thought by G about Obama’s ultimate goal and intellectuals (for Cato) who are responsible for much of the good in the world as well as the bad.
.
First, Obama is a politician. He had to beat Hillary Clinton. You remember her? He may actually think a SPP is best, but he knows he’s not getting there. Which leads to my next point.
.
Obama is a pragmatist. There are few of these in the R party at this time. Do you think he would have agreed to tort reform for a handful of R votes? You bet he would have. R’s decided that fisting Obama was more fun than getting tort reform. So we all got fisted. Thanks Cantor/Boehner. Obama knows what is possible (at least up to now) and what is necessary. Which leads to:
.
The pivot. I think most of the intellectuals in what you call the liberal or progressive camps are coming to the realization that they got what they wanted on a macro level. The big three are in place: Social Security, Medicare, and Health Care. Sure, there are the nutjobs that want to see government grow and grow, but to your chagrin (and also to your relief) the political intellectuals on the left have no desire at all to see Western European style socialism. It’s time for fiscal restraint. In the coming years I think you will see Obama begin to show signs of this restraint. He had to get everyone in the boat before he could do this and HCR is the boat.
.
Sure there will be battles around the edges of this HCR bill for a long time to come, but these are battles. The war – as far as big government liberalism goes – is over.
.
What do you think Cato? You’re a strategist.
“Obama is a pragmatist.”
*
Well, I have to quibble with you a bit on this one. Pure pragmatism in January 2009 should have led you down a path of doing something unprecedented and bold around job creation, in my opinion. Think something completely radical (but temporary) with the tax system, sort of like “only Nixon could go to China.” Think about what things would have been like had he stoked GDP growth up to ChiCom levels (10%) and taken a serious bite out of unemployment. The man would have been an unstoppable juggernaut; it would all but guarantee a 2nd term. Instead, he chose the most politically bloody, divisive path available to him. That’s not the path of a pragmatist.
*
As to intellectuals, my oversimplified takeway from the Sowell piece is that raw intellect without the benefit of experience can sometimes be dangerous. Never having to face the consequences of idea execution breeds an attitude akin to that of a child playing with his toy soldiers.
*
“The war – as far as big government liberalism goes – is over”
*
I think that if all things continued on a linear trajectory you might well be right. I don’t think this will be the case. There are some powerful outside influences, both economic and geopolitical, which will impact us in the next several years that will require us to rethink universal “truths” that we previously enshrined (Social Security, Medicare, and now Universal Health Care). Right now I think we’re in the eye of the storm. It may not happen this year or next, or even for five years, but rest assured that there will be a violent reckoning for the past 80 years of lavish social welfare and expeditionary war spending. And when that happens, the 2nd front in the war on “big government liberalism” will be opened.
And I might add, I’d point out that liberalism doesn’t have exclusivity when it comes to big government. So I’d amend the above statement to “war on big government (fill in the blank).
“Right now I think we’re in the eye of the storm. It may not happen this year or next, or even for five years, but rest assured that there will be a violent reckoning for the past 80 years of lavish social welfare and expeditionary war spending. And when that happens, the 2nd front in the war on “big government liberalism” will be opened.”
Cato the Elder
Correct. This is why I have been so adament against this thing. I don’t care whose numbers you use this thing not only does not add up but as in usual fashion is built around projections that if history holds true will be off by miles. That being true ( see the history and escalating cost of SS and MC ) Washington will not be able to resist raising the debt ceiling on a pretty consistant basis from fear voters will toss em on their arse for not funding a new entitlement. One that should have never been created if for no other reason than the fact that SS and MC are swimming are deep deep in the red.
I like Frum, but he has a tendency to say the wrong thing at the wrong time. His Waterloo comments have been everywhere, and I think his analysis is wrong. This isn’t our Waterloo, because we didn’t start this war. It could have been Obama’s, but it wasn’t. I think it’s likely it will turn out to be his Asculum.
.
That being said, Frum should have covered himself a bit better. He worked for AEI, and their donors aren’t going to appreciate his criticism, especially when it’s not accurate. I have been willing to criticize the party and our leaders when I’ve felt it’s necessary, but there are some times when discretion is the better part of valor. Frum hasn’t apparently learned that yet.
LL,
i am trying to draw a discinction here. you seem to have no problem being forced to buy healthcare, because you seem to be defending a states right to do so. So the problem isnt the healthcare, it’s who is carrying out the forced purchase of healthcare. a state can trample rights just as easily as the federal government can ie slavery. before the civil war, states were seen as a protector of rights, but the civil war changed a lot of that and states lost a lot of powers and became subject to a stronger federal government.
“I think it’s likely it will turn out to be his Asculum”
*
I can’t remember which clever pundit said it, but I read recently that the HCR battle was compared to Borodino as opposed to Waterloo. I thought it was appropriate, as Borodino was a victory for Napoleon, albeit at a great cost.
*
Borodino was the last time Napoleon was on the offensive in Russia. The French forces were extended and without normal supply lines. Napoleon stubbornly attacked “Redoubts” which were heavily fortified Russian positions at great cost to Le Grande Armée. French casualties totalled about 35% of their total force, including many talented officers, and they eventually took those positions but the army was never quite the same. The Russians withdrew the majority of their forces before it was too late, and also took heavy losses, but lived to fight another day eventually forcing Le Grande Armée from Russia. There’s a lesson here…
and where the hell did i say anything about car insurance? you brought that up….
oh thats why i brought up car insurance…to ask you point blank…if states were to adopt an identical healthcare measure, but on the state level, would you then say its unconstitutional? you seem to be throwing the baby out with the bath water. “it’s ok for a state to trample my rights, but not the feds.”
Local, do you not understand that the national government and the state governments operate under different Constitutions?
.
Our national Constitution specifies what powers Congress has, and that those specified powers are the ONLY powers Congress has, and any other powers belong to the States and the People. As such, every law Congress passes MUST fall under one of those specific, enumerated powers. I ask you, which one does this fall under?
.
So, the U.S. Constitution itself says that the States have powers that the national government does not.
“I read recently that the HCR battle was compared to Borodino as opposed to Waterloo. I thought it was appropriate, as Borodino was a victory for Napoleon, albeit at a great cost.”
.
Cato, I am not sure that is an accurate assessment. I think something Josh Marshal wrote this morning may be more on point.
.
“Big fights and wins don’t deplete political capital; they create it.”
“Big fights and wins don’t deplete political capital; they create it.”
*
Perhaps. That sounds more like wishful thinking from your side though. I might be more inclined to believe that statement if it was modified to say “big fights and wins that are universally popular create political capital.”
*
Aside, the President is still going hither and yon selling the benefits of HCR when he could be talking about other issues. That’s an awful lot of selling for something that should have sold itself.
Local, How is car insurance regulation at the state level unconstitutional? The states have the right to regulate. If I don’t like it I can try to get it changed or leave. Why do you think so many seniors flock to FL? Because there is no income tax. Rather than fight the fight in their own state – they MOVE. They don’t call file suit with the federal govt because it is not allowed.
*
Jack is right to point out that you are missing a fundamental understanding of the difference between Federal and state powers.
*
Further, on your commerce clause analysis – a great quote from Ken C: ““Just being alive is not interstate commerce. If it were, there would be no limit to the US Constitution’s commerce clause and to Congress’s authority to regulate everything we do.” Just because we engage in commerce or are alive is not a defense.
Cato, I guess you could call it selling. Or you could call it controlling the political narrative and the message.
.
The Republicans seem to be planning to campaign on the slogan of “Repeal and Replace”. I imagine we can expect to see the president making very certain the public understands exactly what the Republicans plan to repeal. A public that understands that there are no “Death Panels” to be repealed (sorry Edmund) but that the prohibition on lifetime or annual caps and the prohibition on tossing your child off a policy for a pre-existing condition are what the Republicans are planning to repeal will be a public less likely to want to give the Republicans power to do that.
.
Having done that I would think the next step would be to press the Republicans for some specifics (anything specific really) about what they mean to “replace” it with. As others have pointed out, they seem to want to replace it with nothing but adjectives. We hear them say things like “honest” and “affordable” and “common sense”. But they don’t say what that means. There is nothing that spells out anything specific. They seem to be saying they want to repeal this bill and “replace” it with “baseball, hot dogs, apple pie and Chevrolet”.
.
I think the president’s trip to Iowa was framing the debate for the Fall.
1) i didnt say that car insurance wasnt constitutional or was not within states’ rights. obviously states have more authority over internal regulations than the federal government does.
2) the car insurance point was to draw out whether or not you believe it is ok for a healthcare type regulation mandate at the state level. basically, do you think it is ok for states to mandate health insurance purchases? and it seems a little silly for you to be ok with states trampling rights and not ok with the federal government doing it. because either way, you are forced to buy healthcare in this hypothetical scenario.
3) for the record, i am opposed to any mandates, whether through the state or federal government.
4) from a legality standpoint, it is going to come down to the scope of the commerce clause. this extent of regulation is unprecedented in that it has never gone this far before. but size of a regulation does not necessarily mean that the regulation itself is unconstitutional. it may very well be ruled that it falls within the constitutional role of congress under the commerce clause. i am not a constitutional attorney nor an expert on the commerce clause. but from what readings i have done, i can tell you that there are many so called experts on both sides of the argument. before jumping to a partisan conclusion and attempting to make a constitutional issue political, we need to make sure that we examine all sides of the argument so when the supreme court does grant cert, the decision is the correct one, not just the politically correct one.
All this discussion of the Commerce Clause and the taxing authority and such brings to mind in depth discussions of the Infield Fly Rule by those of us who grew up breathing, eating, and sleeping baseball. That is to say, intensely interesting to some but deathly boring to most.
.
Where is Eric Massa when you need him to stir things up and make them interesting?
Local, If it is your opinion that Ken C and dozens of other Attorney generals are filing suit to protect their states, all along the same constitutional lines – as political correctness, so be it. To me and millions of others in dozens of states, this is not a constitutional issue being made political, it is merely a constitutional issue, period.
*
I am not OK with states trampling on my rights, that why I fight over reach on the state level too, particularly as it pertains to my 2A rights. However, infringing on my rights, whether it is on the state or federal level, still has nothing to do with regulating a privelege like driving (it is not a right at the state or federal level!). Registration of vehicles, insurance and enforcement of the laws of the road are within the states powers. There is no doubt we are regulated to death, at every level. If I had the resources, energy and time to fight the nitwittery on a daily basis I’d do it, but I am not going to move out of state because they regulate I must carry car insurance or something similar. BTW, Is there a state that does NOT require car insurance? I don’t think so.
“this is not a constitutional issue being made political, it is merely a constitutional issue, period.”
.
Loudoun Lady, this is a constitutional issue that it is certainly appropriate to have the courts rule on. And I don’t think it is improper for Cuccinelli to file suit (although the timing may not have been correct, but the courts will decide that too). But it is impossible to deny that there is also a very large political component to these challenges.
.
I can’t read the minds of all the AGs who have filed these suits. But I suspect that some of them wouldn’t bet too heavily on their own chances of success in court. Yet they are still not losers if they are doing what the folks back home want and those folks reward them at the ballot box.
.
I’m not complaining about that. That is simply reality. But the politics of this is undeniable.
Dan, The above quote was my opinion and you have yours. There is politics in everything but I think the over riding issue for Virginia is constitutionally correct and KC is very serious in his reasons for filing. I applaud him in this effort.
*
I don’t agree there is a “very large political component” for most states and AGs in filing. I think Obama and his administration are dangerous and the states are doing what is right and proper to defend their citizens. Therein lies the problem – you don’t see it that way. I get it.
LL,
when i said politically correct, i did not mean it as in “PC”, more as in it is the right political move for a politician who has a base of supporters and wants to move on to a higher office. Cooch is a politician, whether you like it or not. Everything he does will go through a political filter, if you will, to ensure that things don’t come back to bite him when he decides to run for higher office.
OK, Dan, let’s look at some ideas.
.
1) Tort reform.
.
2) Require insurance companies to pay for coverage of any illness diagnosed when that policy was in effect, even if that policy is later cancelled. (If you get new can unsurance the day after an accident, does not the policy in force when the accident occurred have to pay for the repairs?) This simple change will prevent companies from cancelling policies when one gets sick, because they would STILL be responsible for the coverage. Also, it will prevent companies from raising premiums when one gets sick, for the same reason. Finally, another company will be willing to take someone with a pre-existing condition, because the new company would not be responsible for the coverage of that condition.
.
3) End employer-based group plans. If you were paying only 1/4 of the premiums, of COURSE you would want your auto insurance to cover oil changes, tire rotations, flat tires, tune ups, etc. So it is with health insurance. People take their kids to the doctor and McDonalds and expect to pay the same amount! Instead, allow employers to contribute to a employee Health Savings Account, with which the employee can purchase any insurance policy he desires, keeping the rest for other health expenses, such as HSAs are used now.